IN THE HIGH COURT OF SOUTH AFRICA
(FREE STATE DIVISION, BLOEMFONTEIN)
In the matter between:
ZABATELE ABEL NYENZANE
THABANG ALEX DINALE
and
MINISTER OF POLICE
NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
Case No: 4573/2022
Not reportable
FIRST PLAINTIFF
SECOND PLAINTIFF
FIRST DEFENDANT
SECOND DEFENDANT
Neutral Citation: Nyenzane and Another v Minister of Police and Another
(4573/2022) (2026] ZAFSHC 74 (26 February 2026)
Coram: NEMA VHIDI AJ
Heard: 30 September 2025
Delivered: This judgment was handed down electronically by circulation to the
parties representatives by email and released to SAFLI. The date and time for hand
down is deemed to be 09h30 on 26 February 2026.
Summary: Section 40(1)(a) and (b) of the Criminal Procedure Act 51 of 1977
permits a peace officer to effect arrest without a warrant any person who attempts or
commits an offence in his presence. The offence need not later be proven; it is
sufficient that the officer honestly and reasonably perceived conduct constituting a
crime. To succeed in malicious prosecution, a plaintiff must prove: (a) the defendant
instituted proceedings; (b) without reasonable and probable cause; ( c) with malice;
and ( d) the prosecution failed.
ORDER
1 The plaintiffs' claims for unlawful arrest and detention are dismissed .
2 The plaintiffs' claims for malicious prosecution are dismissed.
3 The first plaintiffs claim for assault is dismissed.
4 The plaintiffs are oi•dered to pay the defendants' costs, jointly and severally,
fa· the one paying, the other to. be absolved, such costs to include the costs of counsel
at Scale B
Nemavhidi AJ
Introduction
J1JDGMENT
[I] This is an action for damages arising from the arrest and prosecution of the
plaintiffs on 6 September 2021. The first plaintiff claims for assault , unlawful arrest,
unlawful detention, malicious prosecution and loss of income. The second plaintiff
cJaims for unlawful arrest, unlawful detention and malicious prosecution . The claim
for assa:tilt by the second plaintiff was previously dismissed. The defendants admit
the anest and detention but contend that these were lawful and justified .
Issues for Determination
[2] The issues to be decided are :
(a) whether the arrest and detention of the plaintiffs were lawfol;
(b) whether the prosecution of the plaintiffs was malicious; and
(c) whether the first plaintiff has proven his claim for assault.
Evidence and Credibility Findings
[3] The critical factual dispute is whether the plaintiffs were seen emerging from
a room in which unlicensed firearms and ammunition were found, or whether they
were anested while waiting in a pal'king area away from the room. Having
considered the evidence, I am satisfied that the version of the police witnesses -
Colonel Majikela (Majikela), Sergeant Mokhethi (Mokhethi) and Constable
Morwagae (Morwagae)- is credible and reliable. Their testimonies were consistent
in material respects, corroborated by each other, and aligned with the objective
probabilities.
[ 4] The plaintiffs' version - that they travelled lo Theunissen to attend to travel
claims and to enquire about dogs, and that they were arrested while innocently
waiting in a parking lot - is improbable. It is unlikely that they would first go to a
hostel without contact details for lhe person they sought , rather than proceeding
directly to the magistrate's courl. Their claim that they were left handcuffed and
unattended for over an hour while police attended to the scene is also unconvincing.
The evidence of Aubrey Yola (Yola), called by the plaintiffs, did not assist their
case. His explanation for being in the room was improbable and did not credibly
distance the plaintiffs from the scene.
[5] l therefore accept the defendants' evidence that the plaintiffs were seen
leaving the room where the firearms were subsequently discovered, in the company
of other known offenders from Bloemfontein.
