2
Introduction
[1] This is an appeal against the whole of the judgment and order of Halgryn AJ (the
court a quo) delivered on 16 August 2023. In that judgment, the court a quo
dismissed the Appellants' claims for damages arising from their alleged unlawful
arrest, unlawful detention and malicious prosecution, with costs.
[2] The Appellants are Daniel Lethena Motloung (“the First Appellant”) and Edward
Strike Thokoane N.O ., cited in his representative capacity as executor of the
estate of the late Pitsi Solomon Thokoane (“Solomon”), who was originally cited
as the Second Appellant. Solomon passed away on 19 September 2020 and the
executor was substituted by order of this Court dated 31 May 2022. For
convenience, Solomon will continue to be referred to as “the Second Appellant”.
[3] The First Respondent is the Minister of Police, cited in the official capacity as the
executive authority responsible for the South African Police Service (“SAPS”)
and the Second Respondent is the National Director of Public Prosecutions, cited
in the official capacity as the head of the national prosecuting authority.
[4] This matter has a lengthy history. The action was initially instituted in 2016 and
the trial was heard over several days, culminating in the judgment of the court a
quo on 16 August 2023. As set out above, the court a quo dismissed all of the
Appellants' claims. On 3 May 2024, the court a quo refused the Appellants'
application for leave to appeal , with costs. Thereafter, the Appellants petitioned
the Supreme Court of Appeal (“the SCA”) for leave to appeal. On 8 August 2024,
the SCA granted leave to appeal to the Full Court of the Gauteng Division,
Johannesburg, and ordered that the costs of the application for leave to appeal
to this Court and the court a quo, be costs in the appeal.
[5] The Appellants have instituted an application for condonation for the late
prosecution of the appeal. This condonation application falls to be determined
prosecution of the appeal. This condonation application falls to be determined
before this Court considers the merits of the appeal.
3
Background
[6] The relevant facts before the court a quo are largely common cause or not
seriously in dispute. Both Appellants were reservist police officers attached to
the Meyerton Police Station prior to their arres t. During the night of 4 to 5
November 2013, a number of police officers embarked on a joint operation based
on information from an informer about business robberies that had occurred in
the Evaton area. At approximately midnight, the police team arrived at the
residence of one Happy Maseko (“Maseko”), where she resided with her partner,
Samuel Mphuthi Moeketsi (“Moeketsi”).
[7] Upon arrival, Moeketsi pointed out a number of illegal firearms found under the
bed, including a Vector Rifle and two 9mm pistols. Moeketsi informed the police
that the firearms had been brought to the house by the Second Appellant.
Moeketsi was arrested at the scene.
[8] Acting on this information, police officers proceeded to the residence where the
Second Appellant was staying with his girlfriend. The officers entered the
premises and informed the Second Appellant that he had been implicated in the
business robberies and in the “delivery” of illegal firearms. He denied the
allegations and stated that he had visited Moeketsi's residence to borrow money.
Constable Khabo arrested the Second Appellant without a warrant for
possession of unlicensed firearms.
[9] Captain Fouche, an experienced police officer, was requested to investigate the
matter. He arranged for Maseko to be brought to the Meyerton Police Station for
questioning. On 6 November 2013, whil st walking with Capt ain Fouche in the
yard of the police station , Maseko spontaneously identified the First Appellant,
who was seated as a passenger in a police vehicle entering the yard. Maseko
informed Captain Fouch e that the First Appellant was the driver of the vehicle
that had brought the firearms to her residence on the night of 4 November 2013.
[10] Captain Fouch e approached the First Appellant and informed him of the
[10] Captain Fouch e approached the First Appellant and informed him of the
allegations. He also advised the First Appellant that the tracking device fitted to
the police vehicle confirmed that the vehicle had been at Maseko's residence on
4
the relevant date. The First Appellant admitted being at the premises but
maintained that he was there to borrow money. Captain Fouche arrested the First
Appellant without a warrant for unlawful possession of firearms.
[11] Both appellants were brought to court within 48 hours of their arrest. The matter
was enrolled by one Coetzee, a senior public prosecutor with over 30 years'
experience, who assessed the contents of the docket, including the stateme nts
of Maseko and the arresting officers, as well as the tracking report. He
determined that there was sufficient evidence linking the Appellants to the
offences and accordingly enrolled the matter.
[12] The Appellants were detained pending trial. The Second Ap pellant abandoned
his bail application. The First Appellant's initial bail application was refused but
he was granted bail at a second application on 30 July 2014 after Maseko
recanted her earlier statements. The criminal trial proceeded and, on 17
February 2015, both Appellants were discharged in terms of section 174 of the
Criminal Procedure Act 51 of 1977 (“the CPA”).
[13] In the subsequent civil action, the Appellants claimed damages for unlawful
arrest, unlawful detention and malicious, alternatively, negligent, prosecution.
The court a quo dismissed all these claims with costs, finding that the arrests
were lawful; that the prosecutors had acted reasonably and that there was no
basis for a finding of malicious or negligent prosecution.
Application for condonation
[14] The factual matrix of the condonation application is set out in the founding
affidavit deposed to by the First Appellant and the confirmatory affidavit of Peter
Jordi, the Appellants' attorney of record.
[15] Leave to appeal to the Full Court was granted by the SCA on 8 August 2024. In
terms of Rule 49(6)(a) of the Uniform Rules of Court, the Appellants were
required to make a written application to the Registrar for a date for the hearing
required to make a written application to the Registrar for a date for the hearing
of the appeal. The Appellants delivered their application for condonation
approximately four months later, on 9 December 2024. They concede that the
5
appeal was not prosecuted timeously and seek condonation for the delay. Whilst
the Notice of Motion in the condonation applicati on refers to a delay of "around
7 days", this is an understatement. The delay was in fact substantially longer,
extending from August 2024 to December 2024. However, the Appellants explain
that the application for a date for the hearing of the appeal was d elivered
simultaneously with the condonation application.
