IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Reportable
Case No.: 16845/2018
In the matter between:
VUYISA ERIC NJIKELANA Plaintiff
and
MINISTER OF POLICE First Defendant
DIRECTOR OF PUBLIC PROSECUTIONS Second Defendant
Coram: Francis J
Heard: 4 February 2026
Delivered: 4 March 2026
__________________________________________________________________
ORDER
__________________________________________________________________
1 The plaintiff's claims are dismissed.
2. The plaintiff is ordered to pay the defendants’ costs of the action on scale C.
JUDGMENT
FRANCIS, J:
INTRODUCTION
[1] This judgment concerns a claim for damages arising from the plaintiff's arrest,
detention, and prosecution on charges of murder. The plaintiff, Mr Vuyisa Eric
Njikelana, was arrested on 23 June 2015 and detained for approximately 19 months
before being acquitted in the Western Cape High Court on 1 December 2017. He
now claims R17 million in damages from the Minister of Police and the Director of
Public Prosecutions..
[2] The matter has a complex procedural history. The plaintiff initially claimed for
unlawful arrest, unlawful detention, and malicious prosecution. However, prior to
the leading of evidence, the plaintiff abandoned his claim for unlawful arrest and
conceded that this portion of his claim had prescribed in its entirety. The claim for
unlawful detention was partially prescribed; the plaintiff now pursues damages for
detention from 11 September 2015 (being three years before summons was issued)
until his release on bail on 27 March 2017. The claim for malicious prosecution
was pursued in full.
[3] The issues of liability and quantum were separated and the trial on liability
commenced before this Court. The plaintiff was the sole witness in support of his
case. At the conclusion of the plaintiff's case, the defendants applied for absolution
from the instance in terms of Rule 39(6) read with Rule 39(13). That application
was dismissed, and the defendants were directed to proceed with their case. The
defendants called four witnesses: Warrant Officer Reney Abrahams (the first
responder), Captain Mlamli Sishuba (the investigating officer), Ms Arnell Vermaak
(the prosecutor who opposed bail), and Advocate Dumisani Koti (the senior public
prosecutor who conducted the trial in the High Court).
[4] The issues for determination are narrow but consequenti al: first, whether the
plaintiff's detention after his first court appearance was unlawful and attributable to
the defendants; and second, whether the prosecution of the plaintiff was malicious.
The plaintiff bears the onus on both claims.
THE FACTUAL BACKGROUND
[5] The factual matrix within which these claims arise is drawn from the pleadings,
the evidence led at trial, and the extensive documentary record comprising the
police docket, bail transcripts, and criminal trial transcripts. The parties agreed that
the documents discovered are what they purport to be, and no dispute exists in
respect thereof.
[6] On 13 June 2015, two adult males were brutally murdered in Witsand , Atlantis,
in what has been described as an act of mob justice or vigilantism. The facts of the
killing, as they emerged during the subsequent bail proceedings, were graphic and
disturbing. The two deceased were assaulted over a period of time, dragged from
one location to another, and ultimately killed.
[7] The police attended the scene on the evening of 13 June 2015. The first
responder, Warrant Officer Abrahams, arrived to find a large group of people and
what appeared to be a mound of plastic and tyres in the road. Beneath this covering
were the bodies of the two deceased. One person was found at the scene attempting
to set the bodies alight and was arrested.
[8] Captain Sishuba was appointed as the investigating officer. He attended the
crime scene o n the night of 13 June 2015 and returned the following day. On 14
June 2015, he noticed a trail of blood leading from the crime scene and followed it.
This trail led him to the residence of one Madodomzi Butshingi. When he arrived,
he observed a large crow d surrounding Butshingi. The situation appeared
dangerous, and Sishuba removed Butshingi from the crowd and took him to the
police station for his safety.
