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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.:1391/2019
In the matter between:
MIHLE NTOBOLE Plaintiff
and
NATIONAL DIRECTOR FOR PUBLIC Defendant
PROSECUTIONS
JUDGMENT
ZONO AJ:
Introduction
[1] The plaintiff instituted action proceedings against the defendant for damages
arising out of the alleged malicious prosecution. The defendant is sued on the
basis that he is vicarious liable for the wrongs of the members of the
prosecuting authority acting within the course and scope of their employment
with him1. Pursuant to the arrest and detention by the member of South African
Police Service, the plaintiff was caused to appear in court on 27 th December
2017 facing the charges rape, ki dnapping and assault with intent to do grievous
bodily harm. Sequel to the first appearance, a number of postponements ensued
until the 12th April 2018 when the charges against the plaintiff were withdrawn.
[2] Plaintiff averred that, at all material time s the Public Prosecutor concerned
was in possession of the police docket and was aware that there was no
evidence that would lead a reasonable person to conclude that the plaintiff
committed the offences he was facing when he took a decision to prosecute. The
prosecution was carried out with malice, with intent to injure the dignity and
personality of the plaintiff, without reasonable and probable cause and without
lawful or justifiable excuse. As a result of the prosecution the plaintiff suffered
damages.
[3] Thereanent to this case, the defendant averred that a case of kidnapping and
rape was opened against the plaintiff and there was evidence implicating him to
the case and therefore the enrolment of the plaintiff’s case was lawful and
justifiable and was without malice. It is also averred that the withdrawal of the
charges on 12th April 2017 was in terms of the provisions of section 6(1) of the
Criminal Procedure Act 51 of 1977 as amended.
[4] During the trial of this matter, it was agreed that the matter proceeds both on
merits and quantum and a ruling was made to that effect. The plaintiff accepted
his duty to begin and onus of proof. The plaintiff himself testified and was the
1 Section 2 of State Liability Act No 14 of 2011
sole witness in his case and the Public Prosecutor, Mr Mbaleni testifie d on
behalf of the defendant.
[5] The plaintiff testified that he was charged with an offence of rape,
kidnapping, and assault. He appeared in the reception court on 27 th December
2017 where he was arraigned for the aforementioned offences. The matter was
postponed for several occasions until when it was withdrawn on 12 th April
2018. He testified that there was no evidence to support the charges he was
facing. The prosecution merely relied on the word or mere say so of the victim
to prosecute him. The pros ecution had no reasonable ground to believe that the
plaintiff committed the offences.
[6] During cross examination the plaintiff did not dispute that the Public
Prosecutor perused the statement of the victim, A[...] M[...] and that of the
complainant, her father D[...] M[...] that implicated him to the charge of rape
and kidnapping. He categorically stated that he has a problem with the conduct
of Public Prosecutor charging him based only on the statement of A[...]. He
added that he was charged without any reasonable ground and he tried to inform
the Public Prosecutor about his side of the story, but he did not listen. He could
not remember if he did or did not interact with the Public Prosecutor when he
was before court, but he was certain that he told everyone who came to him that
he was innocent. It was also put to him that the Public Prosecutor is not
permitted to talk with him as an accused in the criminal case.
[7] The defendant called the evidence of Sicelo Siviwe Mbaleki who is a Public
Prosecutor who took a decision to prosecute the plaintiff and enrolled the matter
for plaintiff’s prosecution. He testified that he dealt with the plaintiff on 27 th
December 2017 during his first appearance in court. He stated that he relied on
the statement of the victim, A[...] and does not agree with plaintiff’s testimony
that he was not supposed to have been charged. He went on testifying about
what was contained in the victim’s statement.
[8] In the statement it is stated that the victim knew the p laintiff as they were
from the same village. The victim was attending a night vigil at another
homestead and when she was next to the gate of the said homestead she came
across the plaintiff and Mosuli. Plaintiff called her and she refused to give him
attention and told him that she was going to the night vigil. Plaintiff dragged her
against her will into the dark place, which act amounted to kidnapping. At the
dark place the plaintiff kicked her on the legs and she fell down. When she was
on the ground, both plaintiff and Mosuli undressed her everything including her
underwear. Mosuli was the first one to rape her. When he finished and getting
up, the victim struggled to free herself up and attempted to escape where the
plaintiff chased her down and caught her and kicked her on the legs causing her
to fall down. As she was already naked, the plaintiff raped her. There was also
victim’s father’s statement (complainant). He concluded that there was a prima
facie case of rape. He then enrolled the matter.
[9]The Public Prosecutor however testified that there was another prosecutor,
whose name was not disclosed, who sat in the office solely to read the dockets
and take decisions whether or not to prosecute. That Prosecutor does not go to
court; he only hand ove r the docket to the one who is in court. That Prosecutor
took the decision to prosecute the plaintiff. He testified that he is the Public
Prosecutor who was in court and he received the docket from the other
prosecutor and perused same, and he concurred wi th the decision to prosecute.
However, during the questions by the court he testified that he is the altimate
decision maker and it is his decision and conduct that must be looked at and
scrutinized.
[10] The Public Prosecutor disputed that plaintiff’s de fence was not considered
when taking a decision to prosecute. He weighed both sides or version and
found the complainant’s story weighty when compared with the plaintiff’s
story. In the same vein, he testified that he had no time to speak to the plaintiff
but considered his warning statement, that is where the Public Prosecutor sees
accused side of the story. He testified and disputed that he had intention to
injure and did not contemplate that charges would be withdrawn.
[11] In cross examination the Publ ic Prosecutor conceded that there is a
possibility that he might not have read the entire docket as he received the
docket when the court was already in session. This bellies his version that he
considered plaintiff’s defence when he took the decision to p rosecute. He did
not recall how big the docket was. He was not certain if he read the statement of
N[...]. He doubted having read N[...]’s statement that was taken on 25 th
December 2017 before the docket served before him, ostensibly on 27 th
December 2025. The Public Prosecutors, in the final analysis could not dispute
that he did not thoroughly read the docket contents as he was already in court
when he received same. He nonetheless enrolled the matter.
