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IN THE IDGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION MAHIKENG
In the matter between:
PAUL BOIKOBO MAOTWANE
LETLHOGONOLO SAM MODISANE
OBAKENG MODISANE
ISAAK MODISANE
And
THE MINISTER OF POLICE
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
Coram: Matlhape AJ
Heard: 18 February 2026
Reserved: 27 February 2026
Not reportable
CASE NO: 249/2025
1st PLAINTIFF
2nd PLAINTIFF
3rd PLAINTIFF
4th PLAINTIFF
pt DEFENDANT
2nd DEFENDANT
NO
NO
NO
NO
Delivered: Judgment was handed down electronically by circulation to the
parties' legal representatives by email and released to SAFLII. The date and time
for handing down of the judgment are deemed to be 16h00 on 12 May 2026.
Summary: Delict - unlawful arrest and detention - malicious prosecution
defendants ipso facto barred - plaintiffs deprived of liberty following arrest
without a warrant in terms of s 40( 1 )(b) of the Criminal Procedure Act 5 I of 1977
- no opposing evidence adduced - arrest and detention prima facie unlawful
- onus rests on defendant to justify deprivation of liberty without a warrant -
failure to establish existence of jurisdictional facts, in particular, absence of
reasonable suspicion on objective grounds - failure by arresting officers to
investigate exculpatory explanations - arrest and continued detention unlawful
- conditions of detention aggravating infringement of dignity - malicious
prosecution based on lack of reasonable and probable cause - quantum of
damages - not to be assessed on a fixed daily tariff - court to exercise judicial
discretion having regard to all relevant circumstances - comparable awards
serving only as a guide - damages awarded as fair and reasonable compensation.
ORDER
1. The arrest and subsequent detention of each of the Plaintiffs are hereby
declared to have been unlawful.
2. The institution and continuation of the prosecution by the Second
Defendant are declared to have been malicious.
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3. The Defendants are ordered , jointly and severally, the one paying the
other to be absolved, to pay to each of the Plaintiffs the sum of R500
000.00 (Five Hundred Thousand Rands only) for unlawful arrest,
detention and malicious prosecution for a period of 15( Fifteen) days from
20 September 2022 to 05 October 2022.
4. Interest on the aforesaid amounts shall accrue at the prescribed legal rate
from the date of this judgment to the date of final payment.
5. The Defendants shall jointly and severally, the one paying the other to be
absolved, pay the Plaintiffs' costs of suit on the party and party scale.
JUDGMENT
MATLHAPEAJ
Introduction
[1] The Plaintiffs instituted an action for damages arising from their arrest,
detention, and subsequent prosecution on allegations of rape. They were detained
in custody from 20 September 2022 to 5 October 2022.
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[2] The matter proceeded on an unopposed basis due to the fact that the
defendants, desp ite entering an appearance to defend, failed to plead and as a
result were ipso facto barred.
Summary of the PlaintifPs Evidence
[3] The four plaintiff s testified in support of their claims.
The First Plaintiff: Mr Boikobo Paul Maotwane
[4] Mr Maotwane testified that he was arrested on 20 September 2022 by four
police officials who were dressed in civilian clothing and travelling in two
unmarked motor vehicles. On the day in question he received a telephone call
from the police requesting him to meet with them. He voluntarily met the police
at Rietfontein Section. He was informed that he was being arrested for rape and
the name of the complainant was disclosed to him. This was done in full view of
members of the public. He testified that the complainant was not present at the
scene of the arrest and it appeared that the police themselves did not appear
certain as to whom they were looking for because they first asked him about a
person named Kruger. He denied any involvement in the commission of the
alleged rape and provided an exculpatory account. He informed the police that he
is familiar with the complainant as they live within the same community and that
on the day in question he did see the complainant, however, she was in the
company of a certain gent leman.
[5] At the police station his fingerprints as well as buccal swabs were taken for
the purpose of DNA testing.
(6] Mr Maotwane made his first appearance in court on 2 1 September 2022. The
matter was subsequently remanded on several occasions and he remained in
custody until 5 October 2022 when the charges were formally withdrawn on the
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basis of insufficient evidence, as confirmed by a certificate issued by the National
Prosecuting Authority.
(7) He described the conditions of detention as poor, including overcrowding,
lack of water, unclean blankets, and deprivation of food and toiletries. He further
testified to reputational hann in that members of his community now perceive
him to be a rapist following the incident.
The Second Plaintiff: Mr Letlhogonolo Sam Modisane
[8] Mr Modisane similarly testified that he was contacted by the police who asked
him to meet up with them. Upon meeting the police they informed him that he is
being arraigned on a charge of Rape. He was also arrested in full view of the
public, in the presence of onlookers, and transported to Madikwe Police Station.