[9] Butshingi subsequently provided a warning statement to Captain Sishuba on 15
June 2015. In that statement, Butshingi implicated the plaintiff in the following
terms:
"Vuyisa who was also helping have dragged them outside the yard. When they were outside the
yard, I was not part of the assault. Vuyisa assaulted them until they bled and he had blood o n his
shoes."
[10] Captain Sishuba continued his investigation. He consulted with various
witnesses and received information from informants that the plaintiff had
participated in the murders. He did not, at that stage, have a fixed address for the
plaintiff and relied on an informant to locate him. Certain information from co -
accused 3, which implicated the plaintiff, had not yet been reduced to a sworn
written statement at the time of arrest or bail opposition.
[11] On 23 June 2015, Captain Sishuba, acc ompanied by other officers,
approached what he believed to be the plaintiff's residence. He knocked on the
door. A voice, which he initially believed to be female, responded that Vuyisa was
not home. Sishuba persisted, and ultimately the plaintiff opened t he door. Sishuba
identified himself, informed the plaintiff of the reason for his arrest, and arrested
him without a warrant in terms of section 40(1)(b) of the Criminal Procedure Act
51 of 1977.
[12] The plaintiff appeared in the Atlantis Magistrates' Court on 24 June 2015. The
State opposed his release on bail. On 18 August 2015, the plaintiff launched a
formal bail application. The application was opposed, and after hearing evidence
from the plaintiff and Captain Sishuba, bail was refused on 23 November 2015.
[13] The grounds upon which bail was opposed included: that the plaintiff was
charged with two counts of murder, which fall under Schedule 6 of the Criminal
Procedure Act; that he bore the onus to establish exceptional circumstances
warranting his release; that he was out on bail in a rape matter at the time of his
arrest; that he had attempted to avoid detection prior to arrest; and that he was
considered a flight risk.
[14] During the bail proceedings, the prosecutor, Ms Vermaak, outlined the Sta te's
case against the plaintiff. She stated that the State had three witnesses placing the
plaintiff at the first crime scene where the assault commenced, and two witnesses
placing him at the scene and alleging that he assisted in dragging the deceased out
of the yard and participated in the assault. The docket at that stage included at least
one exculpatory statement from Xolisa Lisa Silva, which did not implicate the
plaintiff in the assault.
[15] The plaintiff remained in custody following the refusal of bail. He was
transferred to Malmesbury Medium B Correctional Facility and subsequently to
Pollsmoor Maximum Correctional Facility. On 27 March 2017, during the course
of the trial, the plainti ff was granted bail in the amount of R1,000. His trial
commenced on 6 March 2017 and concluded on 1 December 2017, when he was
acquitted on both counts of murder.
[16] It is common cause that during the criminal trial, the State encountered
difficulties with its witnesses. Xolisa Lisa Silva was declared hostile. An attempt to
declare Dumisani Kheswa hostile was unsuccessful. Admissibility challenges were
raised concerning Butshingi's warning statement. The prosecution ultimately failed
to secure a conviction against the plaintiff.
THE PLEADINGS
[17] The plaintiff's amended particulars of claim allege that his arrest and detention
were unlawful. In respect of the arrest, it is alleged that members of the South
African Police Service " entered and/or stormed into the Plaintiff's home whilst he
was sleeping, awoke him and arrested him, without providing him with any
explanation and/or reasons for his arrest" . It is further alleged that the plaintiff
informed the police that he was " merely a passer-by, on his way to work " when he
saw members of the community assaulting certain persons.
[18] In respect of the prosecution, the plaintiff alleges that the prosecutor decided
to oppose bail and to prosecute in the absence of any facts suggesting that the
plaintiff was not a candidate for bail. It is alleged that the prosecutor failed to
assess relevant facts, including that the plaintiff had a fixed address, had no
pending cases, and did not know the witnesses. The plaintiff alleges that the
prosecutor misled the bail court, and that the decision to prosecute was taken with
animus injuriandi, in circumstances where the prosecutor did not believe in the
plaintiff's guilt.
[19] The defendants, in their amended plea, deny that the arrest was unlawful.