[16] The explanation for the delay is as follows:
16.1. On 15 August 2024, the Appellants' attorney received an email from
correspondent attorneys in Bloemfontein indicating that leave to appeal had been
granted. Advocate Kerr-Phillips, who had conducted the trial and drafted the
applications for leave to appeal, was unavailable, and on 27 August 2024, he
instructed Advocate van Rooyen to draft the necessary notice of appeal to this
Court.
16.2. Advocat e van Rooyen required time to familiarise himself with the
intricacies of the matter. He provided a draft notice of appeal on 8 September
2024, which was served and filed on 9 September 2024.
16.3. An electronic copy of the appeal record was received on 1 October 2024.
The attorney then had to print, collate, index, paginate and arrange for the
copying and binding of the record.
16.4. On 4 October 2024, Advocate Kerr -Phillips was instructed to draft the
Appellants’ Practice Note, Heads of Argument and list of authorities. However,
Advocate Kerr -Phillips was engaged in numerous other matters between
October and December 2024, as detailed in the Appellants’ Founding Affidavit.
16.5. On 6 November 2024, the Appellants’ attorney instructed Advocate van
Rooyen to prepare the Heads of Argument, as Advocate Kerr-Phillips remained
unavailable. Advocate van Rooyen was also engaged in numerous matters
during November and December 2024, as set out in the founding affidavit.
16.6. The Heads of Argument and the condonation application were finalised on
9 December 2024.
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[17] The Appellants submit that the grounds of appeal are numerous and intricate,
requiring careful analysis, and that the delay was not caused by them personally
but by the unavailability of counsel and the complexities of the matter. They
contend that they are bona fide in pursuing the appeal and that the matter is of
great importance both to them and the community.
[18] The Respondents oppose the condonation application, ar guing that the
explanation is inadequate and that the Appellants have not demonstrated
reasonable prospects of success on appeal. They point out that the Appellants
were represented by the Wits Law Clinic, which has multiple counsel available to
brief, and that the delay could have been avoided.
[19] The legal principles governing condonation applications are well -established.
In Van Wyk v Unitas Hospital and Another (Open Democracy Advice Centre as
Amicus Curiae),1 the Constitutional Court held that condonation is not a mere
formality but is to be granted when it is in the interests of justice to do so. The
factors to be considered include , inter alia, the extent of the delay ; the
explanation for the delay; the prospects of success; the importance of the matter;
the prejudice to the parties and the overall interests of justice. In the matter
of Federation of Governing Bodies of South African Schools (FEDSAS) v MEC
for Education, Gauteng,2 the Constitutional Court reiterated that the standard for
determining an application for condonation is the interests of justice. A
reasonable and acceptable explanation for the delay must be proffered and the
court must consider all relevant circumstances, including the na ture of the relief
sought; the extent and cause of the delay ; the effect of the delay on the
administration of justice ; the reasonableness of the explanation and the
importance of the issues to be raised.3
[20] Applying these principles to the present matter, this Court is satisfied that
[20] Applying these principles to the present matter, this Court is satisfied that
condonation should be granted. Whil st the delay is more substantial than the
seven days claimed by the Appellants, the explanation for the delay is, in the
opinion of this Court, reasonable and acceptable. The Appellants are laypersons
1 2008 (2) SA 472 (CC) at paragraph [20].
2 2016 (4) SA 546 (CC) at paragraph [44].
3 See also Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC) at
paragraph [22].
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who are dependent on legal representatives provided by the Wits Law Clinic.
Also, t he matter is fairly complex, involving numerous grounds of appeal and
legal issues. The unavailability of counsel who w as intimately familiar with the
matter necessi tated the involvement of other counsel who required time to
prepare. The Appellants have demonstrated that they were diligent in pursuing
the appeal, albeit with some delays occasioned by circumstances beyond their
control.
[21] The Respondents have not demonst rated that they will suffer any significant
prejudice if condonation is granted, beyond the usual prejudice of having to meet
the appeal. Conversely, the Appellants would suffer substantial prejudice if they
were denied the opportunity to have their appeal heard, given , inter alia, the
importance of the matter to them.
[22] The prospects of success on appeal, whil st ultimately found to be lacking, are
not so hopeless as to render the granting of condonation an exercise in futility.
Had they been, the SCA is unlikely to have granted leave to appeal. The issues
raised on behalf of the Appellants were arguable and warranted consideration by
this Court.
[23] In the circumstances, it is in the interests of justice that condonation be granted
for the late prosecution of the appeal. The costs of the condonation application
will be costs in the appeal.
The grounds of appeal
[24] The Appellants' Notice of Appeal, dated 9 September 2024, sets out numerous
grounds of appeal. In summary, the Appellants submit that the court a quo erred
in finding that:
25.1. an arrest without a warrant for unlawful possession of firearms is competent
in terms of section 40 read with Schedule 1 of the CPA;
25.2. an arrest founded upon an (allegedly) unlawful confession or admission by
a co-accused is lawful;
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25.3. an arrest founded upon information from an informer is lawful, particularly
where the arresting officer was not seized with the contents of the informer's
statement;
25.4. the conduct of the prosecutor in enrolling the matter was reason able,
particularly regarding his failure to consider the circumstances of the arrest ; the
admissibility of evidence and the defence raised by the Appellants;
25.5. the claims of the Appellants should be dismissed, particularly having
regard to the court a quo’s assessment of the evidence relating to the recantation
of Maseko's statements and the continuation of the prosecution thereafter;
25.6. the First Respondent had discharged the onus to prove a reasonable
suspicion for arrest without a warrant;
25.7. the Second Respondent had shown compliance with prosecutorial
responsibility and the duty of prosecutors to consider defences raised by
accused persons;
25.8. the claim for negligent prosecution, in the alternative, should be rejected.