He also infonned the police that on the day in question he saw the complainant
in the company of a certain individual, a gentleman. The complainant is someone
whom he is familiar with. He testified that the police failed to investigate this
exculpatory infonnation.
[9] Like the first plaintiff, he was detained from 20 September until 5 October
2022, when the charges against him were formally withdrawn for lack of
evidence. He expressed the view that both his arrest and continued detention were
unjustified in the absence of evidence. He further testified that the prosecution
was malicious because the prosecutor should have considered the fact that the
police did not follow up on the exculpatory infonn ation that he provided them
with.
[10] He testified that he was detained under harsh conditions in that the cell in
which he was kept in was overcrowded. There was lack of water, unsanitary
facilities and he was given too little food. He was intimidated by his fellow
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detainees. He also testified to reputational harm and social ostracism following
his arrest.
The Third Plaintiff: Mr Obakeng Modisane
[l 1] Mr Obakeng Modisane testified that he was arrested at a tavern by four police
officials who were seeking several individuals. After identifying himself, he was
arrested and transported to the police station, where he was informed of the rape
allegation against him. He denied any involvement and informed the police that
on the day in question, he did see the complainant, however, she was in the
company of a certain gentleman. He testified that the police did not act upon this
information.
[12] He first appeared before court on 21 September 2022 and the matter was
subsequently postponed. He was detained from 20 September 2022 and remained
in custody until the withdrawal of charges on 5 October 2022. He testified that
there was no evidential basis for his arrest or prosecution.
[13] His evidence regarding detention conditions mirrored that of the other
plaintiffs, including overcrowding , lack of water, inadequate bedding and poor
food quality.
The Fourth Plaintiff: Isaak Modisane
[14] Mr Isaak Modisane testified that he was arrested on 20 September 2022 at a
car wash by four detectives and subsequently taken to collect the first and second
plaintiffs before being transported to the police station. He stated that he was not
informed of the reason for his arrest at the time and only later learned that it
related to an allegation of rape. He denied any involvement and maintained that
he was not present at the scene of the alleged offence.
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[15] Ile testified that the police ignored his explanations and proceeded with his
arrest and prosecution despite the absence of evidence. He remained in custody
until 5 October 2022 when the charges against him were forma lly withdrawn for
lack of evidence .
[16] He described severe detention conditions, incluJing extreme overcrowding,
lack of water and sanitation , inadequate food, and deprivation of personal
belongings. He further testified to enduring reputational harm, including being
labelled a rapist. As a result, he is no longer able to secure employment within
his community.
[17] In support of their evidence, each of the Plaintiffs adduced documentary
evidence in the form of certificate of withdrawal of charges by the Public
Prosecutor dated 27 September 2022 as well as a copy of the magistrates notes
at their first appearance on 21 September 2022 and 5 October 2022 when the
charges against them were forma lly withdrawn in court.
Legal Framework
[18] Section 12 of the Constitution of Sout Africa states that :
.. Freedom and security of the person
( I )Everyone has the right to freedom and security of their person, which
includes the right -
(a) not to be deprived or freedom arbitrarily or without just
cause.''
[19] Section 35 of the Constitution states that:
"Arrested, detained and accused persons
(2) Everyone who is detained, including every sentenced prisoner, has the right-
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(e) to conditio ns of detention that are consistent w ith human dignity. including
at least exercise and the prov ision, at state expense, of adequate
accommodation, nutrition , reading material, and medical treatment. .:·
[20] Section 40 of the Criminal Procedure Act 51 of 1977 provides:
"Arrest by peace officer without a warrant
(I) A peace officer may without a warrant arrest any person-
(a) Who commits or attempts to commit any offence in his presence;
(b) whom he reasonably suspects of having committed an offence referred to
in Schedule 1, other than the offence of escaping from lawful custody .... "
Malicious Prosecution
[21] The requirements were authoritatively restated in
Minister for Justice and Constitutional Development v Moleko 1 where the
Supreme Court of Appeal held that:
" In order to succeed (on the merits) with a claim for mali cious prosecution, 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;
1 [2008) ZASCA 43 para 8 (3 1 March 2008)
8
(c) that the defendants acted with ' malice' (or animo injuriandi); and
(d) that the prosecution has failed."
Analysis of the Merits
[22] The real issue is whether the arrest of the plaintiffs was unlawful. Should
this aspect be decided in the affirmative, then it shall follow that their subsequent
detention was also unlawful. Furthermore, the court has to decide whether their
prosecution was malicious.
[23] In determining matters of this nature, the Court must commence with a
consideration of the Constitution, which remains the supreme law and the primary
point of departure in the adjudication of such disputes. As stated herein above,
section 12(1) of the Constitution guarantees everyone a right to freedom and
security and not to be detained arbitrarily. Law enforcement agencies are
therefore cautioned from unlawfully depriving citizens of these rights as
protected in the Bill of right.
