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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO: 1342/2021
In the matter between:
SIKHUSELE MLISA Plaintiff
and
MINISTER OF POLICE 1st Defendant
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 2nd Defendant
__________________________________________________________________
JUDGMENT
__________________________________________________________________
RUSI J
[1] The plaintiff was arrested without a warrant on 04 June 2019 and
subsequently detained at the Mt Frere Police Station by a member of the defendant
on charges of ‘house robbery’. He alleges that his arrest was without any
justification in law. Pursuant to his arrest, he was caused to appear in the Mt Frere
Magistrate’s Court on 06 June 2019, where he was charged with housebreaking
with intent to commit a crime as count one, and robbery as the second count. He
remained in custody until 26 June 2019 when he was granted bail of R500.00. The
proceedings against him continued until 05 December 2019 when the public
prosecutor withdrew the charges against him. He contends that his prosecution was
malicious.
[2] On these bases, the plaintiff now sues the first defendant for R200 000.00 as
and for damages resulting f rom his unlawful arrest, R300 000.00 for his unlawful
detention for 22 days and R100 000.00 for contumelia. The plaintiff claims
R900 000.00 against the second defendant resulting from his malicious
prosecution. His claims are resisted by both defendants.
The pleadings
[3] In his amended particulars of claim, the plaintiff alleged, in respect of the
claim for unlawful arrest and detention, that he was arrested and detained for 22
days without a warrant. His arrest and detention were wrongful, unlawful and
unconstitutional, and an unjustifiable interference with his personal liberty, and
they were insulting and injurious, impaired his dignity and self -esteem, and caused
him grief, embarrassment and humiliation. The plaintiff further contends that the
police failed to conduct a thorough investigation of the case before arresting him.
He was detained in unsanitary conditions in a small congested and cold cell. The
cell had an unpleasant smell; he was caused to sleep on the cold concrete floor with
dirty blankets.
[4] As against the second defendant, the plaintiff alleged that the public
prosecutor who was seized with his case in the Mt Frere Magistrates’ Court set the
law in motion by preferring false charges against him. The decision to prosecute
him was made wi thout reasonable and probable cause, and it was malicious. The
prosecutors were aware of the contents of the police docket and the fact that there
was no evidence linking him to the commission of the offences he was charged
with but nonetheless prosecuted him. He was caused to appear in court on
numerous occasions and the prosecution failed on 05 December 2016 when the
charges against him were withdrawn.
[5] In resisting the plaintiff’s claim for unlawful arrest and detention, the first
defendant, who admit s the plaintiff’s arrest and detention without a warrant,
alleged the following facts in its amended plea dated 16 October 2025:
(a) The plaintiff was arrested and charged with house robbery which took place
on 01 June 2019.
(b) He was clearly identified by the complainant as the suspect. He was arrested
and detained ‘within the premises of the law specifically section 40 of the
Criminal Procedure Act 51 of 1977 (the CPA).’
(c) He was detained because of his unlawful actions. He was charged with
serious offences, and the members of the defendant ‘had to act within the
premises of the law’.
[6] In denying that the plaintiff was maliciously prosecuted, the second
defendant pleaded that the charges against the plaintiff were informe d by his
‘unmistaken’ identification by the complainant as the person who committed the
offences. The prosecutors were ‘fully convinced’ that the plaintiff had a case to
answer. The second defendant denied that the prosecution failed and alleged that
charges were withdrawn on the basis of the complaint’s withdrawal statement.
The issues for determination
[7] Whether there was any justification in law for the arrest and detention of the
plaintiff on 04 June 2019, and whether the first defendant is liable for the plaintiff’s
damages resulting from his continued detention beyond his first appearance in
court on 06 June 2019, are the issue for my determination in respect of the
plaintiff’s claim based on his alleged unlawful arrest and detention.
[8] In regard to the claim for malicious prosecution, this Court must determine
whether there was reasonable and probable cause for the prosecution of the
plaintiff from 06 June 2019 to 05 December 2019, and whether the prosecution
terminated in his favour. The second defendant admitted that it set the law in
motion against the plaintiff. Furthermore, this Court must determine whether in
prosecuting the plaintiff the prosecutor acted with malice (animus injuriandi).
The trial
[9] The trial of the matter proceeded on b oth the merits and quantum of the
plaintiff’s claim. Apart from their respective pleadings, the parties relied on the
documents discovered between them, which included the contents of the police
docket and the record of proceedings against the plaintiff in the Mt Frere
Magistrate’s Court. The first defendant adduced the evidence of the arresting
officer, Captain Maliwa (Capt. Maliwa), and the second defendant called Mr
Manase, the public prosecutor who was seized with the plaintiff’s case in the Mt
Frere Magistrates’ Court from 06 June 2019 until the charges were withdrawn on
05 December 2019. The plaintiff was the only witness in support of his case.
The incidence of the onus
[10] The onus rested on the first defendant to justify the plaintiff’s arrest and
detention. The plaintiff had the onus to prove his claim for malicious prosecution.
Resulting from this, the plaintiff accepted the duty to begin leading evidence.
The plaintiff’ s evidence
[11] The plaintiff testified that he knows Mr Msawenkosi Ngqandan a, the
complainant in the criminal case against him (the complainant) as his neighbour. In
the morning of 01 June 2019, he received a call from his neighbour named
Lubabalo who told him that there was a breaking -in and theft at the complainant’s
home. As i t was practice in his locality, local men converged at the scene of the
alleged crime to investigate the incident and follow any available leads. On his
arrival at the home of the complainant, he found other community members
already gathered there. A collective decision was taken to follow the available lead
at the time, to the direction of Mabhobho locality in search of the perpetrators and
the stolen items. When that search yielded no result, the community members
dispersed.