They plead t hat the plaintiff was arrested in terms of section 40(1)(b) of the
Criminal Procedure Act on the reasonable suspicion that he had committed murder,
a Schedule 1 offence. They deny that the plaintiff was not informed of the reason
for his arrest and plead t hat he opened the door to the police after initially
attempting to evade arrest by disguising his voice.
[20] In respect of the prosecution, the defendants deny that the prosecutors failed
to adequately assess the facts or that they opposed bail without j ustification. They
plead that after placing the necessary facts before the bail court, it was found that
the plaintiff had failed to establish exceptional circumstances warranting his
release. They specifically deny that the prosecution was malicious.
THE EVIDENCE
The plaintiff's evidence
[21] The plaintiff testified in support of his claim. His evidence -in-chief was brief.
He stated that on the night of the murders, he was at Thulani Nombewu's house
watching a soccer match with Silva and Thulani. They heard a noise outside and
went to inve stigate. He saw the community surrounding two men who were
eventually murdered. He watched for less than a minute and left the scene. He
stated that he was at no stage involved in the crime.
[22] In respect of his arrest, the plaintiff testified that the police knocked at his
door and asked for him. He was scared and said he was not there. Only after the
police identified themselves did he open the door. Captain Sishuba entered, pointed
a firearm at him, and informed him that he was being arrested for the murder of the
two men.
[23] Under cross -examination, the plaintiff's evidence unravelled in material
respects. He was confronted with the allegations contained in his particulars of
claim. He conceded that the allegations that his home was stormed while h e was
sleeping, that he was not informed of the reason for his arrest, and that he was
merely a passer-by on his way to work were incorrect.
[24] He conceded that he was not on his way to work but had been drinking at
Thulani's house. More significantly, he conceded that he was close to the assault
and that at some stage he " jumped over the deceased". This version was materially
different from his warning statement, in which he had stated: " Before I could come
any closer Mkhelele said I must go back ... I did not assault anyone. I did not even
come close to these people."
[25] The plaintiff was confronted with the warning statement of his co -accused,
Madodomzi Butshingi. He conceded that, considering Butshingi's statement, he
was implicated in the incident. He was also confronted with the statements of Silva
and Kheswa. Silva's statement recorded that he found Mkheleli standing with
Vuyisa and Bheki amongst the community but did not implicate the plaintiff in the
assault. Kheswa's statement recorded: " I saw Vuyisa also jumping the person that
Madodomzi hit and fell but he was out of my view after that ." The plaintiff
interpreted “jumping” as leaping over, while the context of Kheswa’s statement
suggests participation in the assault.
[26] In respect of his bail application, the plaintiff had alleged that the prosecutor
misled the court by failing to place before it that he had a fixed address, had no
pending cases, and did not know any witnesses. Under cross -examination, he was
confronted with the evidence given during his bail application. On page 201 of the
bail transcript, the plaintiff testified: " It was the shack I was staying in ." On page
202, he testified: " It is whilst I am inside prison " when asked when his shack was
demolished.
[27] The plaintiff conceded that his shack had been demolished at the time of his
bail application, and that he did not know the address of his new RDP house. He
conceded that he was out on bail in a rape matter at the time of his arrest on the
murder char ges. He conceded that he knew the witnesses, including Silva,
Butshingi, and Kheswa. He conceded that the statements of Silva and Kheswa
placed him on the scene, though Silva's did not implicate him in the assault.
The defendants' evidence
Warrant Officer Reney Abrahams
[28] Warrant Officer Abrahams was the first responder on the crime scene. She
testified that she and her colleague arrived to find a large group of people and what
appeared to be a ‘hill’ covered with plastic. Upon investigation, they dis covered
two bodies. A person was attempting to set the bodies alight; they stopped him and
effected an arrest. She secured the scene until other role players arrived. She
confirmed that two adult males had been brutally murdered but had no information
as to who committed the murders.