Lawfulness of the Arrest
[6] The al1'est was effected without a warrant, purportedly under ss 40(1)(a) and
(b) of the Criminal Procedure Act 51 of i 977. Section 40( I )(a) permits a peace
officer to an-est without a warrant any person who commits or attempts to commit
an offence in his presence. The offence need not later be proven_; it is sufficient that
the officer honestly and reasonably perceived conduct constituting a crime. 1
[7] In support of th.is approach, the Supreme Court of Appeal in B;yela v Minister
of Police 2 srni1111ed the approach as follows:
'(33) The question whether a peace officer reas.onably suspects a person of having committed
an offence within the ambit of seclion 40( I )(b) is objectively justiciable. It must, al the outset, be
emphasised that the suspicion need nol be based on information that would subsequently be
admissible in a cou1t of law.
[34) The standard of a reasonable suspicion is very low . The reasonable suspicion must be more
than a hunch; it should not be an unparliculurised suspicion. It must be based on specific and
articulable facts or information. Whclher the suspicion was reasonable, under the prevailing
circumstances, is determined objectively. •J
[8] The evidence shows that Mokhethi saw the plaintiffs and others exiting a room
where unlicensed firearms and ammunition were immediately found. Yola, found
inside, directed suspicion to those who had just left. In these circumstances,
Mokhethi could reasonably have perceived that the plaintiffs were involved with
something pertaining to the unlawful possession of firearms. The arrest under s
40( I )(a) was therefore lawful.
[9] Alternatively, even if s 40( 1 )(b) is considered, the requirements are met:
Mol<l1ethi was a peace officer; he entertained a suspicion that a Schedule I offence
1 Minister of Safety and Security and Another v Mhlana [20 I 0) ZA WCHC 23; 2011 (I) SACR 63 (WCC) para 12. 2 ll1)1e/a v Mi11iste1· of Police [2022) ZASCA 36; 2023 (1) SACR 235 (SCA).
) Ibid paras 33-34.
(possession of unlicensed firearms) had been committed; and his suspicion was
based on reasonable grounds. The reasonable suspicion threshold is low and requires
only specific and articulable facts.'1
[ 1 OJ The facts known to Mok.hethi at the time - the stolen vehicle nearby, the
plaintiffs emerging from the room, the locked door, the discovery of firearms, Yola's
reference to those who had just left, and the lack of satisfactory explanation from the
plaintiffs - objectively provided reasonable grounds for suspicion. Courts have
previously held:
' If the jurisdictional requirements are satisfied, the peace officer may invoke the power conferred
by the subsection, ie, he may arrest the suspect. In other words, he then has a_ discretion as to
whether or not to exercise tha_t power (cf f-Jo/gafe-Moha111111ed v Duke [ 1984] I All ER I 054 (HL)
al 1057). No doubt the discretion must be properly exercised. Bul the grounds on which the
exercise of such a discretion can be questioned arc narrowly circumscribed . Whether every
improper ,~pplicaLion of a discretion conferred by the subsection will render an arrest unlawful ,
need not be considered because it does not arise in Lhis case.'5
Once the jmisdictional facts for arre st are established, the anesting officer has a
discretion whether to arrest. The plaintiffs did not plead or prove that Mokhethi
exercised his discretion iiTationally. The court will not lightly interfere with such a
discretion .6 Accordingly , the arrest and subsequent detention were lawful.
Malicious Prosecution
[ 11] To succeed in malicious prosecution, a plaintiff must prove:
(a) the defendant instituted proceedings ;
(b) without reasonable and probable cause;
(c) with malice; and
4 Ibid.
5 Minister of Safery a11d Sc1c11rity v Sekhoro and A 1101/Jer [20 I 0) ZASCA 141 ; 20 I I (I) SACR 315 (SCA) para 29.
r, Ibid.
(d) the prosecution failed.7
[12] The decision to prosecu'te was taken by Mr Khumalo , a prosecutor employed
by the second defendant, on 8 September 2021.. There is no evidence that the first
defendant instigated the prosecution. At the time of the decision, Mr Khumalo had
before him the statements of Majikela, Mokhethi, Morwagae and Mandla Zondi.