[12] On 04 June 2019, around 22h00, Capt. Maliwa, then holding the rank of a
Seargent, arrived at his home in the company of the complainant. They found him
in the doorway of his room and without saying anything, they barged into his room
and searched it. After the search, Capt. Mali wa took him to the Mt Frere Police
Station, and he did not tell him why he was arresting him. There was no justifiable
ground for Capt. Maliwa to arrest and detain him.
[13] He made his first appearance in court on 06 June 2019, where he was
remanded in cu stody until 12 June 2019, and nothing was said about bail. On 12
June 2019, his case was postponed to 26 June 2019 on which day his bail
application was heard, and he was admitted to bail of R500.00. He continued
appearing in court until 05 December 2019 w hen charges against him were
withdrawn.
[14] According to the plaintiff, the prosecutor’s decision to enrol the case against
him on 06 June 2019 was not founded on any belief that he was guilty of any
offence. The evidence that was contained in the docket did not support the
allegations that were levelled against him, yet his prosecution was persisted with
and this made the prosecution malicious. The plaintiff further contended that the
statements of the complainant and his daughter, Ms Y[...] S[...] (Ms S[...]) on
which the prosecutor relied in his decision to prosecute him, did not provide
convincing proof that he was the person that committed the alleged offences.
The first defendant’ s evidence
[15] Capt. Maliwa’s version of the events leading up to the plaintiff’s arrest was
that he was assigned to investigate the charge of house robbery that the
complainant had laid on 02 June 2019 around 10h00. He interviewed the
complainant who made a statement on 02 June 2019 in connection with the matter.
[16] On 04 June 2019 in the evening, he was telephoned by the complainant who
informed him that the suspects of the house robbery had since been named by Ms
S[...], as “Siphelele Caza” and “Sikhusele Mlisa”, and that it was alleged that there
was a likelihood that the two suspects would escape. There and then, he proceeded
to the complainant’s home where he gathered more information about the matter.
He did not interview Ms S[...] as she was asleep. He was loath to awaken her since
she was a school going child.
[17] The complainant led him to the plaintiff’s home where he pointed out the
plaintiff as the suspect. He immediately placed the plaintiff under arrest after which
he asked him for permission to search his room, which permission was granted. He
did not recover any of the stolen items during the search. Despite this, he took the
plaintiff to the Mt Frere Police Station where he was charged and detained. In his
words, “he arrested the plaintiff because he aimed to swiftly secure the arrest and
utilize the 48 hours that followed in investigating the matter so as to cover up every
loophole and obtain every statement they did not obtain.”
[18] As his reasons for arresting and detaining the plaintiff, Capt. Maliwa
testified that he arrested him because he was point ed out by the complainant as the
suspect of the house robbery based on the information that the complainant
received from his daughter. He detained the plaintiff due to the seriousness of the
offence. Asked if there was any official record of his telephone interaction with the
complainant in the evening of 04 June 2019 in which he disclosed the names of the
suspects, Capt. Maliwa said that he would have recorded the telephone call in his
pocketbook and in the investigation diary. Neither Capt. Maliwa’s pock etbook nor
the investigation diary are among the defendant’s discovered document.
[19] What transpired upon arrival at the plaintiff’s home when the complainant
pointed the plaintiff as a suspect is detailed in Capt. Maliwa’s statement dated 05
June 2019. Capt. Maliwa obtained the statement of Ms S[...] after on 05 June 2019
at 15h00, a day after the plaintiff’s arrest. He took a further statement from the
complainant at 18h00 on that same day.
[20] It was Capt. Maliwa’s evidence further, that, when the pla intiff appeared in
court of 06 June 2019, he is the one that had delivered the docket to the prosecutor.
At that time, the docket had the statement that the complainant made on 02 June
2019; the statement of Ms S[...] dated 05 June 2019; the complainant’s further
statement dated 05 June 2019; his own statement as the arresting officer, dated 05
June 2019; and the notice of constitutional rights given to the plaintiff upon
detention on 04 June 2019.
[21] Asked why the plaintiff’s release on bail was not cons idered on his first
appearance in court, Capt. Maliwa testified that he is the one who requested the
prosecutor to apply for the postponement of the case for a period of seven days. He
sought the postponement despite the fact that at that stage he had not found any
items of the complainant’s stolen property in the plaintiff’s possession. According
to him, the postponement was so that he may obtain the plaintiff’s criminal profile
from the local criminal record centre. As a result, on the plaintiff’s first appearance
in court, proceedings were postponed to 12 June 2019.
[22] Capt. Maliwa further testified that although the plaintiff’s profile was made
available to him within the seven -day period of postponement, he decided not to
submit it to the prosecutor but to wait for the prosecutor’s indication of the date
when the plaintiff’s bail application would be made. He did not communicate his
views to the prosecutor regarding the plaintiff’s eligibility to be released on bail as
he did not consider himself obli ged to do so. When the plaintiff’s bail application
was heard on 26 June 2019, he was not present in court as he had been assigned
other duties.
[23] Further according to Capt. Maliwa, on 12 June 2019, the complainant filed a
statement in which he withdrew the charges against the plaintiff. On the face of this
statement, it was made before Capt. Maliwa at 09h00 on 12 June 2019. This
statement was not brought to the attention of the prosecutor on that same day when
the plaintiff appeared in court. Capt. Mal iwa’s explanation was that he learned of
the formal withdrawal of the charges when he had left the Mt Frere police station
following his promotion.
[24] Regarding whether he was ever instructed by the prosecutor who was seized
with the plaintiff’s docket to conduct further investigations of the case, Capt.
Maliwa testified that the only instruction he received from the prosecutor was to
file the plaintiff’s profile.
The second defendant’ s evidence
[25] Mr Manase confirmed that he received the docket entailing the case against
the plaintiff on 06 June 2019. It contained, among others, the statement of the
complainant dated 02 June 2019; the statement of the of Ms S[...] dated 05 June
2019, a further statement deposed to by the complainant on 05 June 2019, and
Capt. Maliwa’s arresting statement. These are the same statements he relied on in
deciding to prosecute the plaintiff. Below I set out in summary the m aterial
contents of these statements.