[25] In their Supplementary Heads of Argument, the Appellants further contend that:
26.1. the court a quo failed to properly assess the hearsay nature of the
informer's evidence, which could not form the basis of a reasonable suspicion
without corroborating circumstances;
26.2. the confessions obtained from Moeketsi were inherently unreliable . They
were obtained in violation of due process and should not have been used to
justify the Appellants' arrests;
26.3. Captain Fouche’s consultation with Moeketsi, who was legally represented,
without his attorney present, constituted an irregularity that tainted the entire
prosecution;
26.4. the prosecution failed in its duty of disclosure during the bail application
and failed to keep the court properly informed of weaknesses in the State's case;
9
26.5. the police and prosecution failed to have regard to standing orders and
prosecutorial regulations, which are binding and should inform the exercise of
their discretion.
The case for the Appellants
[26] The Appellants' case, as articulated in their Heads of Argument and
Supplementary Heads of Argument , is that the use of illegally or improperly
obtained evidence to satisfy the requirements for arrest without a warrant ,
together with the enrolment and continuation of the prosecution , renders th e
entire process unlawful. They contend that the court a quo failed to properly
consider the "seepage" of fair-trial rights into pre -trial procedures and that the
decision-makers at each watershed moment ought to have considered the
admissibility and reliability of the evidence before them.
[27] Specifically, the Appellants submit that:
28.1. The arrests were triggered by information from an informer, the content of
which was never disclosed. No statement was taken from the informer, and the
arresting officers r elied on double hearsay, which cannot form the basis of a
reasonable suspicion. Reliance was placed on the decision in Biyela v Minister
of Police,4 where the SCA held that whilst hearsay evidence may be relied upon
for arrest, it must be credible and trustworthy.
28.2. The confession or admission made by Moeketsi was inadmissible against
the Appellants, having been obtained by non -commissioned officers without
proper warnings, fol lowing an unlawful entry and arrest. This inadmissible
evidence was nonetheless used to justify the Appellants' arrests. In this regard,
the Appellants rel ied up on S v Maliga 5 and S v Gqoki and Others 6 for the
proposition that confessions obtained in viola tion of constitutional safeguards
cannot be relied upon, even at the pre-trial stage.
4 2023 (1) SACR 235 (SCA).
5 2015 (2) SACR 202 (SCA).
6 2025 (1) SACR 465 (ECM).
10
28.3. It was also submitted that Maseko's evidence was problematic as she was
a single witness; an accomplice and later recanted her statements entirely. Her
evidence ought not to have been relied upon without corroboration and the
prosecution should have re-assessed its position once she recanted.
28.4. No firearms were found in the possession of either appellant; no fingerprint
evidence connected them to the firearms found at Moeketsi's residence and
there was no evidence establishing joint possession or common purpose.
28.5. The prosecutors failed in their duty to consider the Appellants' defence,
which was known to the arresting officers but not disclosed to the prosecutors.
The failure to consult with key witnesses and to reassess the case when
evidence deteriorated, amounted to negligent prosecution. Reliance was placed
on Minister of Safety and Security v Tyokwana 7 and Matsose v Minister of
Police8 regarding the duty of the police to keep prosecutors properly informed.
28.6. Captain Fouche’s consultation with Moeketsi, who was legally represented,
without his attorney present, constituted an irr egularity that tainted the
subsequent proceedings. In this regard, the Appellants relied upon S v Masoka
and Another9 as support for the prohibition on interfering with defence witnesses.
28.7. The court a quo erred in finding that prosecutors are not required to
consider the admissibility of evidence at the enrolment stage. Here, the
Appellants relied upon the decisions in Menyo v Minister of Police 10 and The
National Director of Public Prosecutions v Swarts 11 which, it was submitted ,
emphasised the prosecutor's duty to ensure that prosecutions are based on
admissible evidence.
28.8. It was also submitted that the Appellants' rights under section 35(1) of the
Constitution were violated, as they were not properly informed of their rights upon
7 2015 (1) SACR 597 (SCA).
8 2023 JDR 2923 (NWM).
9 2015 (2) SACR 268 (ECP).
7 2015 (1) SACR 597 (SCA).
8 2023 JDR 2923 (NWM).
9 2015 (2) SACR 268 (ECP).
10 2024 JDR 4084 (ECM).
11 2020 JDR 1197 (ECG).
11
arrest. Reliance in this regard was placed upon Ndawana v Minister of
Police12 and Wilson v Minister of Police and Another.13
[28] The Appellants seek an order upholding the appeal with costs and substituting
the order of the court a quo with an order granting them damages in the amount
of R1 600 000 each, together with interest and costs on the attorney and client
scale.
The case for the Respondents
[29] The Respondents contend that the judgment of the court a quo is correct and
should be upheld. They submit that:
30.1. The arrests were lawful in terms of section 40(1)(b) of the CPA and the
arresting officers possessed reasonable grounds for suspicion based on the
information available to them at the time. It is trite that the test for reasonable
suspicion is objective and does not require certainty or even prima facie proof.
Reliance was placed upon the matters of Minister of Safety and Security v
Sekhoto and Another 14 and Mabona and Another v Minister of Law and Or der
and Others.15
30.2. The offence of unlawful possession of firearms falls within Schedule 1 of
the CPA, as it is an offence for which imprisonment exceeding six months without
the option of a fine may be imposed. The arrest without a warrant was therefore
competent.
30.3. The use of a confession or admission by a co -accused for the purpose of
arrest is permissible. Section 219 of the CPA only prohibits the use of a
confession as evidence against another person at trial, not for the purpose of
forming a reasonable suspicion to arrest.
12 2025 JDR 0356 (ECM).
13 2025 JDR 1088 (GJ).
14 2011 (5) SA 367 (SCA).
15 1988 (2) SA 654 (SE).
12
30.4. The prosecutors acted reasonably in enrolling the matter and continuing
the prosecution. They were entitled to take the contents of the docket at face
value and were not required to make credibility findings or investiga te defences
raised by the accused.