[12] The Public Prosecutor was referred to the statement of N[...] where the
victim reported that she was nearly raped by Mosuli and the plaintiff as opposed
to being raped. That part of the statement was juxtaposed with victim’s
statement where she said she was raped by the plaintiff. He co uld not reconcile
or clarify this obvious contradiction in the statements contained in the docket. In
a nutshell he could not shed light as to how he applied himself to the
contradictions. During the questions by the court the Public Prosecutor testified
that when conflict arose from the statements contained in the docket the
complainant generally should be confronted with that before the enrolment of
the matter or before the suspect is arraigned in court. That did not happen in the
case of the plaintiff. The plaintiff was arraigned in court and the matter was
enrolled notwithstanding the apparent material contradictions patent in the
statements. He clarified this further when Mr Calaza asked him, that serious
contradictions which are such that there is no case against the suspect, the
Public Prosecutor should query the docket and not enrol the matter.
Unfortunately, that too did not happen in this case. He however accepted that
there were material contradictions in the docket.
[13] A further contradiction was spotted during cross examination about the
place where the victim was allegedly raped. The victim states in her statement
that she was dragged and raped in a dark place whereas the statement by D[...]
M[...], the compla inant reveals that the plaintiff and Mosuli forcefully took the
victim to another home and raped her.
[14] In a nutshell, the Public Prosecutor testified that he had the complainant’s
evidence when he enrolled the matter. Between the 26 th February 2018, when
the plaintiff was released on bail, and 12 th April 2018 when the charges against
the plaintiff were withdrawn, the Public Prosecutor had no new evidence other
than complainant’s evidence. From the onset, it is not clear what is meant by
complainant’s evidence. Could it mean complainant’s statement? That is highly
possibly because the docket does not contain only complainant’s evidence. In
this case we have heard that suspects warning statements were in the docket and
that is not complainant’s evidence.
Discussion and Analysis
[15] Malicious proceedings and prosecution may take the form of abuse of
criminal or civil proceedings. Malicious prosecution is an abuse of the process
of the court by intentionally and wrongfully setting the law in motion o n a
criminal charge2. There must be a prosecution before the plaintiff can bring an
action for malicious prosecution 3. A person may bring an action for malicious
prosecution if he is charged. However, there are certain requisites that must be
satisfied for a successful claim of malicious prosecution. In order to succeed in
an action for malicious prosecution the plaintiff must show the following:
“(a) that the defendant instituted or instigated the proceedings,
(b) that the defendant acted intentionally or with animus iniuriandi,
(c) that the defendant acted without reasonable and probable
cause,
(d) that the defendant was actuated by an improper motive or malice,
(e) that the proceedings terminated in the plaintiff’s favour, and
(f) that the plaintiff suffered damage.”
[16] It is common cause both in the pleadings and evidence that the defendant
set the law in motion by instituting or instigating the criminal proceedings
against plaintiff. Mr Mbaleki, the Public Prosecutor who g ave evidence on
behalf of the defendant testified that he took the decision to prosecute the
plaintiff. That accords with the provisions of section 20(1) of the NPA Act 4
which provides thus:
2 Ledermen v Moharal Investments (Pty) Ltd 1969(1) SA 297(A); 1969 (1) SA 190 at 196
3 LAWSA, 2ND edition, V olume 15 page 195 Para 316
4 National Prosecuting Authority Act 32 of 1998; section 179 (2) of the Constitution
“(1) The power, as contemplated in section 179 (2) and all oth er relevant
sections of the Constitution, to
(a) institute and conduct criminal proceedings on behalf of the State;
(b) carry out any necessary functions incidental to instituting and conducting
such criminal proceedings;
(c) discontinue criminal proceedings;
Vests in the Prosecuting Authority shall, for all purposes, be exercised on
behalf of the Republic.”
Animus Iniurandi
[17] Intention to injure or animus iniuriandi is one of the requirements that
needs to be satisfied. A person who lays a criminal complaint against another
intends to injure him or her 5. This transcends to setting the law in motion.
Similarly, the exercise of a power to institute criminal proceedings on behalf of
the state against any person 6 is with the tentative intention for suspect to be
convicted and ultimately sentenced. Tentative in the sense that the evidence at
the disposal of the Public Prosecutor raises a possibility of convicti on and
sentence, subject to the evidence led during proceedings in court. Conviction
with its consequences 7 is injurious without blameworthiness. It goes without
saying that the sentencing of the perpetrator is injurious as it sometimes steals
the liber ty and other valuable amenities of a person. The injury in those
circumstances is retributive and not wrongful. Those kinds of injuries are
justified in law. However, an immediate injury that is incidental to the
institution of criminal proceedings is the uncertainty, anxiety and other
immotional hardships one suffers when he or she is facing charges in the
criminal proceedings. When he/she has to attend court he loses a valuable asset
called time for himself and his personal affairs. His convinience goes away. His
5 LAWSA, Page 198, Para 321
6 Section 20(1) of National Prosecuting Authority Act 32 of 1998
7 For example, retention of finger prints with criminal record center which has other consequences, like
difficulty to easily secure lucrative work opportunities
image to the society changed. People started to doubt his integrity. The list is
endless. In a nutshell, when criminal proceedings are instituted, the Public
Prosecutor does that with tentative intention to secure conviction, which is
inevitably injurious, and ultimately a suitable sentence. The fact that the
infliction or occurrence of the intended injury is justified in law or is not
unlawful is neither here nor there. The intention at this level is satisfied only by
the common cause facts that the plaintiff faced criminal charges in a court of
law. In the light of the fact that there must be reasonable prospect of a
conviction before the Prosecutor can enrol the matter or when he enrols the
matter, he obviously has that tentative or provisional intention to secure
conviction.
[18] However, in Moaki v Reckett and Colman (Africa Ltd) and another8 it was
held that:
“Where relief is claimed by this actio the plaintiff must allege and prove that
the defendant intended to injure (either dolus dir ectus or indirectus). Save to the
extent that it might afford evidence of the defendant’ s true intention or might
possibly be taken into account in fixing the quantum of damages, the motive of
the defendant is not of any legal relevance.’