(a) The statement of the complainant dated 02 June 2019
[26] In this statement, the complainant states that as he was sleeping in another
room, he heard his children screaming calling for him. He went at once to
investigate. His daughter, Y[...] S[...], told him that certain people entered the
house and when she ra ised her head from the couch where she had been sleeping,
one suspect pushed her head against the couch and ordered her not to. In that
moment, another suspect took the television set and two cell phones. She managed
to see two of the suspects and could not establish if there were others as she was in
a state of shock.
(b) The statement of Y[...] S[...] dated 05 June 2019
[27] In her statement, Ms S[...] states that she was asleep at her home when she
saw two unknown black males. One of them took the tele vision off its stand. The
lights were on, and she pretended to be asleep. The two males also took two cell
phones. She could see that it was ‘Siphe’ and ‘Sikhusele’. She saw their faces and
their attire. Siphe was wearing a ‘lemon’ overall and Sikhusele wa s wearing a big
navy jacket. She knew both males from her locality.
(c) The statement of the complaint dated 05 June 2019.
[28] In this additional statement, the complainant states that he was asleep when
the breaking in took place on 01 June 2019 around midnight. He did not see the
suspects, but Ms S[...] did. She was crying and very scared on the night of the
breaking-in. She told him the names the suspects the next day.
(d) The arrest statement of Capt. Maliwa
[29] In his statement detailing the circum stances of the plaintiff’s arrest, Capt.
Maliwa states that on Tuesday 04 June 2019 at 22h00 he was attending to the
investigation of the complaint made by the complainant, the complainant pointed
out two males whom he said were the culprits of the breakin g in at his house. The
complainant pointed out persons known as Siphe Caza and Sikhusele Mlisa, and he
arrested both males and searched their houses but found nothing that belonged to
the complainant. The two males denied allegations against them.
[30] Explaining the basis of his decision to prosecute the plaintiff, Mr Manase
went on to state that he considered all these statements conjunctively. It is only
where there is acceptable evidence linking the plaintiff to the alleged crimes that he
would enrol th e case. Upon reading the above -mentioned statements, he formed a
view that there was admissible evidence and a prima facie case against the
plaintiff.
[31] In regard to the identification of the suspects by Ms S[...], Mr Manase
considered the fact that th is witness had prior knowledge of the suspects. He was
satisfied with the identity of the suspects. Hence, he enrolled the case against the
plaintiff. When pressed in cross -examination regarding the cogency of Ms S[...]’s
evidence of the identification the suspects of the alleged crimes, he conceded that
Ms S[...]’s statement did not clearly identify the plaintiff as the suspect. In similar
vein, Mr Manase testified that Ms S[...]’s statement was sufficiently clear for him
to enrol the case against the plaintiff.
[32] I asked Mr Manase questions to elucidate the facts regarding his role in the
further conduct of the matter after he received the docket from Capt. Maliwa and
whether he ever gave instructions to the investigator to conduct further
investigations of the matter. He testified that he was unable to say whether he ever
gave those instructions.
The parties’ submissions
[33] Mr Sintwa submitted, chiefly, that the first defendant did not pertinently
plead any of the recognized grounds for justifying ar rest and detention without a
warrant under section 40. He took the view that even if it were to be said that in
arresting the plaintiff Capt. Maliwa relied on the presence of a reasonable
suspicion that the plaintiff had committed a Schedule 1 offence, tha t ground of
justification would not be availing. On this score Mr Sintwa emphasized Capt.
Maliwa failed to verify the information given to him by the complainant in
circumstances where the complainant never witnessed the commission of the
alleged offences, but his daughter did. Further according to Mr Sintwa, Capt.
Maliwa failed to provide justification for the plaintiff’s detention, and for this
reason, he wrongfully detained him. He further submitted that the first defendant
was liable for the plaintiff’s further detention after his first appearance in that but
for his unlawful arrest, the plaintiff would not have been detained until 26 June
2019.
[34] It was Mr Sintwa’s submission further that Capt. Maliwa’s opposition of bail
on the plaintiff’s first ap pearance in court and his failure to timeously submit the
plaintiff’s profile for consideration by the prosecutor, as well as his failure to
submit the complainant’s withdrawal statement on 12 June 2019, was wrongful
conduct which factually and legally caused the plaintiff’s continued detention after
his first appearance in court.
[35] As regards the claim for malicious prosecution, Mr Sintwa submitted that
when regard is had to the statements that were at the disposal of the prosecutor
when the plaintiff’ s case was enrolled on 06 June 2019, taken cumulatively, it
cannot be said that there was reasonable and probable cause to prosecute the
plaintiff. Therefore, his prosecution was malicious.
[36] Mr Gumede was constrained to concede that the first defendan t failed to
justify the plaintiff’s arrest and detention both in its plea and in evidence. He
further conceded that the defendant has failed to put forward a cogent defence
regarding the plaintiff’s continued detention after his first appearance in court.
Regarding the claim from malicious prosecution, Mr Gumede acknowledged that
the second defendant’s evidence in rebuttal of the plaintiff’s claim was not
convincing. Even though the second defendant had initially denied that the
prosecution failed, Mr Gumede conceded that it did when the charges against the
plaintiff were withdrawn.
The legal principles
[37] Owing to the drastic nature of an arrest as a way of bringing the suspect of
crime to justice, the law permits a person’s arrest in circumscribed insta nces
whether the arrest is with or without a warrant. A person may only be arrested and
detained without a warrant authorizing his arrest on any of the grounds listed in
section 40(1) of the CPA.
[38] Malicious prosecution consists in the wrongful and intentional assault on the
dignity of a person comprehending also his or her good name and privacy.1 In order
to succeed in his claim based on malicious prosecution, the plaintiff must allege
and prove that (a) the defendants set the law in motion (instig ated or instituted the
proceedings); (b) the defendants acted without reasonable and probable cause; (c)
the defendants acted with ‘malice’ (or animo injuriandi ); and (d) that the
prosecution has failed.2 In the discussion that follows, I deal with the is sues before
me against the background of these legal principles.