30.5. The Appellants' detention was lawful, particularly having regard to the fact
that same had been ordered by the court after consideration of the First
Appellant’s first bail application. As set out earlier in this judgment, the First
Appellant's initial bail application was refused but he was granted bail at a second
application on 30 July 2014 after Maseko recanted her earlier statements. There
was no evidence of malice or animus iniuria ndi on the part of any of the
Respondents' officials. Reliance was placed upon Minister for Justice and
Constitutional Development v Moleko 16 and Relyant Trading (Pty) Ltd v
Shongwe and Another.17
30.6. The court a quo correctly applied the principles governing unlawful arrest,
unlawful detention and malicious prosecution. Moreover, it was submitted that
the findings of the court a quo on the facts are supported by the evidence.
30.7. Regarding the informer evidence, the Respondents contend that the arrests
were not based on informer evidence but on direct evidence from Moeketsi and
Maseko, as well as the tracking report. By the time of the arrests, the police had
moved beyond the initial information from the informer.
30.8. Regarding Captain Fouche’s consultation with Moeketsi, the Respondents
contend that there was no improper interference, as Moeketsi was a suspect, not
a defence witness, at the time of consultation.
[30] The Respondents seek an order dismissing the appeal with costs, including the
costs of the application for leave to appeal and the petition to the SCA.
16 2009 (2) SACR 585 (SCA).
17 [2007] 1 All SA 375 (SCA).
13
The facts
[31] The following facts are either common cause or cannot be seriously disputed by
any of the parties, namely:
32.1. The Appellants were reservist police officers attached to the Meyerton
Police Station prior to their arrest.
32.2. On 4 November 2013, Moeketsi was arrested at his residence following a
police operation. Illegal firearms were found at the premises.
32.3. Moeketsi implicated the Second Appellant in the delivery of the firearms to
his residence.
32.4. On 5 November 2013, the Second Appellant was arrested at his girlfriend's
residence without a warrant.
32.5. On 6 November 2013, Maseko identified the First Appellant at the Meyerton
Police Station as the driver of the vehicle that had brought the firearms to her
residence.
32.6. The First Appellant was arrested without a warrant on 6 November 2013.
32.7. Both appellants were detained from the date of their arrest . The First
Appellant was released from custody on 30 July 2014 (after being granted bail at
a second bail application) and the Second Appellant was released from custody
on 17 February 2015 (when he and the First Appellant were both discharged in
terms of section 174 of the CPA).
32.8. Maseko made three statements implicating the Appellants but later
recanted these statements during the First Appellant's second bail application.
The Second Appellant never applied for bail whilst he was in custody.
32.9. Maseko was not called as a witness in the criminal trial and the Appellants
were discharged in the criminal trial on 17 February 2015.
14
The law
[32] The legal principles governing unlawful arrest, unlawful detention and malicious
prosecution, are well-established in our law. As to whether negligent prosecution
forms part of So uth African law, this will be dealt with at an appropriate stage
later in this judgment.
[33] Section 40(1)(b) of the CPA provides that a peace officer may, without a warrant,
arrest any person whom he or she reasonably suspects of having committed an
offence referred to in Schedule 1. The jurisdictional requirements for a lawful
arrest without warrant are: (a) the arrestor must be a peace officer; (b) the
arrestor must enterta in a suspicion; (c) the suspicion must be that the suspect
committed an offence referred to in Schedule 1; and (d) the suspicion must rest
on reasonable grounds.
[34] In Sekhoto,18 Harms DP stated:
"The jurisdictional facts required for a lawful arrest without warrant in terms of s
40(1)(b) are that the arrestor must be a peace officer; he must entertain a
suspicion; the suspicion must be that the suspect committed an offence referred
to in Schedule 1; and the suspicion must rest on reasonable grounds. If these
requirements are satisfied, the arrest is lawful and it is not necessary that the
arrestee should in fact be guilty of the offence. As it is sometimes put, the test is
objective whether, on the facts available to the peace officer at the time, a
reasonable person would have entertained the same suspicion."19
[35] The court further held,20 that "reasonable grounds for suspicion" means that the
suspicion must be based on grounds that would induce a reas onable person to
have the suspicion. It does not require certainty or prima facie proof, but the
suspicion must be more than a mere hunch or intuitive feeling.
18 At paragraph [8].
19 Emphasis added.
20 At paragraph [9].
15
[36] Regarding the use of information from an informer, the court
in Sekhoto21 endorsed the approach i n Mabona,22 where it was held that the
reasonable person will analyse and assess the quality of the information at his
disposal critically, and will not accept it lightly without checking it where it can be
checked. 23
[37] In Biyela,24 the SCA held that a reasonable suspicion can, depending on the
circumstances, be formed based on hearsay evidence, regardless of whether
that evidence is later found to be admissible or not. However, the information
must be credible and trustworthy, and the arresting officer must genuinely act on
the information received from a credible source.
[38] The elements of a claim for malicious prosecution were set out
in Moleko,25 where it was held, inter alia, as follows:
"In order to succeed (on the merits) with a claim for malicious pro secution, a
claimant must allege and prove –
(a) that the defendants set the law in motion (instigated or instituted the
proceedings);
(b) that the defendants acted without reasonable and probable cause;
(c) that the defendants acted with malice (or animo iniuriandi); and
(d) that the prosecution has failed."
[39] In Moleko,26 the court clarified that animus iniuriandi includes not only the
intention to injure but also consciousness of wrongfulness. The defendant must
have been aware of what he was doing and must at least have foreseen the
possibility that he was acting wrongfully but nevertheless continued to act,
21 At paragraph [14].
22 At 658E-F.
23 Emphasis added.
24 At paragraphs [35] to [40].
25 At paragraph [8].
26 At paragraph [64].
16
reckless as to the consequences. Negligence, even gross negligence, will not
suffice. 27
[40] Regarding the role of prosecutors, the court in Relyant Trading 28 held that a
prosecutor is expected to apply his or her mind to the content s of the docket, to
ascertain if there is evidence which, if proved at the trial, will show that an offence
was committed and that the accused is linked to that offence. A prosecutor only
has to establish if reasonable and probable cause exists which warrants
prosecution and that no compelling reason exists not to prosecute. 29
[41] In National Director of Public Prosecutions v Zuma ,30 the SCA held that a
prosecutor's discretion to prosecute is not immune from scrutiny, but courts will
not lightly interfere with the legitimate exercise of prosecutorial authority. A
prosecution will be wrongful if reasonable and probable grounds for prosecuting
are absent and the prosecutor acts with malice.