Captain Mlamli Sishuba
[29] Captain Sishuba was the investigating officer. He testified in detail regarding
his investigation, the arrest of the plaintiff, and his role in opposing bail. His
evidence was measured, consistent, and largely undisputed except where it
conflicted with the plaintiff's version.
[30] He testified that on 14 June 2015, he followed a trail of blood from the crime
scene to Butshingi's house, where he found a large crowd surrounding Butshingi in
what he described as a dangerous situation. He removed Butshingi and took him to
the police station. Butshingi subsequently provided a warning statement
implicating the plaintiff.
[31] He consulted with various witnesses and received information from
informants th at the plaintiff had participated in the murders. He feared for the
safety of witnesses and for the plaintiff himself, given the nature of the crime and
community tensions. He did not initially know where to locate the plaintiff and
used an informant to trace him. He acknowledged that certain information from co-
accused 3 implicating the plaintiff had not yet been reduced to a sworn written
statement at the time of bail opposition.
[32] On the night of the arrest, he approached the plaintiff's shack. He knocked and
a female voice responded that Vuyisa was not home. He persisted, and ultimately
the plaintiff opened the door. He introduced himself, explained the reason for the
arrest, and conducted an interview. The plaintiff placed himself at the scene.
[33] Captain Sishuba testified that he discussed the matter with the prosecution and
a decision was taken to oppose bail. The grounds for opposing bail included the
seriousness of the offence, the fact that the plaintiff was on bail for a rape case, that
he h ad no fixed address (his shack having been demolished), that he was
considered a flight risk, and concerns for the safety of witnesses and the plaintiff
himself.
[34] He confirmed that all necessary information was disclosed to the bail court,
including the existence of Silva's exculpatory statement. When the plaintiff's rape
matter was finalised prior to the conclusion of the bail application, this was
disclosed to the court. He disagreed that the decision to arrest, oppose bail, or
prosecute was unlawful or malicious.
Ms Arnell Vermaak
[35] Ms Vermaak was the prosecutor who opposed bail in the Atlantis Magistrates'
Court. She testified that dockets are screened by various prosecutors, and
consultations are held with the investigating officer. A decision by the Regional
Court control prosecutor would have been taken regarding enrolment of the matter.
[36] She testified that the plaintiff was charged with a Schedule 6 offence,
requiring a formal bail application. The State looked at the docket as a whole in
determining which steps to take. The State relied on the doctrine of common
purpose, which requires presence at the scene. Considering the information
provided by informants, witnesses, and the plaintiff himself, including Butshingi's
and Khe swa's statements, the State was satisfied that there were prospects of a
successful prosecution, notwithstanding Silva's non-implicating statement.
[37] She confirmed the grounds for opposing bail: the seriousness of the offence,
the plaintiff's pending rape case, the absence of a fixed address, and the risk of
witness intimidation. She disagreed that the actions of the prosecution were
malicious, stating that the facts on which the State's case rested were supported by
witness statements and, to an extent, by the plaintiff's own admission of being at
the scene.
Advocate Dumisani Koti
[38] Advocate Koti prosecuted the matter in the High Court. He explained that the
matter was identified as a possible High Court matter and had been con sidered by
various senior prosecutors in the office of the Director of Public Prosecutions.
When he was allocated the matter, it was already enrolled for trial.
[39] He consulted with witnesses Silva and Kheswa, who confirmed the contents
of their stateme nts. Considering the principles of common purpose and the
statements in the docket, he was satisfied that there was a prima facie case and
reasonable prospects of a successful prosecution.
[40] He testified that both Kheswa and Silva were called as witnes ses. Kheswa's
evidence changed as noted in [16] above , and the State applied to have him
declared hostile. This was unforeseeable; he had been satisfied that Kheswa's
statement implicated the plaintiff. He testified that in matters involving multiple
accused, there are considerations such as the possibility that a co -accused might
testify and implicate others. If one accused were discharged and such a situation
arose, the State would have no recourse against the discharged accused.