Discussion
[39] It is significant to note that Capt. Maliwa arrested the plaintiff based on the
complainant’s say-so and his pointing out of the plaintiff as the suspect. The search
in the pl aintiff’s room followed the arrest. During the search, he did not find any
item of property that was stolen from the complainant. As mentioned, an arrest
without a warrant may be made in terms of any of the seventeen grounds listed in
section 40(1) of the CPA. The first defendant’s defence to the plaintiff’s claim for
arrest and detention falls foul of Uniform Rule 18(4) for failure to plead the
relevant facts envisaged in the relevant portion of section 40 as would have formed
the basis of the plaintiff’s arrest and detention without a warrant on 04 June 2019.
[40] However, even on a benevolent reading of the first defendant’s inept plea as
being that the plaintiff was suspected of being the person who committed the
crimes he was arrested for, the law requires that the suspicion that a person
1 Relyant Trading (Pty) Ltd. v Shongwe and Another (472/05) [2006] ZASCA 162; [2007] 1 All SA 375 (SCA) (26
September 2006), para 5 (Relyant).
2 Minister for Justice & Constitutional Development v Moleko 2009(2) SACR 585 (SCA), para 8 (Moleko).
committed an offence be based on reasonable grounds and the offence in question
must be that which is listed in Schedule 1 of the CPA. Schedule 1 of the CPA
contains a list of more serious offences. Housebreaking w ith intent to commit an
offence and robbery are among those offences. Section 40(1)(b) of the CPA is the
provision of the law in terms of which a warrantless arrest may be made by a peace
officer who entertains a suspicion based on reasonable grounds that the person to
be arrested committed an offence listed in Schedule 1 of the CPA.3
[41] The test for the reasonableness of the suspicion on the basis of which a
person is arrested without a warrant was enunciated in Mabona and Another v
Minister of Law and Order and Others,4 where the court stated:
‘[T]he reasonable man will therefore analyze and assess the quality of the information at his
disposal critically and he will not accept it lightly or without checking it where it can be checked.
It is only a fter an examination of this kind that he will allow himself to entertain a suspicion
which will justify an arrest. This is not to say that the information at his disposal must be of
sufficiently high quality and cogency to engender in him a conviction that the suspect is in fact
guilty. The section requires suspicion not certainty. However, the suspicion must be based upon
solid grounds. Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion .’ (My
emphasis.)
[42] Equally significant is t he fact that the complainant was not the one who
witnessed the commission of the offences. In the normal course of crime
prevention and investigation, there would indeed be no bar in Capt. Maliwa
receiving the hearsay information of the complainant which w as recorded in the
complainant’s statement dated 02 June 2019. However, two fundamental issues
arise from his decision to solely act upon that hearsay information and the
complainant’s pointing out. I deal with those issues below.
complainant’s pointing out. I deal with those issues below.
3 Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G-H.
4 Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) at 658G-H.
[43] Firstly, from the description of the suspects given by the complainant in his
statement dated 02 June 2019, there is no specific identification of the plaintiff as
the suspect, either by the complainant’s daughter or the complainant himself. The
only time when the complainant provided the names of the suspects as allegedly
furnished to him by his daughter was on 04 June 2019 via a telephone call to Capt.
Maliwa. Even this information was still hearsay in nature. This is compounded by
the absence of an official record of the te lephone conversation between Capt.
Maliwa and the complainant in which this further information was given to him.
[44] Although Capt. Maliwa had an opportunity to verify the information
provided to him by interviewing the complainant’s daughter when he we nt to the
complainant’s home, he did not do so. His excuse was that he was loath to wake
the complainant’s daughter up as she was a school going child. This, in
circumstances where the identity of the suspects was evidently at the centre of his
interaction with the complainant who did not witness the commission of the
offence.
[45] Secondly, after Capt. Maliwa searched the plaintiff’s house following his
arrest, he found no stolen property that would supposedly link him to the
commission of the offences. It must be accepted that apart the complainant’s say-so
and pointing out of the plaintiff as a suspect of the crimes, at that point, there was
no objective evidence indicating that the plaintiff had committed the offences of
housebreaking with intent to com mit a crime, and robbery. Heedless of this
important fact, Capt. Maliwa subsequently detained the plaintiff.
[46] In as much as Capt. Maliwa was not required to have certainty that the
plaintiff had committed the crimes, but a suspicion, it seems to me th at he acted
precipitately without any solid grounds on which to arrest the plaintiff. For if, as
mentioned, the complainant did not witness the commission of the offences, it was
necessary for Capt. Maliwa to verify the information pertaining to the identi ty of
the suspects with the eyewitness to the crimes who was available when he went to
the complainant’s home on 04 June 2019.
[47] Even had Capt. Maliwa been lawfully authorized to arrest the plaintiff, he
was obliged to apply his or her mind to the circ umstances relating to his detention
and this includes applying his or her mind to the question whether detention was at
all necessary.5 For it does not automatically follow that if the arrest is lawful the
detention will also be lawful.
[48] Capt. Maliwa arrested and detained the plaintiff on the kind of flighty or
arbitrary grounds or suspicion that Jones J spoke about in the above quoted dictum
in Mabona.6 I make the finding that the plaintiff’s arrest and detention 04 June
2019 had no justification in law.
[49] Since the plaintiff holds the first defendant liable for the damages resulting
from his continued detention after his first appearance in court un til 26 June 2019,
I must determine whether the there is any basis for fixing liability for the plaintiff’s
further detention from 06 June 2019 on the first defendant, an issue to which I turn
next.
The post-court appearance detention
[50] In resisting the plaintiff’s claim for his detention after his first appearance in
court, the defendant alleged in its plea, that, ‘the plaintiff was detained because of
his unlawful actions.’ Further, that, ‘he was charged with serious offences,’ and that
‘the members of the defendant had to act within the premises of the law.’