[42] Section 219 of the CPA provides: that "No confession made by any person shall
be admissible as evidence against another person." This prohibition is directed
at the trial, where no confession may be used as evidence directly or indirectly
against any co-accused. However, there is no statutory prohibition on using a
confession for the purpose of forming a reasonable suspicion to arrest.
[43] In S v Baartman ,31 the erstwhile Appellate Division held that an extra -curial
statement of one accused is inadmissible against a co-accused. This rule applies
to both admissions and confessions and has been given statutory force in respect
of confessions by section 219 of the CPA.
[44] However, as the court a quo correctly observed, this prohibition is expressly
aimed at the use of such statements as evidence at the trial. It does not preclude
an arrest being made based on information received from a co -accused,
27 Emphasis added.
28 At paragraph [6].
29 Emphasis added.
30 2009 (2) SA 277 (SCA) at paragraph [37].
28 At paragraph [6].
29 Emphasis added.
30 2009 (2) SA 277 (SCA) at paragraph [37].
31 1960 (3) SA 535 (A) at 538E-F.
17
provided the arresting officer reasonably suspects that the person to be arrested
has committed an offence.
[45] The du ty of police to keep prosecutors properly informed was emphasised
in Tyokwana,32 where it was held:
"It has often been stressed by our courts, that the duty of a policeman who has
arrested a person for the purpose of having him or her prosecuted, is to give a
fair and honest statement of the relevant facts to the prosecutor, leaving it to the
latter to decide whether to prosecute or not."
[46] In Matsose,33 the court held that prosecutors are bound by the Code of Conduct
for Members of the National Prosecuting Authority, which requires them to
proceed only when a case is well-founded upon evidence reasonably believed to
be reliable and admissible, and not to continue a prosecution in the absence of
such evidence.
[47] Also, in Menyo,34 the court stated that a prima facie case in criminal matters
requires that the allegations, as supported by statements and available evidence,
are of such a nature that if proved in court on the basis of admissible evidence,
the court should convict.
[48] In Swarts,35 the court, citing Minister of Police v Du Plessis ,36 held that a
prosecutor has a duty not to act arbitrarily, must act with objectivity, and must
pay attention to the contents of the docket. The prosecutor's function is not
merely to have the matter placed on the roll to be postponed for further
investigation.
[49] Section 35(1) of the Constitution provides that everyone who is arrested for
allegedly committing an offence has the ri ght to remain silent; to be informed
promptly of that right and of the consequences of not remaining silent. Section
32 At paragraph [23].
33 At paragraph [31].
34 At paragraph [22].
35 At paragraphs [13] and [14].
36 2014 (1) SACR 217 (SCA).
18
35(2)(b) provides that everyone who is detained has the right to choose and to
consult with, a legal practitioner and also to be informed of this right promptly.
[50] In Ndawana,37 the court held that failure to advise an arrested person of these
rights is tantamount to denying the exercise thereof, rendering the arrest
wrongful and unlawful.
[51] Further, in Wilson,38 the court emphasised that the word "promptly" conveys that
the detained person must be informed of the right to legal representation at least
in reasonable time to permit of its meaningful exercise. Rushing to secure a
confession before there is an opportunity for such consultation is a mat erial
breach of constitutional rights.
Does negligent prosecution form part of South African law?
[52] In its judgment, the court a quo, relying on the decision of Heyns v Venter,39 held
that:
“222. The Plaintiffs claim negligent prosecution in the alternative.
223. It is so that the court introduced negligence as a cause of action for liability
in delict, but gross negligence has to be shown.”
[53] Insofar as the pleadings are concerned, it appears that this “alternative” cause of
action received very little, if any, attention. The Plaintiffs’ (Appellants’) Amended
Particulars of Claim only rely thereon in passing , and the grounds upon which
the Plaintiffs rely do not draw any clear distinction between malicious or negligent
prosecution. In the premises, it appears that negligent prosecution (as per the
pleadings) was not pleaded as a separate (alternative) cause of action, but
negligence was pleaded “as an alternative basis ” for the alleged malicious
prosecution.
37 At paragraphs [48] to [50].
38 At paragraph [21].
39 2004 (3) SA 200 (T).
19
[54] The Amended Plea of the Respondents does not deal specifically therewith, and
no exception was ever raised by the Defendants to the fact that negligent
prosecution is not a recognised cause of action in South African law and/or
“negligence” cannot be used in the “alternative” to support an allegation of
malicious prosecution. The Appellants ’ Heads of Argument deal only with
malicious prosecution and the requirements therefor. No mention is made, at all,
of any unlawful prosecution (either malicious or negligent) in their Supplementary
Heads of Argument. Also, no mention of negligent prosecution is made in the
Appellants’ Practice Note. The Respondent’s Heads of Argument deal only with
malicious prosecution. Any alternative cause of action , if relied upon by the
Appellants, was not argued before this Court.
[55] In Heyns, the High Court, on the basis that it was developing the common law in
terms of section 39(2) of the Constitution, held that the requirement of animus
iniuriandi when proving malicious prosecution would also be established where
the defendant was grossly negligent. The court did not hold that negligent
prosecution was a distinct claim separate to malicious prosecution .40 Moreover,
in the matter of Minister for Justice and Constitutional Development & Others v
Moleko,41 the SCA, having considered both Heyns and Relyant Trading held42
that:
"The defendant must thus not only have been aware of what he or she was doing
in instituting or initiating the prosecution, but must at least have foreseen the
possibility that he or she was ac ting wrongfully, but nevertheless continued to
act, reckless as to the consequences of his or her conduct (dolus eventualis).