[19] Animus i njuriandi includes not only the intention to injure, but also
consciousness of wrongfulness. In this regard anumus injuriandi (intention)
means that the defendant directed his will to prosecuting the plaintiff (and this
infringing his personality), in the awareness that reasonable grounds for the
prosecution were (possibly) absent, in other words, that his conduct was
(possible) wrongful (consciousness of wrongfulness). It follows from this that
the defendant will go free where reasonable grounds for the pr osecution were
lacking, but the defendant honestly believed that the plaintiff was guilty. In such
8 1968 (3) SA 98 (A) at 104 A-B
a case the second element of dolus, namely of consciousness of wrongfulness,
and therefore animus injuriandi will be lacking. His mistake therefore excluded
the existence of animus injuriandi. A defendant must not only have been aware
of what he or she was doing in instituting or initiating the prosecution, but must
atleast have foreseen the possibility that he or she was acting wrongfully, but
nevertheless co ntinued to act, reckless as to the consequences of his or her
conduct (dolus eventualis)9. When the Public Prosecutor was selectively reading
the contents of the docket, he was aware of the wrongfulness of his conduct, and
he reconciled with the possibility that he must have been missing crucial
information that would otherwise influence his decision. His conduct complied
with all the e lements of “ animus injuriandi”. The Public Prosecutor could not
justify his selective reading of the docket contents. He therefore knew that what
he was doing was wrongful but continued to ignore other statements contained
in the docket. That proves intent ion to injure whoever was affected by his
decision.
Absence of reasonable and probable cause
[20] Reasonable and probable cause, in the context of a claim for malicious
prosecution, means an honest belief founded on reasonable grounds that the
institution of proceedings is justified 10. The test for absence of reasonable and
probable cause is both objective and subjective 11. It is objective in that when it
is alleged that a defendant had no reasonable cause for prosecution it means that
he or she did not h ave such information as would lead a reasonable person to
conclude that the plaintiff had probably been guilty of the offence charged.12
9 The Minister of justice and Constitutional Development v Moleko 2008 (3) ALL SA 47 (SCA) Para 63-64
10 Minister of justice and Constitutional Development v Moleko 2008 (3) SA 47 SCA Para 20
11 Prinsloo and another v Newtman 1975(1) SA 481 (A) at 492 C-F and 495 A
11 Prinsloo and another v Newtman 1975(1) SA 481 (A) at 492 C-F and 495 A
12 Hassien v Minister of police for the Republic of South Africa and others (612/2019) [2025] ZAECMHC
120 (18 November 2025) Para 52
[21] In Lubaxa13
“[19] The right to be discharged at that stage of the trial does not necessarily arise,
in my view, from considerations relating to the burden of proof (or its concomitant, the
presumption of innocence) or the right of silence or the right not to testify, but
arguably from a consideration that is of more general application. Clearly a person
ought not to be prosecuted in the absence of a minimum of evidence upon which he might
be convicted, merely in the expectation that at some stage he might incriminat e himself.
That is recognised by the common law principle that there should be “reasonable and
probable” cause to believe that the accused is guilty of an offence before a
prosecution is initiated ( Beckenstrater v Rottcher and Theunissen 1955(1) SA 129 (A) at
135C-E), and the constitutional protection afforded to dignity and personal freedom (s
10 and s 12) seems to reinforce it. It ought to follow that if a prosecution is not to
commenced without that minimum of evidence, so too should it cease when t he
evidence finally falls below that threshold. That will pre -eminently be so where the
prosecution has exhausted the evidence and a conviction is no longer possible except by
self- incrimination. A fair trial, in my view, would at that stage be stopped, for it threatens
thereafter to infringe other constitutional rights protected by s 10 and s 12”.
[22] Thereanent to the objective test and the kind of information that was at the
disposal of the Public Prosecutor on 27 th December 2017, the Public Prosecutor
testified without equivocation that he confined himself to the statement of the
victim, A[...] and the complainant, his father D[...] M[...]. Those statements
implicated the plaintiff in the commission of an offe nce of rape. The Public
Prosecutor limited himself only to the two statements when there were many
other statements and information contained in the docket. What seemingly
other statements and information contained in the docket. What seemingly
attracted and influenced the decision of the Public Prosecutor is paragraph 3 and
4 of A[...], victim’s statement, which reads as follows:
“Whilst I and together with them entered in the gate, I came across
with too known males known as Mihle Ntobole and mesuli Phama. Mihle
Ntobela called me and I told him that he must no call because I was going to
attend a funeral service and its where he dragged me with my jersey out of the
yard. I cried for help and I told him that he must stop dragging me. He
dragged me on the street up until we reached on the dark place and its where he
kicked my legs with booted feet and I end up lying with my back on the ground and
both of them forcefully stripped off my shoes, trouser and underwear panty.
Mihle Ntobole Kicked my legs with booted feet and end up fell on the ground
13 S v Lubaxa 2001 (2) SACR 703 (SCA) Para 19
with my back. Then A/male Mesuli is the first person to stripp off his trouser
and under wear pant and kneeled on top of me and inserted his penis on my
vagina and he moved up and down on top of me until his penis ejaculates.
4
When he finished raping me I kicked A/male Mesuli Phama with my legs and
its where I got a chance to ran away from there and Mihle Ntobola chased me
and end up caught on the same spot and he kicked me with my legs and I also
end up lying with my back by that time he chased me, I was already naked.