5 Mvu v Minister of Safety and Security 2009 (6) SA 82 (GSJ) at 90A; Hofmeyer v Minister of Justice and Another
1992 (3) SA 108 (C); Minister of Police v Foutie and Another (CA59/2020) [2021] ZAECGHC 26 (9 March 2021)
para 37.
6 Supra, footnote 4.
[51] There is indeed n o automatic liability against the first defendant for a
person’s continued detention after appearance in court. The authority of the police
to detain the suspect after arrest endures until his first appearance in court,
whereafter his further detention is dependent on the decision made by the court in
the exercise of its discretion. 7 The police will be liable for the plaintiff’s detention
post-court appearance if by their culp able conduct they caused the harm that
resulted from the further detention.8
[52] Once again, it is not readily discernible from the defence advanced by the
first defendant in its plea whether liability for the plaintiff’s detention after his first
court appearance is sought to be imputed to another party and who that party is. Be
that as it may, further facts emerged from Capt. Maliwa’s testimony pertaining to
his reasons for seeking the postponement of the plaintiff’s case on 06 June 2019.
Even though su ch facts were not pertinently raised in the pleadings, a fact which
Mr Gumede acknowledged, both parties sufficiently ventilated them during trial.
None of them of have been prejudiced.9
[53] A legal duty rests on the arresting police officer to inform th e public
prosecutor of the existence of information which would justify the further
detention. Similarly, where there are no facts which justify the further detention of
a person, this should be communicated to the prosecutor seized with the case. This
information, which must have been established by the police officer, will enable
the public prosecutor and eventually the magistrate to make an informed decision
7 Minister of Safety and Security v Tyokwana [2014] ZASCA 130; 2015 (1) SACR 597 (SCA), para 38 (Tyokwana).
8 De Klerk v Minister of Police (CCT 95/18) [2019] ZACC 32; 2019 (12) BCLR 1425 (CC); 2020 (1) SACR 1 (CC);
2021 (4) SA 585 (CC) (22 August 2019), para 63.
9 Minister of Safety and Security v Slabbert (668/2009) [2009] ZASCA 163; [2010] 2 All SA 474 (SCA) (30
November 2009, para 12.
whether or not there is any legal justification for the further detention of the
person.10
[54] The postponement of the plaintiff’s case on 06 June 2019 at the instance of
Capt. Maliwa was sought in circumstances where Capt. Maliwa had found no
objective evidence connecting the plaintff to the commission of the offences. This
fact was crucial in the determination of the plaintiff’s eligibility to be released on
bail on his first appearance in court. This is a fundamental deficiency in the case of
the state which Capt. Maliwa ought to have brought to the attention of the
prosecutor for the purpose of bail consideration. Capt. Maliwa’s assertion that he
had no obligation to convey his views on the release of the plaintiff on bail cannot
be sustained.
[55] Not only that, but, perhaps astoundingly, even though a statement by the
complainant withdrawing the charges against the plaintiff was made before Capt.
Maliwa on 12 June 2019, he never brought it to the attention of the prosecutor on
that same day. If this is not obstructive conduct on the part of Capt. Maliwa, I do
not know what is. His explanation that he only became aware of the statement after
his departure in November 2019 is artificial when regard is had to the fact the
withdrawal statement was made before him.
[56] Furthermore, it is not without significance that on his own admission, Capt.
Maliwa failed to submit the plaintiff’s profile to the prosecutor before the remand
date of 26 June 2019 although the profile was made available to him within the
seven-day-postponement, i.e. between 06 and 12 June 2019. Unsurprisingly, on 26
June 2019, Mr Manase who was the prosecutor seized with the matter in court did
not object to the plaintiff’s release on bail. Had Capt. Maliwa brought the
10 Botha v Minister of Safety and Security and Others, January v Minister of Safety Security and Others (575/2009;
576/2009) [2011] ZAECPEHC 12 (2 April 2011), para 30.
plaintiff’s profile to the attention of the prosecutor as soon as he received it in the
period between 06 and 12 June 2019, it is doubtful that the prosecutor’s decision
not to oppose bail on 26 June 2019 would have been different on an earlier date.
Even if I am wrong in making this assertion, it has not been said in these
proceedings that on 26 January 2019 there w as further evidence in the docket
which linked the plaintiff to the commission of the offences apart from the two
statements of the complainant; Ms S[...]’s statement, and the arresting officer’s
statement that were in the prosecutor’s possession on the pl aintiff’s first
appearance in court.
[57] For all the foregoing reasons I come to the conclusion that Capt. Maliwa
acted culpably when he sought the postponement of the plaintiff’s case in the
circumstances I have set out above. He acted culpably when he f ailed to advise the
prosecutor on 12 June 2019 that the complainant had filed a statement withdrawing
the charges against the plaintiff, and when he failed to submit to the prosecutor the
plaintiff’s profile between 06 and 12 June 2019 and give insight int o his eligibility
to be released on bail.
[58] Capt. Maliwa’s culpable conduct is closely connected to the harm that the
plaintiff suffered as a result of his detention until 26 June 2019. Therefore, the first
defendant is liable for the plaintiff’s damag es resulting from his detention after his
court appearance until 26 June 2019. Mr Gumede’s concessions regarding the first
respondent’s liability for the plaintiff’s arrest and detention before and after his
court appearance were well made. I turn to deal with the plaintiff’s claim for
malicious prosecution.
The claim for malicious prosecution
[59] At the inception stage of the prosecution, evidence that would link the
plaintiff to the commission of house breaking with intent to commit a crime, apart
from the evidence of his identification as a suspect, which I will deal with shortly,
would i nclude the discovery of the stolen items from him. To substantiate the
allegation of robbery, the state required acceptable evidence that: (a) the
complainant’s items were taken from his possession (b) by use of force. In this
sense, that force would have been used to subdue the person who had the custody
of the property at the time of the robbery.