[41] He testified that t he State took all necessary steps and disagreed that the
decision to prosecute was malicious.
EV ALUATION OF THE EVIDENCE
[42] The factual disputes in this matter fall to be resolved by applying the well -
established approach to mutually destructive versio ns. In National Employers
General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) at 440D -G, the Court
held that where there are two mutually destructive stories, the plaintiff can only
succeed if he satisfies the Court on a preponderance of probabilities that his
version is true and accurate, and that the defendant's version is false or mistaken. In
deciding whether the evidence is true, the Court will weigh and test the plaintiff's
allegations against the general probabilities.
[43] In Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie
and Others 2003 (1) SA 11 (SCA) at para [5], the Supreme Court of Appeal set out
the technique for resolving factual disputes: a Court must make findings on (a) the
credibility of witnesses; (b) their reliability; and (c) the probabilities. Credibility
depends on factors such as candour, demeanour , bias, internal and external
contradictions, and the probability or improbability of particular aspects of a
witness's version. Reliability depends on opportunities for observation and the
quality of recall.
[44] Applying these principles, I find that th e plaintiff was a poor witness. His
evidence was laced with inaccuracies, unreliable, and lacking in credibility. He
conceded material contradictions between his pleaded case and his oral testimony.
He initially claimed his home was stormed, but conceded t he police knocked and
he opened the door. He claimed he was not informed of the reason for his arrest but
conceded Captain Sishuba informed him. He claimed he was a passer -by on his
way to work but conceded he had been drinking at Thulani's house.
[45] Most significantly, the plaintiff conceded that he was close to the assault and
jumped over the deceased. This version contradicted his warning statement, in
which he stated he did not even come close to these people. He conceded that
Butshingi's statement implicated him, and that Silva and Kheswa placed him at the
scene, though Silva's statement did not implicate him in the assault. His evidence
lacked the candour expected of a witness testifying truthfully.
[46] By contrast, the defendants' witnesses were credible, consistent, and reliable.
Captain Sishuba gave detailed evidence that withstood cross -examination. He
explained the investigation step by step, from following the trail of blood to
Butshingi's house, to obtaining Butshingi's statement, to consult ing with
informants and witnesses, to ultimately arresting the plaintiff. He acknowledged
difficulties in the investigation, including the need to use informants to locate the
plaintiff, the challenges posed by community tensions, and the fact that certain
information from co-accused 3 was not yet sworn.
[47] Ms Vermaak and Advocate Koti testified candidly about the decision -making
process. They acknowledged that witnesses became hostile and that the
prosecution ultimately failed. However, they explained t hat at the time decisions
were taken, they had witness statements implicating the plaintiff, and they believed
there were reasonable prospects of success, despite the presence of Silva's
exculpatory statement. Their evidence was not seriously challenged on credibility
grounds.
[48] Where the versions of the plaintiff and Captain Sishuba conflict, I accept the
evidence of Captain Sishuba. His version is consistent with the contemporaneous
documentary record, inherently probable, and supported by the probabi lities. The
plaintiff's version, by contrast, is internally inconsistent, contradicted by his own
prior statements, and improbable.
THE CLAIM FOR UNLAWFUL DETENTION
Legal principles
[49] The plaintiff bears the onus of proving that his detention was unlawful.
However, it is trite that once an arrest and detention are admitted or proved, the
defendant bears the onus of justifying the arrest (see, Minister of Law and Order v
Hurley 1986 (3) SA 568 (A) at 589E-F; Minister of Safety and Security v Sekhoto
and Another 2011 (5) SA 367 (SCA) at para [7]).
[50] The arrest in this matter was effected without a warrant in terms of section
40(1)(b) of the Criminal Procedure Act. The jurisdictional facts for a defence under
this section are: (i) the arrestor must be a peace officer; (ii) the arrestor must
entertain a suspicion; (iii) the suspicion must be that the suspect committed an
offence referred to in Schedule 1; and (iv) the suspicion must rest on reasonable
grounds (Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G-H).