These statements implicated the plaintiffs in the possession of firearms. The
plaintiffs had provided no exculpatory warning statements.
[13] On that information, a reasonable prosecutor could have concluded that there
were grounds to prosecute. The test is not whether a prima facie case existed, but
whether a reasonable person in the prosecutor's position would have suspected
guilt.K
'Prnof of animus iniuriandi, in Lhc sense of' intention Lo injure, is an essential element of the actio
iniuriarum on which a malicious prosecuLion claim is bnscd. The DDPP had to intend to prosecute
the respondent with Lhe consciousness of wrongfulness. Negligence or even gross negligence is
insufficient ~ there must be do_lus, at minimum, in Lhe form of do/us eventualis.
To show cmimus iniuriandi , the respondent had to demonstrate lhnl the DDPP foresaw the
possibility that initialing the prosecution was wrongful in that rensonnble grounds for ii were
lacking but thal she acted recklessly as to thal consequence. The high court's analysis took an
unduly narrow view of the evidence.
An improper molive alone is insuffic ient lo establish animus iniuriandi l'or n mnlicious prosecution
claim. As noted above, the prosecution musl also have hcen initiated without reasonable and
probable cause. Given my tinding that Lhere was an objectively reasonable basis lo prosecute the
respondent, any improper motive does not render the prosecution wrongfu l. Moreover, the desire
to set an example that prosecutors will he held accountable for unju stified decisions is not in itself
7 Mii1is1er o/.J11stice and Co11sti1111io11a/ Deve/op1111!11I and Others " Moleko (2008) ZASCA 43; [2008] 3 All SA 47
(SCA) para 8.
8 Nu1io11al Dlrecto1· o.f 1'11b/ic Prosec111io11s v S/ioyi Roberr Mdh/c>v11 [2024) ZASCA 85; 2024 (2) SACR 331 (SCA).
an improper motive for a prosecution thut is otherwise justified. Ensuring the integrity of the
prosecutorial process is a valid and imporlanl consideration. While the phrasing of the NDPP's
memo was perhaps ill-advised, il does not establish the required intention lo injure the respondent
through baseless proceed ings.'9
[14) The plaintiffs led no evidence to show that Mr Khumalo acted without
reasonable cause or with malice (animus iniuricmdi). His testimoi1y indicated an
honest belief in the plaintiffs' guilt based on the docket. Malice or consciousness of
wrongfulness has. not been established. The claim for malicious prosecution
therefore fails.
Assault
[15] The first plaintiffs claim for assault is not credible. His pleaded case was that
he was assaulted with fists and dragged to a police van. His testimony in court was
that he was hit with open hands. This material contradiction undermines his
reliability. Moreover, the second plaintiff, who was with him throughout, testified
that be did not witness any assault. No medical evidence was presented to
corroborate the alleged injuries. The claim for assault is dismissed.
Conclusion
[16] In the result:
(a) The plaintiffs' claims for unlawful anest and detention are dismissed;
(b) The plaintiffs' claims for malicious prosecution are dismissed; and
(c) The first plaintiff's claim for assault is dismissed.
Order
[17] In the result , the following order is made:
9 Ibid prims 31-33.
l The plaintiffs' claims for unlawful arrest and detention are dismissed.
2 The plaintiffs' claims for malicious prosecution are dismissed.
3 The first plaintiff's claim for assault is dismissed.
4 The plaintiffs are ordered to pay the defendants' costs, jointly and severally,
the one paying, the other to be absolved, such costs to include the costs of counsel
at Scale B.
\
NEMAVHIDI
ACTING JUDGE OF THE HIGH COURT
Appearances
For the plaintiffs:
Instructed by:
For the defendants
Instructed by:
R. Nondwangu
Mlonzana Attorneys Inc
Bloemfontein
M.S. MAZIBUKO
State Attorney
Bloemfontein