[60] As held in National Director of Public Prosecutions v Sijoyi Robert
Mdhlovu,11 a prosecutor need not have evidence establishing a prima facie case or
proof beyond reasonable doubt when deciding to prosecute and accused. Suspicion
of guilt on reasonable grounds would suffice. The fundamental question is what a
reasonable prosecutor would have done considering the information available at
the relevant stage.12
[61] It is to be accepted that where the evidence contained in the docket is
unclear, the prosecution is at liberty to seek further clarity from the investigating
officer and to issue instructions for further investigation as would meet the
exigencies of the case. I am willing to accept that the statements of the
complainant, the arresting officer and Ms S[...], individually read, contain the
certain of elements of offences of house breaking with intent to commit an offence
and robbery. However, witness s tatements are not read individually for the
11 National Director of Public Prosecutions v Sijoyi Robert Mdhlovu (194/2023) [2024] ZASCA 85; 2024 (2) SACR
331 (SCA) (3 June 2024).
12 Id, para 21.
purposes of making a decision whether to enrol the case against the accused. This
much was confirmed by Mr Manase.
[62] The difficulty I have with the statements of the complainant and his daughter
is that in re gard to the offence of robbery, when they are read cumulatively, they
provide no correlation regarding the crucial element of the use of force during the
robbery. In his statement, the complainant alleged that his daughter explained to
him that when the su spects took the television set and the two cell phones, one of
them had pushed her head against the couch and ordered her not to lift it up again.
Ms S[...] does not make mention of this aspect in her statement. Instead, she gives
the impression that the s uspects entered the house and removed the items without
having any interaction with her, save for the fact that she was pretending to be
asleep all that time while in truth ‘she saw who they were.’
[63] The absence of the crucial element of force from the statement of Ms S[...],
the supposed eyewitness to the crimes, ought to have brought about some doubt in
the mind of the prosecutor as to the reasonableness of any suspicion that there was
a robbery. This lacuna and the admittedly vague identification of the suspect of the
crimes is not cured by the arrestor’s statement of Capt. Maliwa who, as mentioned,
never verified the information he was given by the complainant as to the identity of
the suspects.
[64] It is difficult to comprehend how Mr Manase was s atisfied that the plaintiff
was one of the persons whom Ms S[...] mentioned in her statement. His concession
that Ms S[...]’s statement did not clearly identify the plaintiff as the suspect is
telling. Even though Capt. Maliwa states in his statement that the suspects “were
known as Sphe Caza and Sikhusele Mlisa”, the suspect’s last names do not appear
from any of the statements that he obtained from Ms S[...] and the complainant.
The fact that the complainant went to point out the plaintiff as the suspect does not
cure this deficiency since the complainant did not witness the offences and there
was no consultation with Ms S[...] to verify the suspects’ identity.
[65] In Prinsloo and Another v Newman,13 it was held that the test for reasonable
and probable cause is an objective one. It is not based on the subjective beliefs or
motives of the prosecutor. Reasonable and probable cause exists if a reasonable
person would have concluded that the accused was probably guilty on the facts
available to the prosecutor at the time.
[66] It must also have been evident to Mr Manase from the arresting officer’s
statement that the plaintiff was not found with any property that was stolen from
the complainant. This, coupled to the vague identification of the plaintiff as th e
suspect required of Mr Manase to satisfy himself that the person that Capt. Maliwa
arrested to begin with, was the person who committed the offences and whom he
should prosecute. At best for him, he could have done so done by means of further
statements being obtained from the complainant’s daughter as the supposed
eyewitness to the alleged crimes.
[67] Although at first appearance in court, the plaintiff’s case was postponed for a
period of seven days until 12 June 2019, Mr Manase was at pains to explai n why
there was no objective evidence of his instructions to the investigator that further
investigation be conducted into the aspect of the identity of the plaintiff as one of
the suspects at that earliest stage. Notwithstanding this, the case against the
plaintiff continued until charges were withdrawn against him on 05 December
2019.
13 1975 (1) SA 481 (A); see also, Relyant Trading (Pty) Ltd v Shongwe and Another [2006] ZASCA 162; [2007] 1
All SA 375 (SCA) paragraph 14; Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A) at 136A-B.
[68] A conundrum emerged from the evidence adduced regarding the filing of the
complainant’s withdrawal statement. According to Mr Manase, he only became
aware of the state ment on 05 December 2019 when he requested the court to
withdraw the charges against the plaintiff. In the absence of the investigation diary,
this Court only has Mr Manase’s say -so regarding when he became aware of the
complainant’s withdrawal statement dated 12 June 2019.
[69] With that said, the mystery surrounding the filing of the withdrawal
statement dated 12 June 2019 does not constitute a supervening fact in the further
conduct of the prosecution by Mr Manase after he enrolled the case on 06 June
2019. From the inception of the prosecution, Mr Manase knew that the identity of
the plaintiff as the culprit was vague. He also knew that no items of stolen property
belonging to the complainant were found in possession of the plaintiff.
[70] In as much as Mr Manase did not require proof beyond reasonable doubt that
the plaintiff was guilty of the alleged crimes at the time he enrolled the case, on his
own showing, it was on 26 June 2019 that he requested the postponement of the
matter for further investiga tion for the first time. The last postponement for the
same reason was until 19 November 2019.
[71] Disconcertingly, Mr Manase could not confirm whether he ever issued any
instructions to the investigating officer to undertake further investigation of the
obscure identity of the plaintiff and other aspects of the case for the entire period
from 06 June to 19 November 2019. If Mr Manase did issue such instructions, he
would have no difficulty saying so despite the absence of the investigation diary.
An irresistible finding is that he did not. This finding is fortified by the testimony
of Capt. Maliwa that the only instruction that was issued to him by the prosecutor
was in relation to the submission of the plaintiff’s criminal profile.