He kneeled on top of me and he also stripped of his trouser and under wear
pant and drew up his penis and inserted it on my vagina. He moved up and
down on top of me up until his penis ejaculates”. (sic)
[23] Complanant’s father D[...] M[...] states in his statement that after having
been told by his brother that his daughter was raped, he then enquired from his
daughter who advised him that as she was attending funeral service and when
she was next to the gate of the homestead where the funeral service was she was
with Ongezwa. They came across A/ males Mihle Ntobole and Mosuli Phama
who forcefully took her to another home and raped her without her consent. It is
only these statements that attracted Public Prosecutor’s interest. The police
docket revealed that on the 25 th December 2017 other statements were deposed
to by the following persons.; Mesuli Aphelele Phama, the plaintiff, Alungile
Konono Magula and N[...] M[...] . The Public Prosecutors elected not to read
these statements on a mere basis that when he received the docket from another
prosecutor, he was already in court. He nonetheless took a decision to enrol the
matter and prosecute the plaintiff.
[24] At an objective leve l, the enquiry should start at the nature of the entire
information placed before the Public Prosecutor for him to take a decision in
terms of section 20(1)(c) and (b) of the NPA Act 32 of 1998. The Public
terms of section 20(1)(c) and (b) of the NPA Act 32 of 1998. The Public
Prosecutor confidently testified in chief to say the statement of A[...], and his
father established a prima facie case. He said nothing about the existence of
other statements that were in the docket. It is only during cross examination
that he conceded that there were other statements that were in the docket
which he possibly did not read. His possible failure to read other
statements is premised merely on the fact that when he received the docket,
he was already in court with a load of court cases. That reason or explanation
leaves much to be desired and is accordingly unacceptable.
[25] This explanation is seemingly suggestive of the fact that the Public
Prosecutor had no sufficient time to properly, sufficiently and thoroughly read
the docket contents, but nonetheless pressed forward to take a decision that has
serious implications not only on the liberty of the plaintiff, but also on his
image, esteem and sentiments. Two questions arise from his explanation
which remained to be answered. If he felt that he suffered serious time
constraints to justly deal with the docket at the time, it remains unclear why he
rushed himself to take a decision which had such serious implications. Why the
decision was taken in such a haste? That conduct was highly irrational and
unreasonable in the circumstance s. He should have provided himself with
sufficient time to read that docket so as to enable him to take a just decision.
The second question is alternative to the first one: What prevented the Public
Prosecutor from passing the docket or assigning it to an other Prosecutor
especially the one from whom it originally came to take the decision.
[26] The paucity of answers to those questions points to the fact that the Public
Prosecutor did not only act arbitrary and capricious, he also acted irrationally
and unreasonably. The nature of the decision required to be taken required
proper application not only of oneself but of an undivided mind to every
detail contained in the docket. I therefore conclude that a decision that
culminates from an arbitrary, irra tional, unreasonable and capricious process
can hardly be based on reasonable grounds. Public Prosecutor’s failure to fairly
and objectively consider the docket contents ipso facto renders the decision, that
is the outcome of that defective and unreasonabl e process, arbitrary. To rule
otherwise would be inimical to the rule of law. The rule of law does not permit
an organ of state to reach what may turn out to be correct outcome by any
means. On the contrary, the rule of law obliges an organ of state to use the
correct legal process14.
[27] In Patel15 the following dictum was made:
“[4.2.7] In my view, the duty of a prosecutor is to carefully consider all the
versions of the witnesses, statements and determine whether the
contradictions therein are material or not before a decision to
prosecute is made.
………….
[25] The second defendant should have been satisfied that there was
reasonable and probable cause not just a prima facie case against plaintiff. The
prosecutor should interrogate the docket in its entirety and apply his/her mind
properly before taking a decision. Again, if I accept the version of Ms Nxele, it
implies that Advocate Noko was not a credible witness and sh e fabricated the
evidence. The defence failed to call the officer who commissioned Ms Nxele's
statement, so that he could testify if the complainant understood the content of her
statement and confirm the truthfulness thereof.
………….
[27] A prose cutor should assess whether there is sufficient and admissible
evidence to provide a reasonable prospect of a successful
prosecutor(sic), otherwise the prosecution should not commence…”
[28] It requires emphasis that the Public Prosecutor is not obliged to take a
decision, at the first available time the docket is placed before him or her. The
provisions of section 20(1)(b) of the NPA Act give a clear expression and effect
to the provisions of section 20(1)(a) which provide for power to institute and
14 Chief Lesapo v North West Agricultural Bank and another 2000 (1) SA 409 (CC); 1999 (12) BCLR 1420
CC at Para 17-18; Head of Department, Department of Education, Free stse Province v Welkom High School
and another; Head of Department of Education Free State Province v Harmony High S chool and Another
2013 (9) BCLR 989 (CC); 2014 (2) SA 228 (CC) Para 86
15 Patel v National Director of Public Prosecutions and others 2018 (2) SCAR 420 (KZN) Paras 4.2.7, 25 and
27
conduct criminal proceedings. The alternative power statutorily prescribed
by Section 20(1)(b) of the Act provides:
“(1) The power, as contemplated in section 179 (2) and all other relevant
sections of the Constitution, to
(a)……
(b) carry out any necessary functions incidental to instituting and
conducting such criminal proceedings….
vests in the prosecuting authority and shall, for all purposes, be
exercised on behalf of the Republic.
[29] Public Prosecutor’s powers in terms of section 20(1) of the NPA Act
includes those which are reasonably necessary or required to give effect to and
which are r easonably or properly ancillary or incidental to the express
powers that are granted. 16 Implied powers cannot simply be determined with
reference to the language of the empowering provisions; the rest of the
provision of the enactment, the purpose of th e provisions and the Act, the
constitution (especially the bill of right) and the broader social and economic
context, also to be taken into account in determining the scope of the powers
of a public authority 17. The above -mentioned exposition is compatible with the
maxim of interpretation “Ex Consequintibus” meaning inter alia that” “where a
provision permits a certain consequence, it permits, by implication, everything
reasonably necessary- for and at the same time proscribes obstruction to - the
achievement of the authorised consequence.”18
[30] Proper exercise of section 20(1) powers includes thorough and holistic
reading and understanding of the docket placed before a Prosecutor to take a
16 Administrator Transvaal v Brydon 1993 (3) SA 1 (A) at 9C-D. Moleach v University of Transkei and others
1998 (2) SA 522 (TK) 538
17 Minister of public Works and others v Kyalami Ridge Environment Association and others 2001(3) SA
1151 (CC) Paras 33-51I
18 LAWSA, V ol 25 , 2nd Ed Part 1 Page 389 Para 360
decision. Anything falling short of the entire and complete reading and
understanding of the docket is antithetical to the provisions of section 20(1) of
the Act. State functionaries, no matter how well - intentioned, may only do what
the law empowers them to do. That is the essence of dispensation and lega lity,
the bedrock of our constitutional dispensation, and has long been enshrined in
our law 19.Section 20(1) proscribes, by necessary implications, the taking of a
decision to prosecute without thorough reading of the docket.