[51] The test for reasonable suspicion is objective: would a reasonable person in
the position of the arresting officer, possessed of the same information, have
considered that there were good and sufficient g rounds for suspecting that the
person to be arrested was guilty of the Schedule 1 offence (Mabona and Another v
Minister of Law and Order and Others 1988 (2) SA 654 (SE) at 658E -G)). The
suspicion must be based on solid grounds; it need not amount to certa inty, but it
must be more than flighty or arbitrary.
[52] The plaintiff argued that because murder is a Schedule 6 offence for bail
purposes, it somehow precludes arrest without a warrant. This argument is without
merit. It is well established that offences may appear in multiple schedules. Murder
is both a Schedule 1 offence (for purposes of arrest without warrant) and a
Schedule 6 offence (for purposes of bail) (see, Nompetsheni v Minister of Police
and Others (2094/2021) [2023] ZAECMHC 37 (18 July 2023) at para [32] , and
Nhlapo-Khumalo v Minister of Police and Others (16408/2022) [2024]
ZAGPJHC 838 (22 August 2024) at para [23]).
[53] The plaintiff abandoned his claim for unlawful arrest on the basis of
prescription. However, he persists in his claim for unlawful detention after his first
court appearance. The legal position regarding post -first-appearance detention is
nuanced. After an accused's first court appearance, detention is ordinarily by order
of court. In such circumstances, the plaintiff must establish that the judicial
decision refusing bail was materially induced by wrongful conduct on the part of
the defendants (Zealand v Minister for Justice and Constitutional Development
and Another 2008 (2) SACR 1 (CC)).
[54] As the Constitutional Court held in Zealand supra at para [43] , the mere fact
that a magistrate issued orders remanding an accused in detention is not sufficient
to establish that the detention was lawful. The substantive protection afforded by
section 12(1)(a) of the Constitution requires that every encroachment on p hysical
freedom be justified by acceptable reasons. If the decision to oppose bail was taken
without reasonable and probable cause, or if the bail court was misled, the
subsequent detention may be unlawful.
Application to the facts
[55] I am satisfied that Captain Sishuba entertained a reasonable suspicion that the
plaintiff had committed murder. At the time of arrest, he was in possession of
Butshingi's warning statement directly implicating the plaintiff. He had received
information from informants. He had consulted with witnesses. The information
available to him, viewed objectively, would have led a reasonable person in his
position to suspect that the plaintiff was involved in the murders, notwithstanding
the later emergence of evidential weaknesses.
[56] The plaintiff's argument that the suspicion was not reasonable because
Butshingi's statement was later challenged, or because other statements were not
yet obtained, cannot be sustained. The test is applied at the time of arrest, with the
information then available. Later developments do not retrospectively render an
initially reasonable suspicion unreasonable.
[57] In respect of the decision to oppose bail, the evidence establishes that the
prosecutor had before her: (a) charges of murder, a Schedul e 6 offence; (b)
Butshingi's statement implicating the plaintiff; (c) information from the
investigating officer that other witnesses implicated the plaintiff; (d) the fact that
the plaintiff was out on bail in a rape matter; (e) the fact that the plaintif f's shack
had been demolished and he had no fixed address; and (f) information that the
plaintiff had attempted to evade arrest. The docket also contained Silva's statement,
which was exculpatory and not suppressed.
[58] The plaintiff's contention that the prosecutor misled the bail court by failing to
disclose that he had a fixed address, had no pending cases, and did not know the
witnesses is factually incorrect. The evidence establishes:
(a) The plaintiff did not have a fixed address; his shack had been demolished, and
he did not know the address of his new RDP house.
[b) The plaintiff did have a pending case; he was out on bail in a rape matter.
[c) The plaintiff did know the witnesses; he conceded knowing Silva, Butshingi,
and Kheswa.