Negligence on the part of the defendant (or, I would say, even gross negligence)
will not suffice." 43
[56] In the premises, the finding in Heyns that gross negligence is sufficient to
establish malicious prosecution, has been overruled by the SCA in Moleko. It
establish malicious prosecution, has been overruled by the SCA in Moleko. It
must follow that the court a quo was incorrect in relying upon Heyns. However,
Moleko does not address whether there is a claim in South African law for
40 At paras 13 and 14.
41 2009 (2) SACR 585 (SCA).
42 At paragraph [64].
43 Emphasis added.
20
negligent prosecution, as opposed to a claim for malicious prosecution. It was
unnecessary for the SCA to do so. For it to be established that there is, would
require a development of the common law . This was not argued, at all, before
this Court. In light of the pleadings in this matter (as dealt with above) and the
manner in which the trial unfolded before the court a quo , this is not at all
surprising. As a result, this Court is unable, even if it wished to do so, to develop
the common law in this regard. It is one thing to potentially consider negligent
prosecution as an alternative claim to malicious prosecution. However, it is an
entirely different matter to consider a need to develop the common law to include
a separate claim for negligent prosecution. For these reasons, this Court declines
to do so.
[57] In the premises, it is cl ear that negligent prosecution was not raised as an
alternative cause of action on the pleadings in the court a quo and it was incorrect
for the court a quo to deal with it on that basis . In addition, the court a quo was
incorrect in holding that gross negligence was suffic ient to prove animus
iniuriandi as a requirement when considering whether the Appellants had proven
malicious prosecution.
Discussion
[58] Having carefully considered the record ; the comprehensive submissions of
counsel (including the Supplementary Heads of Argument) and the applicable
legal principles, this Court finds that the appeal should be dismissed. The court
a quo's judgment is comprehensive, well -reasoned and correctly applies the
relevant legal principles to the facts of this case.
[59] The central question in this appeal is whether the arrests; subsequent detentions
and prosecutions of the Appellants were unlawful and malicious. The court a quo
answered this question in the negative and this Court can find no basis on which
to interfere with that conclusion.
21
Arrest without a warrant for unlawful possession of firearms
[60] The Appellants contend that an arrest without a warrant for unlawful possession
of firearms is not competent because the offence is not specifically listed in
Schedule 1 of the CPA and, they argue, does not fall within the general definition
of "any offence... the punishment wherefor may be a period of im prisonment
exceeding six months without the option of a fine."
[61] This argument is without merit. Section 3 of the Firearms Control Act 60 of 2000
(“the Firearms Act”) prohibits the possession of a firearm without a licence.
Section 121 of the Firearms Act provides that any person convicted of a
contravention of section 3 may be sentenced to a fine or to imprisonment for a
period not exceeding fifteen years. Schedule 4 of the Firearms Act lists the
maximum sentences for various offences, including fifteen year s for a
contravention of section 3.
[62] The phrase "may be sentenced to a fine or to imprisonment" in section 121 does
not exclude the offence from Schedule 1 of the CPA. The proper interpretation is
that a sentencing court has the power to impose a sentence of imprisonment
exceeding six months without the option of a fine. That is sufficient to bring the
offence within the Schedule 1 definition. As the court a quo correctly held “the
emphasis should not be on the fact that the sentencing court is e mpowered to
impose imprisonment or a fine, but rather the sentencing court 'may' impose a
sentence of imprisonment (of more than six months) without the option of a fine."
[63] This interpretation is consistent with the legislative intention to include serious
offences within Schedule 1, thereby permitting arrest without a warrant in
appropriate circumstances. Unlawful possession of firearms is undoubtedly a
serious offence and it would be anomalous if the legislature intended to exclude
it from the schedule.
[64] The court a quo's finding on this issue is correct and there is no basis to interfere
with it.
22
Arrest founded on a confession by a co-accused
[65] The Appellants argue that the arrest of the Second Appellant, which was based,
in part , on Moeketsi's statements im plicating him, was unlawful because
Moeketsi's statements amounted to an inadmissible confession. They rely on
section 219 of the CPA and a Full Bench decision in this Division in the matter of
Ngwenya v Minister of Police,44 which they submit supports their position.
[66] This argument conflates the distinct legal questions of admissibility of evidence
at trial and the existence of reasonable grounds for suspicion to justify an arrest.
Section 219 of the CPA provides that no confession made by any person shall
be admissible as evidence against another person. The crucial phrase is "as
evidence". The prohibition concerns the use of a confession as evidence in
criminal proceedings against a co -accused. It does not address the use of
information derived from a confession to form a reasonable suspicion to effect
an arrest.
[67] As the court a quo correctly observed “the purpose of an arrest is, inter alia, to
allow for further investigations." It is neither practical nor d esirable to require
arresting officers to ignore information obtained from an arrested person merely
because it might ultimately be inadmissible at trial. The question at the arrest
stage is whether the information gives rise to a reasonable suspicion, not whether
it would be admissible as evidence.
[68] The Appellants' reliance upon S v Maliga45 and S v Gqoki46 does not assist them.
Those cases address the admissibility of confessions at trial, not the formation
of reasonable suspicion for arrest. The safeguards surrounding confessions are
designed to ensure a fair trial, not to restrict police investigations at the arrest
stage.
[69] The court a quo's analysis of stare decisis and its conclusion that the full bench
decision relied upon by the Appellants was rendered per incuriam, is persuasive.
44 (A3128/2017) [2018] ZAGPJHC 610 (29 October 2018).
45 Subparagraph 28.2 ibid; footnote 5 above.
46 Subparagraph 28.2 ibid; footnote 6 above.
23
The Full Bench provided no ratio or reasoning for its finding, and its apparent
reliance on section 219 overlooks the express wording of that section and the
distinction between the arrest stage and the trial stage.
[70] This Court is satisfied that the arrest of the Second Appellant was not rendered
unlawful by virtue of having been based , in part, on information received from
Moeketsi. The arresting officer had reasonable grounds for suspicion, including
Moeketsi's statements implicating the Second Appellant ; the discovery of
firearms at Moeketsi's residence and the Second Appellant’s admission that he
was present at the premises on the relevant date.