[31] What exacerbates Public Prosecutor’s unjustified failure to read four
statements referred to above is their respective contents which expose serious
and material contradictions with the statement of A[...], who was the alleged
victim. While other four statements corroborate each other about what happened
at the relevant times on that day 20, I direct my attention for present purposes to
the relevant parts of the statement of N[...] M[...]. She had the following to say:
2.
“ On Saturday 2017 .12.23 at about 09:00 I was at my homestead
with A[...] M[...]. A[...] M[...] arrived. A[...]
noticed that A[...] had swollen eyes. I looked at her and asked
what really happened. When I asked her she cried and I continued
asking her. She said she was raped by Mihle Ntobole and Mesuli
Phama at Mesuli’s homestead. She said they dragged her but I do
not know where she was when they dragged her.
3.
I questioned her further, asking whether they did really had sexual
intercourse with her. She then denied saying they nearly raped her. She
said they undressed her clothes, of which she had no knowledge of
whereabouts of her panty, trouser and shoes. I asked whether she was
drunk when she was raped. She admitted that she was drunk but asked
19 AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and another 2007 (1) SA 343 (CC);
2006 (11) BCLR 1255 (CC) Para 68. Head of Department, Department of Education, Free state Province v
Welkom High School and another; Head of Department of Education Free State Province v Harmony
High School and Another 2013 (9) BCLR 989 (CC); 2014 (2) SA 228 (CC) Para 1
20 Andisiwe was highly drunk and was complaining and crying to the plaintiff for his refusal to be initiate’s
attendant and mentor and that they left her without having done anything to her.
me not to tell her father.” (sic)
[32] It is apparent from N[...]’s statement that A[...] inexplicably contradicted
herself when narrating the ordeal. At first instance she gave a narrative that she
was raped at Mesuli’s homestead 21. When her narration was found to be
unclear about the place where she was raped, N[...] probed further and elicited a
different contradictory answer that she was nearly raped. No explanation seems
to have been proffered for the mutually destructive vers ions given to N[...] by
A[...]. The state of A[...] drunkenness is not an insignificant matter as it affects
one’s senses and it talks to the impairment of one’s mind. That is conveniently
not stated in A[...]’s statement. According to N[...]’s statement,A[...] sought to
conceal her state of drunkenness especially from her father hence her father’s
statement does not have anything about her state of drunkenness.
[33] Another discrepancy that would be revealed only by thorough and unbiased
reading of the docket is that, in her statement she states that after the plaintiff
finished raping, Konono arrived and told the plaintiff not to drag her and that is
when she got a chance to escape from the incident. Fortunately for the Public
Prosecutor, Alungile Konono Magula made his statement on 25 th December
2017, where he sets out his account of the relevant events on that day. Konono
narrates a completely different story and say nothing about the plaintiff
dragging A[...]. In fact, Konon o’s statement is exculpatory in favour of the
plaintiff as it is clearly far from implicating him on any wrong doing. Konono
plainly attests to the fact that he and the plaintiff left victim, A[...] at Mesuli’s
homestead looking down as Mesuli was making a call outside. That is yet
another serious contradicting obtaining in the docket.
21 It must be recalled that all other three statements are ad idem that nothing happened at Mesuli’s homestead
until they parted with Andisiwe.
[34] A[...] states in her statement that she got a chance to run to Ayakha’s home,
from Ayakha’s home she went to her home where she reported the incident to
her father. Nothing A[...] is saying in her statement about reporting her ordeal to
N[...] in the same morning. A[...] allegedly reported the incident to N[...] at
about 08:00 am, exactly the same time her father was arriving from
Johannesburg. A[...] might probably have reported the incident first to N[...].
The list of unclear narrations, discrepancies and contradictions is endless.
[35] With these unaccounted for discrepancies, mutually destructive versions or
stories and corroborated case 22in favour of plaintiff, could it therefore be said
that the Public Prosecutor, when setting the law in motion, had such information
as would lead a reasonable person to conclude that the plaintiff had probably
been guilty of the offence charge. Clearly not. He clearly acted without
reasonable and probable cause.
[36] Public Prosecutor’s choice of selecting only those statements that favoured
the case of the victim or complainant is something to worry about. That conduct
had a semblance of prejudice to those imp licated. The conduct is clearly
unconstitutional and unapologetically antithetical to the provisions of section
179(1) of the constitution which require all members of NPA to perform their
duties and exercise their power without fear, favour or prejudice. It is basic
principle of our law that a court can never lend its aid to the enforcement of an
illegal act23. It would be a promotion of a clearly unconstitutional conduct and
an act of being complicit to a clear unlawful conduct to find nothing wrong in
22 At the level of statements.
23 Cool Ideas 1186 CC V Hubbard and another 2014(4) SA 474 (CC); 2014 (8) BCLR 869 (CC)Para 77
the conduct of Public Prosecutor. To find in his favour would amount to
awarding him for his unconstitutional conduct.
[37] The prosecution policy was determined and issued in terms of section 21(1)
of the NPA Act. The prosecution policy revised on June 2 013 is the one that is
effective todate. Section 2 of the prosecution policy deals with the purpose of
the policy provisions and it provides in relevant parts as follows:
“The aim of this prosecution policy is to set out, with due
regard to the law, the way in which the NPA and individual
prosecutors should exercise their discretion. The purpose of
this prosecution policy is therefore to guide prosecutors in
the way they should exercise their powers, carry out their
duties and perform their functions. This will serve to make
the prosecution process more fair, transparent, consistent and predictable”
Facts of this case demonstrate that the process leading up to the decision to
prosecute was clearly not fair to the plaintiff.