[59] The bail court refused bail after a full hearing. The court applied the Schedule
6 onus, considered the strength of the State's case, including contradictory
statements, and was not satisfied that exceptional circumstances had been
established. The plaintiff has failed to establish that this decision was materially
induced by any misrepresentation or wrongful conduct on the part of the
defendants, particularly as the exculpatory material was available.
[60] In respect of the continuation of detention after bail refusal, the plaintiff has
not established that the defendants acted without reasonable and probable cause in
continuing the prosecution. The prosecution had witness statements implicating the
plaintiff, including Butshingi's and Kheswa's. The fact that witnesses later became
hostile or recanted does not render the initial decision unreasonable. The
requirement of reasonable and probable cause is judged at th e time the decision is
taken, with the information then available (see, Beckenstrater v Rottcher and
Theunissen 1955 (1) SA 129 (A) at 136A-B).
[61] The plaintiff's claim for unlawful detention must therefore fail. He has not
established that the decision to oppose bail was taken without reasonable and
probable cause, that the bail court was misled, or that his continued detention was
attributable to any wrongful conduct on the part of the defendants.
THE CLAIM FOR MALICIOUS PROSECUTION
Legal principles
[62] The plaintiff bears the onus of establishing the elements of malicious
prosecution. In Minister of Safety and Security v Lincoln 2020 (2) SACR 262
(SCA) at para [20], the Supreme Court of Appeal set out the elements:
(a) The defendant set the law in motion (instituted or instigated the proceedings);
(b) acted without reasonable and probable cause;
(c) acted with malice (or animo injuriandi); and
(d) that the prosecution failed.
[63] It is common cause that the defendants set the law in motion and that the
prosecution failed (the plaintiff was acquitted). The dispute centres on whether the
defendants acted without reasonable and probable cause and whether they acted
with malice.
[64] In Beckenstrater v Rottcher and Theunis sen (supra) at 136A -B, the Court
explained:
"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, o f reasonable and
probable cause."
[65] The requirement of reasonable and probable cause is objective: did the
prosecutor have such information as would lead a reasonable person to conclude
that the plaintiff had probably been guilty of the offence charged? The requirement
of malice is subjective: did the prosecutor act with animus injuriandi, that is, with
the intention to injure (Relyant Trading (Pty) Ltd v Shongwe [2007] 1 All SA 375
(SCA) at para [14].
[66] The court in Kiviet v M and Others (1361/2012) [2017] ZAGPJHC 368 (8
September 2017) at para [ 15] confirmed that nothing short of animus injuriandi
will suffice. Mere negligence or poor judgment does not constitute malice.
Application to the facts
[67] The plaintiff has fa iled to establish that the defendants acted without
reasonable and probable cause. At the time the decision to prosecute was taken, the
prosecutor had before her:
(a) Butshingi's warning statement directly implicating the plaintiff in the assault.
(b) Information from the investigating officer that other witnesses implicated the
plaintiff.
(c) Statements subsequently obtained from Silva and Kheswa, which placed the
plaintiff at the scene, though Silva's did not implicate him in the assault.
(d) The plaintiff's own admission, in his warning statement, that he was present at
the scene.
[68] The plaintiff's reliance on the inadmissibility of Butshingi's statement against
a co-accused in both the bail hearing and the criminal trial is misplaced. The t est
for reasonable and probable cause is not whether the evidence would ultimately be
admissible at trial, but whether a reasonable prosecutor, possessed of the
information, would conclude that the plaintiff had probably been guilty.
(see, Beckenstrater (supra). The prosecutor is entitled to consider all information
available, including statements that may later be challenged, in forming a
preliminary view, balanced against exculpatory material like Silva's statement.
[69] Moreover, the rule against the ad missibility of co -accused statements, as
articulated in S v Litako 2015 (3) SA 287 (SCA) and Mhlongo v S; Nkosi v S 2015
(2) SACR 323 (CC), is not absolute at common law. There are exceptions,
including statements made in furtherance of a common purpose (Mhlongo v S;
Nkosi v S supra at [39]). The State's case against the plaintiff was based on the
doctrine of common purpose. In such circumstances, a prosecutor could reasonably
have considered Butshingi's statement as part of the evidentiary matrix, alongsi de
contradictions.