Arrest founded on informer evidence
[71] The Appellants submit that the arrests were based on information from an
informer, the content of which was never disclosed, and that this renders the
arrests unlawful. They argue that the arresting officers relied on “double hearsay”
and could not have exercised an independent discretion to arrest. They rely
on Biyela47 for the proposition that hearsay evidence must be credible and
trustworthy.
[72] Whilst it is correct that the police operation was initially prompted by information
from an informer regarding business robberies, the arrests of the Appellants were
not based on that information. The Second Appellant was arrested based on
Moeketsi's statements and the discover y of firearms at his residence. The First
Appellant was arrested based on Maseko's identification and the tracking
evidence. By the time these arrests took place the police had moved beyond the
initial informer information and had obtained direct evidence linking the
Appellants to the offences of business robberies and unlawful possession of
firearms.
[73] The court a quo correctly found that Maseko's spontaneous identification of the
First Appellant at the police station was significant and negated any suggesti on
that the arrests were a contrived affair. This identification was not based on
that the arrests were a contrived affair. This identification was not based on
informer evidence but on Maseko's personal knowledge and recollection.
47 Subparagraph 28.1 ibid; footnote 4 above.
24
[74] Applying the test in Biyela, the information relied upon by the arresting officers
was credible and trustworthy. Moeketsi's statements were made in the presence
of his partner, who did not dispute them. Maseko's identification was
spontaneous and unequivocal. The tracking evidence provided objective
corroboration. There is no merit in the Appellants' conten tion that the arrests
were founded on inadmissible informer evidence.
The requirement of a reasonable suspicion
[75] The Appellants submit that the arresting officers could not have formed a
reasonable suspicion because they relied on inadmissible evidence and failed to
properly investigate the Appellants' explanation that they were at the premises
to borrow money.
[76] The jurisdictional facts r equired for an arrest without a warrant are well -
established. The arresting officer must entertain a suspicion based on
reasonable grounds. The test is objective, that is, would a reasonable person in
the position of the arresting officer have entertained the same suspicion.
[77] In the present matter , the arresting officers had ample grounds for suspicion.
Regarding the Second Appellant, Moeketsi implicated him in the delivery of the
firearms; the firearms were found at Moeketsi's residence and the Second
Appellant admitted being present at the premises. In respect of the First
Appellant, Maseko spontaneously identified him as the driver of the vehicle; the
tracking device confirmed the vehicle was at the premises and the First Appellant
admitted being present. These facts would induce a reasonable person to
suspect that the Appellants had committed the offence of unlawful possession of
firearms.
[78] It must further be recognised that, for purposes of offences relating to the
unlawful possession of firearms, possession is not limited to the physical holding
of the weapon /s. It encompasses both a physical component (corpus), which
may be exercised directly or through intermediaries, and a mental component
may be exercised directly or through intermediaries, and a mental component
(animus), namely the intention to exercise control over the item /s. The fact that
25
the firearms were not found on the Appellants’ persons does not, in itself, negate
the existence of reasonable grounds to suspect their unlawful possession.48
[79] The fact that the Appellants offered an innocent explanation (that they were there
to borrow money) does not negate the existence of a reasonable suspicion. As
the court a quo correctly noted, "it was not for the arresting officer to make
credibility findings." The arresting officer is entitled to act on the informa tion
available, even if the suspect offers an alternative explanation.
[80] The SAPS standing orders regarding arrest as a last resort do not assist the
Appellants. The standing orders are internal guidelines, not rules of law. The
court a quo correctly followed the approach in this Division as articulated by
Goldblatt J in National Commissioner of Police and Another v Jack
Coetzee,49 that there is no rule of law which demands the use of “milder” means
of securing attendance at court. Once the jurisdictional requirements are met and
the discretion is exercised rationally the arrest is lawful.
The application of section 35 of the Constitution
[81] The Appellants rely extensively on section 35 of the Constitution and the concept
of "seepage" of fair trial rights into pre-trial procedures. They argue that the use
of evidence that would be inadmissible at trial to justify an arrest renders the
arrest unlawful. They rely upon Ndawana50 and Wilson51 regarding the rights of
arrested persons.
[82] Whilst it is correc t that section 35 rights apply throughout the criminal justice
process, including pre -trial procedures, the Appellants' argument stretches this
principle too far. The question at the arrest stage is not whether the evidence
would be admissible at trial but whether the arresting officer had a reasonable
suspicion. The two inquiries are distinct and serve different purposes.
48 See S v Adams 1986 (4) SA 882 (A), at 890G -H; S v Jacobs 1989 (1) SA 652 (A) at 656E -F;
S v Cameron 2005 (2) SACR 179 (SCA).
49 Case number 649/11, 16 November 2012 at paragraph [14].
50 Subparagraph 28.8 ibid; footnote 12 above.
51 Subparagraph 28.8 ibid; footnote 13 above.
26
[83] Section 35(5) of the Constitution provides that evidence obtained in a manner
that violates any right in the Bill of Rights must be excl uded if the admission of
that evidence would render the trial unfair or otherwise be detrimental to the
administration of justice. This provision is directed at the admission of evidence
at trial, not at the formation of a reasonable suspicion for arrest.
[84] There is no authority for the proposition that an arrest is unlawful simply because
it was based on information that might ultimately be ruled inadmissible at trial.
The adoption of such a principle would, in the opinion of this Court, paralyse law
enforcement and is not required by the Constitution.
[85] Regarding the Appellants' rights under sections 35(1) and (2) of the Constitution,
the court a quo accepted the arresting officers' evidence that they informed the
Appellants of their rights . There is no basis for this Court to interfere with that
credibility finding.