[38] Section 3 of the prosecution policy provides for the role of prosecutors. In
relevant parts it provides thus:
“… They should ensure that the interests of victims and witnesses are
promoted, without negating their obligation to act in a balanced and honest
manner…. A member of the NPA must serve impartially and exercise, carry
out or perform his or her powers, duties and functions in good faith and without
fear, favour or prejudice and subject only to the constitution and the law.”
Selective consideration and reading of the docket epitomized partial and
biased exercise of powers, performance of duties and functions, and the only
inescapable conclusion to that is, such was not done in good faith.
[39] Section 3A of the Prosecution Policy provides inter alia that:
“The process of establishing whether or not to prosecute usually starts when
the police present a docket to the prosecutor. This often happens after the
the police present a docket to the prosecutor. This often happens after the
suspect has been arrested. The case needs to be studied to make sure that it is
properly investigated. The prosecutor must consider whether to—
• request the police to investigate the case further;
• institute a prosecution;
• enter into a plea or sentence agreement; decline to prosecute
and to opt for pre -trial diversion or other non -criminal
resolution;
• or decline to prosecute without taking any other action\
The decision whether or not to prosecute must be taken with care , because it
may have profound consequences for victims, witnesses, accused persons and
their families. A wrong decision may also undermine the community’s
confidence in the prosecution system and the criminal justice system as a
whole. Resources should not be wasted pursuing inappropriate cases, but must be
used to act vigorously in those cases worthy of prosecution. In deciding whether or
not to institute criminal proceedings against an accused person, prosecutors
must assess whether there is sufficient and admissible evidence to provide a
reasonable prospect of a successful prosecution. There must indeed be a
reasonable prospect of a conviction, otherwise the prosecution should not be
commenced or continued. This assessment may be di fficult, because it is never
certain whether or not a prosecution will succeed. In borderline cases,
prosecutors should probe deeper than the surface of written statements. Where
the prospects of success are difficult to assess, prosecutors must con sult with
prospective witnesses in order to evaluate their reliability. The version or the
defence of an accused person must also be considered, before a decision is
made.”
With all of this I come to a conclusion that the Public Prosecutor set the la w in
motion without reasonable and probable cause, as the docket was not entirely
studied, plaintiff’s defence/statement and other relevant statements were not
considered.
Malice
[40] This now leads me to a requirement of malice. Mr Calaza submitted
strenuously that it is impermissible to use an evidence used to come to a
strenuously that it is impermissible to use an evidence used to come to a
conclusion that there was absence of reasonable and probable cause to support a
finding that there was a malice in setting the law in motion. I do not entirely
agree. It depends on the fa cts of the case and nature of the evidence led. In law,
context is everything 24. Mr Calaza, in developing this point, strongly submitted
that malice cannot be inferred on the evidence of Public Prosecutor’s failure to
24 Minister of Home Affairs and others v Scalabrini Centre Cape Town and others 2013 (6) SA 421 (SCA);
2013 (4) ALL SA 571 SCA Para 89
read the entire docket. No authority w as submitted for that proposition. One
needs an evidence pointing out clearly that there was malice, so it was
submitted. In what follows I deal with the aforesaid submissions.
[41] Malice means either absence of an honest belief in the guilt of the accu sed
or an improper or indirect motive. If either of these is missing there can be no
reasonable and probable cause. Were the subjective element of absence of an
honest belief in the guilt of the accused is present it is relevant both to absence
of reasonab le and probable cause and malice. Absence of reasonable and
probable cause is only a circumstance from which malice may be deduced,
provided the other circumstance of the case concur or are not inconsistent with
such a deduction 25. I set out to demonstrate that the circumstances of this case
concur and are also consistent with a deduction of malice. An element of malice
feed of with the element of absence of reasonable and probable cause.
[42] At the risk of repetition, the unjustified selective reading of the contents of
the docket is unequivocally arbitrary, irrational and unreasonable. That was
done only with a particular purpose to understand only what the victim and
complainant’s case was about. That was done in total disregard of plaintiff’s
interest and his side of the story. The Public Prosecutor was clearly disinterested
on anything that would negate what the complainant and the victim were
saying. His conduct was clearly partial and was embarked on with clear
intention to prejudice the plaintiff. It is a constitutional imperative that members
of NPA must serve impartially and perform their duties in good faith without
favour or prejudice. Oxford Dictionary defines the word good faith to mean
25 LAWSA, Vol 15, 2nd edition, page 209-210 Para 342
“honesty or sincerity of intention”. Sincerity means “the absence of pretence,
deceit or hypocrisy.” Sincerity requires genuineness.
[43] In Patel26 Ledwaba DJP quoted with approval the dictum of the Supreme
Court of Appeal in Du Plessis27when accepting that arbitrary actions and lack of
objectivity amount to malice. He had the following to say:
“[21] To determine whether there was malice or not, it will be worth recalling
what the Supreme Court of Appeal said when it dealt with the duty of the prosecutor
in Minister of Police and Another v Du Plessis footnote(omitted):
"... A prosecutor has a duty not to act arbitrarily. A prosecutor must act with
objectivity and must protect the public interest.
[44] The real question is whether the Public Prosecutor when reading and
considering the docket on 27 th December 2017 did that in good faith. When a
decision setting the law in motion was taken, was is taken in good faith. T he
prerequisite for acting in good faith is the sincerity of intention; an intention that
is free of pretences, deceipt and hypocrisy. The Public Prosecutor pretended to
be considering the contents of the docket when in fact he was picking up only
on the c omplainant’s and victim’s version or story solely to glean what may
support a decision to set the law in motion. As the concept of good faith
requires the genuiness of the undertaking, the Public Prosecutor dismally failed
to genuinely perform his functio ns, with a purpose to arrive at a genuine
decision. Reading of only two statements out of six statements was a sham.