[70] The plaintiff has also failed to establish malice. There is no evidence that the
prosecutors acted with animus injuriandi. Neither Ms Vermaak nor Advocate Koti
had any personal interest in the matter. They acted on the information before them,
in the course of their professional duties. The fact that they persisted in the
prosecution even as difficulties emerged does not establish malice. Indeed, for
reasons of public policy, a prosecutor should not be deterred from setting the law in
motion where reasonable and probable cause exists (see, Die Minister van Polisie
v Van der Vyver (861/2011) [2013] ZASCA 39 (28 Maart 2013)).
[71] The plaintiff's submission that the prosecutor misled the bail court by stating
that there were three wi tnesses placing him on the scene cannot be sustained. The
evidence establishes that there were indeed witnesses placing the plaintiff at the
scene: Butshingi's statement, Silva's statement, and Kheswa's statement. The fact
that Silva was later declared hos tile and Kheswa's evidence changed does not
render the original statement s false, nor does it establish that reliance on unsworn
information from co -accused 3 amounted to misrepresentation, as the bail court
was aware of contradictions.
[72] The claim for malicious prosecution must therefore fail. The plaintiff has not
discharged the onus of establishing that the defendants acted without reasonable
and probable cause or with malice.
CREDIBILITY AND PROBABILITIES
[73] In concluding that the plaintiff's claims must fail, I have had regard to the
overall credibility of the witnesses and the probabilities. The plaintiff's evidence
was unreliable and materially contradicted by the documentary record and his own
prior statements. The defendants' witnesses were credible and consistent.
[74] The probabilities favour the defendants' version. It is inherently probable that
Captain Sishuba, an experienced investigating officer, acted on the information
available to him, which included a direct statemen t from a co -accused implicating
the plaintiff. It is probable that the prosecutors, acting in the course of their
professional duties, assessed the docket and formed the view that there were
reasonable prospects of success, despite evidential contradiction s. It is improbable
that they acted maliciously, given the absence of any personal interest in the matter
and any evidence of animus injuriandi.
[75] The plaintiff's subsequent acquittal does not, without more, establish that the
prosecution was maliciou s. The criminal justice system sometimes fails to secure
convictions despite reasonable and probable cause at inception. The test for
malicious prosecution is not whether the prosecution ultimately succeeded, but
whether it was instituted without reasonabl e and probable cause and with malice.
For the reasons already stated, the plaintiff has failed to discharge the onus.
CONCLUSION
[76] The plaintiff abandoned his claim for unlawful arrest. His claim for unlawful
detention after first appearance fails b ecause he has not established that the
decision to oppose bail was taken without reasonable and probable cause, that the
bail court was misled, or that his continued detention was attributable to any
wrongful conduct on the part of the defendants.
[77] His claim for malicious prosecution fails because he has not established that
the defendants acted without reasonable and probable cause or that they acted with
malice. The prosecutors had before them witness statements implicating the
plaintiff, and they ac ted on that information in the course of their professional
duties, notwithstanding the presence of contradictory material.
[78] In the result, the plaintiff's claims must be dismissed.
COSTS
[79] The defendants have been successful. The general rule is that costs follow the
result; I see no reason to depart from that rule. The matter was complex and
involved multiple witnesses and extensive documentary evidence which justifies
an award of costs on scale C.
ORDER
The following order is made:
1. The plaintiff's claims are dismissed.
2. The plaintiff is ordered to pay the defendants’ costs on scale C.
____________________
M FRANCIS
Judge of the High Court
Appearances:
For Plaintiff: Adv S X Mapoma SC
Instructed by: Lingani and Partners Inc.
For Defendant: Adv Mark Filton
Instructed by: State Attorney