[72] The plaintiff is required prove that the prosecutor acted with animus animus
iniuriandi, in the sense that he/she had and intention to injure him , negligence or
even gross negligence is insufficient. As explained in Tyokwana,14 animus
injuriandi means that the defendant, while being aware of the absence of
reasonable grounds for the prosecution, directs his or her will to prosecuting the
plaintiff. Consciousness of wrongfulness will be proven if the defendant did not
honestly believe that the plaintiff is guilty or that reasonable grounds exist for the
prosecution.15 Dolus eventualis will suffice.16
[73] Mr Manase failed to issue instructions to the i nvestigating officer for further
investigation of the case in circumstances where he acknowledged that the
identification of the plaintiff from the witness statements available to him when he
enrolled the case was vague. Furthermore, the statement of Capt. Maliwa indicated
that no property belonging to the complainant was found in possession of the
plaintiff which linked him to the commission of the offences.
[74] When regard is had to the information that the Mr Manase had at his
disposal, it cannot be said that he honestly believed that the plaintiff was guilty of
any of the offence he was alleged to have committed; or that there were reasonable
grounds for the pr osecution. He acted animo injuriandi in continuing with the
plaintiff’s prosecution until 05 December 2019. The plaintiff’s claim for malicious
prosecution must succeed. What remains is the question of the quantum of
damages.
The quantum of damages
14 Tyokwana, footnote 7 supra, para 15.
15 Ibid para 15.
16 Moleko, para 64.
[75] Damages are awarded as a gesture of goodwill to the aggrieved and they do
not rectify the wrong that took place .17 They are not a means to enrich the
aggrieved party.18 It is also their purpose to deter and prevent future infringements
of fundamental rights by organs of state. 19 There is no mechanical way of
determining with precision what a fair amount of compensation would be in a
given case. Regard must be had to a number of indeterminable and
incommensurable factors, presented by way of evidence. Those factors include the
duration of the detention, the circumstances under which the arrest and detention
occurred; the presence or absence of improper motive or malice on the part of the
defendant; the conduct of the defendant; the nature of the deprivation; the status
and standing of the plaintiff.’20
[76] While it is always helpful to have regard to previous awards, as held in
Minister of Safety and Security v Tyulu 21 they are not meant to be a benchmark of
the amount of damages to be awarded in a given case, otherwise, the court’ s
discretion in determining an appropriate award of damages would be
impermissibly fettered.22 The correct approach is to have regard to all the facts of
the particular case and to determine the quantum of damages on such facts.
[77] Mr Sintwa submitted th at an amount of R500 000.00 would be fair
compensation for the injury suffered by the plaintiff as a result of his unlawful
arrest and detention for 22 days. He further submitted that R600 000.00 was
reasonable compensation for the harm caused to plaintiff when he was maliciously
17 Ibid para 50.
18 Spannenberg and Another v Minister of Police18 (2993/2019) [2022] ZANWHC 4 (24 February 2022) para 20.
19 Mahlangu and Another v Minister of Police (CCT 88/20) [2021] ZACC 10; 2021 (7) BCLR 698 (CC); 2021 (2)
SACR 595 (CC) (14 May 2021).
20 Motladile v Minister of Police (414/2022) [2023] ZASCA 94; 2023 (2) SACR 274 (SCA) (12 June 2023) , para 17.
21 2009 (5) SA 85 (SCA).
21 2009 (5) SA 85 (SCA).
22 Spannenberg and Another v Minister of Police22 (2993/2019) [2022] ZANWHC 4 (24 February 2022) para 20.
prosecuted. Mr Gumede asked the court to exercise its discretion in the
determination of an award of damages.
[78] In Minister of Police v Sabisa and Another, 23 where the plaintiffs were
detained for eight days, the Court on appea l by the Minister confirmed the court a
quo’s award of R400 000.00. In Minister of Police v Mjali and Others 24 the Full
Court of this Division awarded R100 000.00 for arrest and detention a period of
two days. In Mtola v Minister of Police 25, the plaintiff was awarded R125 000.00
on appeal for his unlawful detention for 5 days. In Nyanya v Minister of Police 26,
the plaintiff was awarded R160 000.00 for detention for three and a half days. In
Diljan v Minister of Police27, on appeal, the Plaintiff was awarded R120 000.00 for
a period of 3 days’ detention. In Motladile v Minister of Police 28, an award by the
court a quo of R60 00.00 for detention for four nights was increased on appeal to
R200 000.00.
[79] It is by now trite that even though the court determ ines an appropriate
amount of damages as a matter of discretion having to regard to various factors and
what is fair between the parties, the plaintiff is not absolved of adducing evidence
which will enable a court to make an appropriate and fair award. 29 Mr Sintwa
readily conceded that besides the averments that the plaintiff made in support of
his claim for unlawful arrest and detention, he did not adduce evidence of the
conditions in which he was detained. I emphasize that the plaintiff’s particulars of
23 Minister of Police v Sabisa and Another (725/2023) [2024] ZASCA 105; 2024 (2) SACR 553 (SCA) (28 June
2024)
24 Minister of Police v Mjali and Others (CA 91/2022) [2023] ZAECMHC 62 (7 November 2023).
25 Mtola v Minister of Police25 (CA 23/2016) [2017] ZAECMHC 56 (29 June 2017).
26 Nyanya v Minister of Police (3577/2013) [2019] ZAECGHC 136; 2020 (2) SACR 550 (ECG (12 December
2019).
27 Diljan v Minister of Police (746/2021) [2022] ZASCA 103 (24 June 2022).
28 Supra, footnote 20.
28 Supra, footnote 20.
29 Rahim v The Minister of Home Affairs (965/2013) [2015] ZASCA 92; 2015 (4) SA 433 (SCA); [2015] 3 All SA
425 (SCA) (29 May 2015), para 27.
claim were intended to delineate the issues between the parties; to enable the
parties to determine the nature and extent of evidence they would need to present
in support of their claim or defence, as the case may be. They served to pave the
way for the e vidence that each party would lead to establish the facts pleaded.