With all of this having been said, I come to conclusion that the Public
Prosecutor’s decision was not taken in good faith, but in bad faith and was mala
fide. All of these are attributes of malice. Arbitrariness, unreasonableness and
irrationality are incidents of malice.
26 Patel v National Director of Public Prosecutions and Others 2018 (2) SACR 420 (KZN) Para 21
27 Minister of Police and another v Du Plessis 2014 (1) SACR 217 (SCA) at Para 28
[45] It is hard to think that a conduct and a consequent decision that was
undertaken and taken in bad faith; that was ma nifestly biased and partial and
that was clearly prejudicial with intention to injure can amount to an honest
performance of duties and taking of decision. I am alive to the fact that malice
requires an honest belief in the guilt of the accused or an impro per or indirect
motive to exist. An honest belief in the guilt of the accused can only arise after a
thorough, fair, impartial and genuine consideration of facts and information at
the disposal of the Public Prosecutor. The word honest in the requirement o f
malice is an adjective naming an attribute of a noun. It is the belief that must be
honest. No amount of belief can be honest if the process that was followed was
not honest. I therefore come to a conclusion that, on facts and evidence of this
case the requirement of malice was satisfied.
[46] In any event, even if it can be found that I am wrong in the analysis I gave
or made above, I would still find that the Public Prosecutor was reckless and
was grossly negligent when he was dealing with the docket a nd when he was
taking a decision to set the law in motion on 27 th December 2017. A Malice can
be inferred on recklessness. Where proof of malice is founded on recklessness it
must be shown that the recklessness included the element that the defendant
could have ascertained the true facts but deliberately refrained from doing so; or
where knowing that it was doubtful whether or not his or her belief was well
founded, he or she was indifferent as to whether or not it was in fact well
founded. Malice may be i nferred where the defendant acted in a grossly
negligent and reckless way, in furtherance of his or her own interest, without
due regard to the rights of others and careless as to whether he or she interfered
with the liberty of another. Reference to reckl essness or reckless disregard of
with the liberty of another. Reference to reckl essness or reckless disregard of
the rights of others is explicable as a way of describing absence of an honest
belief.28 It scores high against the Public Prosecutor that he neglected to read
and consider four statements that were readily in the docket wh ich were clearly
casting doubt on the guilt of the plaintiff. The amount of his carelessness and
prejudice to the plaintiff’s rights is immeasurable. Public Prosecutor’s conduct
clearly conduced to malice.
[47] The last requirement which should not detain us long is that of termination
of proceedings in plaintiff’s favour. While Mr Calaza seemingly accepted that
the withdrawal of criminal proceedings on 12 th April 2018 brought about
termination of the proceedings, he however submitted that there was no
evidence led in terms of which the plaintiff was exonerated. He therefore
concluded that the proceedings may be restarted therefore this requirement has
not been satisfied. I honestly struggle to follow this submission. If it
means that only when there is evidence led in terms of which the plaintiff is
exonerated that the criminal proceedings would be regarded as terminated, it
means that the word termination must ` have another meaning. No
authority was relied upon for this proposition, notwithstanding t hat I requested
supplementary heads of arguments after it was clear that Mr Calaza was unable
to orally support his submission.
[48] The grammatical, ordinary meaning of the word terminate is “1. Bring
to an end. 2 (of a thing) have its end at (a specif ied place or of (a specified
form)”. It is common cause that what is required is termination of proceedings.
Once termination is proved, it must also be proved that such termination was in
favour of the plaintiff. Mr Calaza was constrained to accept that t he termination
of proceedings that occurred on 12 th April 2017 was in favour of the plaintiff.
28 LAWSA, V ol 15, 2nd Edition, Page 210, Para 343
The termination of proceedings brought about the removal of a cloud of
criminal process and investigation hanging over his head. The anxiety that came
with the existence of criminal proceedings went away. A possibility of
criminal sanction diminished. The criminal proceedings were truly terminated in
favour of the plaintiff especially that there are no new criminal proceedings
against the plaintiff based on the same facts. The withdrawal brough about a
sigh of relief to the plaintiff and his family.
[49] In fact withdrawal of criminal proceedings signals the termination thereof.
The authority for that proposition is Patel’s case 29, where criminal proceedings
were withdrawn approximately after 13 months.
Conclusion on merits / liability
[50] The plaintiff has succeeded in the claim for malicious prosecution to prove
all the elements or requirements of the claim. Accordingly, the defendant is
liable for all the proven damages the plaintiff has suffered.
[51] There is an interface between Intention, Malice and absence of reasonable
and probable cause. In some cases, malice has been referred to as animus
iniurundi,30 while in others the courts have also said that malice may be
evidence of animus iniurundi. Malice may sometimes be evidence of absence of
reasonable and probable cause31.
29 Patel v NDPP (Supra) Para 37
30 Moaki v Reckitt and Colman (Africa) Ltd 1968 (3) ALL SA 242 (A); 1968(3) SA 68 AD at 104
31 LAWSA (Supra) page 199 Para 322
[52] The fact that Public Prosecutor’s conduct and actions were arbitrary and
unreasonable, it stands to reason that they were malicious. The fact that the
Public Prosecutor undertook his duties with bad faith means that he acted
without reasonable and probable cause. Because an element of good faith
requires honesty and sincerely of intention, it is inherent therein that the Public
Prosecutor acted with intention to injure. Deliberate disregard of the contents of
the docket satisfied these three requisites for a successful claim of malicious
prosecution.
[53] It is now crystal that the element that the defendant did not honestly believe
that the plaintiff was guilty of the offence charged is present or shared by the
requirement of malice and absence of reasonable and probable cause. Having
reached a conclusion that both requirements o f malicious prosecution share the
same attribute or element, intention to injure readily inheres in the conduct
outlined above.
[54] The Public Prosecutor should have observed the provisions of Section 7(2)
of the Constitution, which provides as follows:
“The state must respect, protect, promote and fulfil the rights in the Bill of
Rights."