Captain Fouché's consultation with Moeketsi
[86] The Appellants submit that Captain Fouch e's consultation with Moeketsi, who
was legally represented, without his attorney present, constituted an irregularity
that tainted the entire prosecution. They rely on the principles enunciated
in Masoka.52
[87] This argument is without merit. At the time of Captain Fouch e's consultation,
Moeketsi was a suspect, not a defence witness. The rule against interfering with
defence witnesses, as articulated in Masoka, applies to witnesses who have
been identified a s witnesses for the defence. Moeketsi was not a defence
witness. He was a co-accused who had implicated the Appellants. There was no
improper interference.
[88] In any event, even if there were any irregularit ies in respect of the consultation,
it would not render the Appellants' arrests unlawful. The question is whether the
arresting officers had reasonable grounds for suspicion, not whether this
evidence from Moeketsi was improperly obtained.
evidence from Moeketsi was improperly obtained.
52 Subparagraph 28.6 ibid; footnote 9 above.
27
Malicious prosecution
The conduct of the Prosecutors
[89] The Appellants level extensive criticism at the prosecutors involved in the matter,
alleging that they failed in their duties by failing to consider the admissibility of
evidence; by not investigating the Appellants' defence and by continuing the
prosecution after Maseko recanted. They rely on Menyo,53 Swarts,54 Matsose55
and the prosecutorial guidelines.
[90] This Court is satisfied that t he court a quo's analysis of prosecutorial
responsibility is correct. A prosecutor is entitled to take the contents of the docket
at face value and is not required to make credibility findings or investigate
defences raised by accused persons. As the court a quo stated, "a prosecutor
takes what he or she finds in the docket at face value and cannot be expected to
make any value judgments as to the reliability and credibility of the witnesses'
statements contained in the docket."
[91] Coetzee, the enrolling prosecutor, assessed the docket and found statements
from Maseko implicating both Appellants; statements from the arresting officers
and the tracking report. He was satisfied that there was evidence linking the
Appellants to the offences with which they were charged. There was no duty on
him to investigate the lawfulness of the arrests or to consider the admissibility of
evidence at that stage. The decisions relied upon by the Appellants do not
impose such a duty. Menyo and Swarts emphasise the need for a prima facie
case based on admissible evidence but do not require the prosecutor to conduct
an inquiry into admissibility at the enrolment stage.
[92] Regarding the continuation of the prosecution after Maseko recanted , the court
a quo correctly held that this did not render the pros ecution unlawful. It was not
53 Subparagraph 28.7 ibid; footnote 10 above.
54 Subparagraph 28.7 ibid; footnote 11 above.
55 Subparagraph 28.5 ibid; footnote 8 above.
28
irrational or arbitrary to continue the prosecution. Maseko’s evidence was not the
only evidence available to the State at trial.
[93] The fact that Maseko was ultimately not called as a witness at the criminal trial
does not render the earlier decisions to prosecute unlawful. A prosecution must
be assessed on the basis of the information available at the time each decision
is made, not with the benefit of hindsight.
[94] Further, the Appellants' reliance on the prosecutorial guidelines and the Code of
Conduct does not assist them. These guidelines, whilst instructive, do not impose
legal obligations the breach of which automatically gives rise to delictual liability.
The question is whether the prosecutors acted reasonably and in good faith. The
evidence supports a finding that they did.
[95] To succeed in a claim for malicious prosecution the Appellants must prove that
the Respondents acted without reasonable and probable cause and with malice
(animus iniuriandi). The evidence does not support such a finding.
[96] The prosecutors had reasonable and probable cause to institute and then to
continue with the prosecution. The docket c ontained sworn statements
implicating the Appellants. The fact that Maseko later recanted does not mean
that the initial decision to prosecute was unreasonable. The prosecutors were
entitled to proceed on the basis of the information before them.
[97] There is no evidence establishing malice or animus iniuriandi on the part of any
of the Respondents’ officials. The Appellants’ contention that Captain Fouche
withheld their version from the prosecutors finds no support in the record. Captain
Fouche testified that he did not deliberately withhold any information, and his
evidence was accepted by the court a quo. There is no basis to interfere with that
finding.
Cumulative effect of alleged irregularities
[98] The Appellants submit that the cumulative effect of the vario us irregularities
[98] The Appellants submit that the cumulative effect of the vario us irregularities
should lead to a finding of liability. Whilst it is correct that a combination of factors
may, in appropriate circumstances, lead to a finding of unlawfulness, the alleged
29
irregularities in this case, whether considered individually or cumulatively, do not
establish that the arrests, detentions or prosecutions were unlawful, or malicious.
[99] The arresting officers had reasonable grounds for suspicion. The prosecutors
acted reasonably based on the information before them. The court ordered the
First Appellant’s detention after proper consideration of his first bail application.
After Maseko recanted the First Appellant was released on bail. The fact that the
criminal trial ended in a discharge does not , in itself, render the prior decisions
unlawful.
Conclusion
[100] For all of the reasons set out above, this Court is satisfied that the court a quo
correctly dismissed the Appellants' claims. The arrests and subsequent
detentions were lawful and the prosecution was not malicious.
[101] An appeal court will not interfere with the factual findings of a trial court unless
they are shown to be demonstrably wrong. The Appellants have failed to
establish any basis for interfering with the court a quo's factual findings or its
application of the correct principles of law to those facts.
[102] The appeal must therefore be dismissed.
Costs
[103] The Respondents seek costs on the party and party scale, such to include the
costs of the application for leave to appeal in the court a quo; the petition to the
SCA and the costs of this appeal (including the costs of the condonation
application).
[104] There is no reason to depart from the general rule that costs should follow the
result. The Appellants have been unsuccessful in their appeal and should bear
the Respondents' costs.
[105] The order of the S CA dated 8 August 2024 provided that the costs of the
application for leave to appeal in that court and the court a quo are costs in the
31
Date of Hearing: 26 November 2025
Date of Judgment: 18 March 2026
Appearances
On behalf of the Applicant: Adv G Kerr-Phillips and Adv J M van Rooyen
Instructed by: Wits Law Clinic
Email: peter.jordi@wits.ac.za
On behalf of the Respondents: Adv E Mahlangu
Instructed by: The State Attorney, Johannesburg
Email: kmaile@justice.gov.za