They could not therefore, substitute evidence.
[80] With that said, the unlawful deprivation of a person’s liberty is, in itself, a
serious injury which constitutes an impermissible infrin gement of his/her
constitutional rights to freedom and security of the person, and to human dignity.
Therefore, notwithstanding the plaintiff’s failure to give evidence of the conditions
of his detention for the period of 22 days, he must still be compensa ted fairly for
the damages he suffered.
[81] The conduct of Capt. Maliwa in arresting and causing the detention of the
plaintiff until 26 June 2019 in the already mentioned circumstances, is an
aggravating factor. Mr Gumede did not indicate that the amoun t suggested by Mr
Sintwa as damages for the plaintiff’s detention for 22 is unreasonable.
[82] Malicious prosecution infringes a person’s right to reputation. The amount to
be awarded for general damages in a claim for malicious prosecution is at the
discretion of the court. As held in Nakana v Claassens and Others, 30 the factors
that a court must consider in awarding general damages in a claim for malicious
prosecution include the gravity of the charges; the nature of the prosecution; the
length of time the individual was subjected to the prosecution, absence of
reasonable and probable cause in setting the law in motion; the presence of
improper motive or malice in initiating or instigating the prosecution; the
deprivation of liberty; the status, age, and health of the plaintiff; the publicity given
30 Nakana v Claassens and Others (137/2024) [2025] ZASCA 52 (7 May 2025) (Nakana).
to the criminal proceedings and the absence of a reasonable explanation or apology
by the defendant. This is not a closed list.31
[83] Apart from the facts that he pleaded in support of his claim for malic ious
prosecution, the plaintiff adduced no evidence detailing how his malicious
prosecution affected him. He only mentioned that at the time of giving evidence in
the present matter, he was doing odd jobs in Durban, KwaZulu -Natal. In the
absence of facts f rom which the court would assess how the plaintiff was affected
by his malicious prosecution from 06 June to 05 December 2019, the amount
suggested by Mr Sintwa is excessive. That being said, the conduct of the public
prosecutor in prosecuting the plaintiff serves to aggravate the defendant’s position.
The plaintiff was subjected to the proceedings from 06 June to 05 December 2019
in circumstances where no reasonable and probable cause for the prosecution
existed.
[84] In Nakana, an award of R250 000.00 fo r malicious prosecution was
decreased on appeal to R80 000.00. In that case, the third respondent in whose
favour the award was made in the court a quo was prosecuted from July 2015 until
January 2016 when charges were withdrawn by the prosecutor. The thir d
respondent who was 60 years old at the time of his prosecution conducted a
conservation business on a farm. The only evidence that was adduced by the
plaintiff in the present case was regarding his current employment as a casual
worker in Durban.
[85] It is a trite principle of the law that the Court’s evaluation of an appropriate
award must take into account the current day value of the currency and not its
value at the earlier time. For the purposes of the instant case an award that I
31 Id, para 22.
consider appropriate must be in terms of the value of currency in 2026 being the
time of assessment of the plaintiff’s damages. I make the finding that the amount
of R500 000.00 is reasonable compensation for the harm suffered by the plaintiff
resulting from his unla wful arrest on 04 June 2019 and detention until 26 June
2019. The amount of R60 000.00 is an appropriate amount of compensation for the
plaintiff’s damages resulting from his malicious prosecution.
Costs
[86] The general rule is that costs follow the resul t, unless there are exceptional
circumstances which warrant a departure from this rule. One of those exceptions is
where a party fails to follow a particular procedure which, if followed, would
curtail the proceedings. 32 The first defendant’s plea to the p laintiff’s claim for
unlawful arrest and detention ought to have been excepted to on the relevant
grounds set out in Uniform Rule 23. This was not done. Be that as it may, the
conduct of the first defendant in persisting with that kind of a plea only for i ts
counsel to make concessions towards the end of the trial is egregious and inimical
to the requirement of expeditious disposal of litigation. For this reason, despite the
plaintiff’s own unconscionable conduct in failing to except to the first defendant’ s
plea, it would not be just to deprive him of his costs.
[87] None of Counsel addressed me on the scale at which costs must be
recoverable. The default position as set forth in Uniform Rule 67A is that costs are
awarded on scale A unless there is justification for the application of a higher scale,
such as the unusual complexity of the case. The present case is not unusually
complex and there is no justification for awarding costs on a higher scale.
Order
32 Scheepers and Nolte v Pate 1909 TS 353 at 356, referred to in Van Loggenberg - Erasmus Superior Court
Practice, V olume 2 [Service 13, 2020] D5-14.
[88] In the result, the following order shall issue:
1. The first defendant is held liable for the plaintiff’s damages resulting from
his arrest on 06 June 2019 and detention until 26 June 2019.
2. The first defendant shall pay to the plaintiff the amount of R500 000.00 as
compensation for the damages he suffered resulting from his unlawful arrest
and detention mentioned in (1) above.
3. The second defendant is held liable for the plaintiff’s damages resulting
from his malicious prosecution in the Mt Frere Magistrates’ Court from 06
June 2019 until 05 December 2019.
4. The second defendant shall pay to the plaintiff the amount of R60 000.00 as
compensation for the harm he suffered as a result of his malicious
prosecution.
5. The aforementioned awards shall attract interest at the prescribed legal rate
calculated from the date of this judgment to date of payment.
6. The first and second defendants shall pay the plaintiff’s costs on scale A
referred to in Uniform Rule 67A, jointly and severally, the one paying the
other to be absolved.
__________________
L RUSI
JUDGE OF THE HIGH COURT
Appearances:
For the plaintiff : Adv S Sintwa
Instructed by : Ntshinga Attorneys Inc., Mthatha
For the 1st and 2nd defendants : Adv N Gumede
Instructed by : The Office of the State Attorney, Mthatha
Dates heard : 21, 22 & 24 October 2025
Date delivered: 17 February 2026