The Public Prosecutor’s decision had negative implications not only to the
dignity of the plaintiff, but also to his freedom as envisaged in Section 12(1) of
the Constitution. The enrolment of the matter had a bearing on the freedom of
the plaintiff. The Public Prosecutor adopted a cavalier attitude towards
plaintiff’s rights and interests. The Constitutional Court 32 emphasized the
responsibility bestowed upon the organs of the State as follows:
32 MEC for Health Eastern Cape and another v Kirland Investment (Pty)Ltd 2014(3) SA 481(CC) para 82
“….On the Contrary, there is higher duty on the State to respect the law, to
fulfil procedural requirements and tread respectfully when dealing with rights.
Government is not an indigent or bewildered litigant, adrift on a sea of
litigious uncertainty, to whom the courts must extend a procedure -
circumventing lifeline. It is the Constitution’s primary agent. It must do right,
and it must do it properly”.
Quantum
[55] The plaintiff testified that criminal case of rape he was facing changed
the way people were looking at him. The plaintiff in an action for malicious
prosecution may claim a solatium for infringement of his or her personality
rights, including bodily integrity, reputation, dignity 33
[56] In Diljan34Makaula AJA had the following to say:
“[18] The acceptable method of assessing damages includes the evaluation
of the plaintiff’ s personal circumstances; the manner of the arrest; the
duration of the detention; the degree of humiliation which
encompasses the aggrieved party’ s reputation and standing in the
community; deprivation of liberty; and other relevant factors peculiar
to the case under consideration.
[19] Whilst, as a general rule, regard may be had to previous awards, sight
should, however, not be lost of the fact that previous awards only serve
as a guide and nothing more. As Potgieter JA cautioned in Protea
Assurance Co. Ltd v Lamb:
‘It should be emphasised, however, that this process of
comparison does not take the form of a meticulous examination
of awards made in other cases in order to fix the amount of
compensation; nor should the process be allowed so to
dominate the enquiry as to become a fetter upon the Court’ s
general d iscretion in such matters. Comparable cases, when
available, should rather be used to afford some guidance, in a
general way, towards assisting the Court in arriving at an
award which is not substantially out of general accord with
33 LAWSA, Vol 15, Page 206 Para 334
33 LAWSA, Vol 15, Page 206 Para 334
34 Diljan v Minister of Police (746/2021) [2022] ZSCA 103 (24 June 2022) 22 JDR 1759 SCA Para 18-19.
previous awards in broad ly similar cases, regard being had to
all the factors which are considered to be relevant in the
assessment of general damages. At the same time, it may be
permissible, in an appropriate case, to test any assessment
arrived at upon this basis by reference to the general pattern of
previous awards in cases where the injuries and
their sequelae may have been either more serious or less than
those in the case under consideration.”
[57] In Tyulu35 the Supreme Court of Appeal held:
“[26] In the assessment of damages for unlawful arrest and detention, it is
important to bear in mind that the primary purpose is not to enrich the
aggrieved party but to offer him or her some much-needed solatium for
his or her injured feelings. It is therefore crucial that serious attempts
be made to ensure that the damages awarded are commensurate with
the injury inflicted. However, our courts should be astute to ensure that
the awards they make for such infractions reflect the importance of the
right to personal liberty and the s eriousness with which any arbitrary
deprivation of personal liberty is viewed in our law. I readily concede
that it is impossible to determine an award of damages for this kind of
injuria with any kind of mathematical accuracy. Although it is always
helpful to have regard to awards made in previous cases to serve as a
guide, such an approach if slavishly followed can prove to be
treacherous. The correct approach is to have regard to all the facts of
the particular case and to determine the quantum of damage s on such
facts ( Minister of Safety and Security v Seymour 2006 (6) SA
320 (SCA) 325 para 17; Rudolph & others v Minister of Safety and
Security & others (380/2008) [2009] ZASCA 39 (31 March 2009)
(paras 26-29).
[58] It has to be taken into account that the plaintiff was placed under a
tremendous pressure when the law was set in motion. He went through criminal
litigation in the district court which was ultimately withdrawn. The length of
litigation in the district court which was ultimately withdrawn. The length of
time when the plaintiff was subjected to prosecution is an important
consideration. The anxiety, uncertainty and anguish he went through when he
was still under prosecution is a relevant factor to be taken into account.
The Prosecution had negative impact on dignity, reputation and esteem of the
35 Minister of Safety and Security v Tyulu 2009 (5) SA 58 (SCA); 2009 (2) SCAR 282 (SCA); 2009 (4) ALL
SA 38 Para 26.
plaintiff36. The element of malice weighs heavily when considering the quantum
as well. I am therefore satisfied that an amount of R250 .000.00 is a fair and
reasonable compensation for a claim of malicious prosecution37.
Costs
[59] The general rule is that costs should follow the result. I have not been told
that there is a ground or basis for deviation from the general rule. The defendant
is liable to pay the costs of suit.
Order
[60] In the result the following order shall issue:
[60.1] The defendant is liable to the plaintiff in the amount of
R250 000.00 in respect of the claim of malicious prosecution.
[60.2] The defendant shall pay interest on the capital amount of
R250 000.00 referred to in paragraph 60.1 above at a
prescribed legal rate calculated from the date of this judgment
to the date of final payment.
[60.3] The defendant shall pay costs of suit.
________________________________
A.S ZONO
JUDGE OF THE HIGH COURT (ACTING)
36 Patel v NDPP (Supra) Para 37 and 39
37 Hassien v Minister of Police for the Republic of South Africa and others (612/2019) [2025] ZAECMHC
120 (18 November 2025) Para 69
APPEARANCES:
For the Plaintiff : Adv Nqabeni
Instructed by : M. Nogube Inc
No 22 Eagle Street
Mthatha
Tel:067 312 5778
For the Defendant : Adv Calaza
Instructed by : State Attorney
94 Sission Street
Fortgale
Mthatha
Matter heard on : 23 February 2026
Delivered on : 17 March 2026