[24] In order to determine whether the arrest was unlawful, one &as to consider
the manner in which the arrest was effected as well as the conduct of the arresting
officer when they effected the arrest. It is trite that the lawfulness of an arrest is
closely connected to the facts of each situation2.
2 Minister o f Safety and Security v Yan Niekcrk, 2008 (1) SACR 56 (CC) @ 20
9
[25] The Criminal Procedure Act provides for instances where an arrest can be
effected without a warrant. As can be gleaned from the provisions of section 40( 1)
(a) above, those instances are :
(i) The arrest must have been effected by a peace officer; and
(ii) The offense or attempted offence must have been committed in his or her
presence.
[26]Similarly, the jurisdictional factors of section 40(1 )(b) are as follows:
(i) The arrestor must be a peace officer.
(ii) The arrestor must entertain a suspicion.
(iii) The suspicion must be that the suspect committed an offence
referred to in Schedule 1.
[27] A peace officer is authorised to can effect an arrest without a warrant in
instances where the offence or an attempt to commit an offence is committed in
his presence. It is important to qualify this statement by mentioning the fact that
section 40(l)(a) covers any kind of offences, the qualifying word being "any"
offence. However, section 40( I )(b) covers an arrest for offences that are listed in
schedule 1. In such a case, the peace office can only effect an arrest without a
warrant after having entertained a reasonable suspicion that the suspect
committed such an offence. In essence, the arresting officer has to exercise
10
judgment , assess the available information and conduct such basic enquiries as
were reasonably necessary before depriving one of their personal liberty. A
reasonable suspicion cannot be founded on conjecture, rumour or an untested
allegation.
[28] The circumstances of the case at hand are that the Plaintiffs were arrested
without a warrant in instances where they were accused of having committed an
offence of Rape, which offence was neither committed in the presence of a peace
officer nor falls within the ambits of schedule 1. The fact that Rape is a serious
offence does not render the arrest lawful, the jurisdictional facts set out in section
40(1 )(b) of the Act must still be present.
[29] In Duncan v Minister of Law and Order\ the Court set out the
jurisdictional facts for an arrest under section 40( l )(b) as depicted herein above,
being that the arrestor must be a peace officer; must entertain a suspicion; the
suspicion must relate to a Schedule 1 offence; and the suspicion must rest on
reasonable grounds.
[30] In Ma bona and Another v Minister of Law and Order and Others4, the
Court held that the test for reasonable suspicion is objective in that the arresting
3 1986 (2) SA 805 (A) at 8180- 1-1
• 1988 (2) SA 654 (SE) at 658E-H
11
officer must have information which would induce a reasonab le person to suspect
that the plaintiff committed the offence.
[31] In Minister of Safety and Security v Sekhoto and Another5, the SCA
reaffirmed the Duncan jurisdictional facts and held that, once they are present,
the peace officer has a discretion whether to arrest or not, which discretion must
be exercised rationally and for a proper purpose .
[32] In Dukada6 the Court reaffirmed that where an arrest is effected without a
warrant, the onus rests on the Minister to justify its lawfulness. Mere suspicion,
devoid of objective factual grounding , cannot suffice. This position accords with
the constitutional imperative articulated in Mahlangu that any deprivation of
liberty must be justified on lawful grounds. Regard must be had to the fact that
the onus is upon the arrestor to prove on a balance of probabilities that the arrest
was lawful.
[33] The evidence before this Court demonstrates that during their arrest, the
plaintiffs voluntarily cooperated with the police. There was no evidence that they
were a flight risk, that they would interfere with witnesses, or that they posed any
danger to society. Their immediate arrest, without basic investigation , was
therefore not shown to have been objectively reasonabl e. Absent the first
5 20 1 I (I ) SACR 3 15 (SCA) para 6
6 (3571/2022) (2025] ZAECM HC I 0
12
defendant 's evidence or any version contradicting that of the plaintiffs , the court
can only assess the evidence that is before it. The evidence before this Court
points to the fact that on a balance of probabilities , the arrest of the four plaintiff
was unlawful.
[34] Having found that the arrest was unlawful, it follows that a determination
should be made on whether their subsequent detention was unlawful , keeping in
mind that where the initial arrest is unlawful, subsequent detention ordinarily
rema ins tainted unless an independent lawful basis is established. No such basis
was ever established in this matter. The charges against all four plaintiffs were
ultimate ly withdrawn for lack of evidence, which reinforces the conclusion that
the plaintiffs spent a period of fifteen days in custody as a result of the deprivation
of liberty which was not justified.
[35] As far as the malicious prosecution is concerned , the plaintiffs assert that
the prosecution was initiated by the State based on no reasonable cause in the
case where the evidence showed that the police failed to investigate exculpatory
evidence and proceeded to arrest them.
[36] In Olesitse N.O. v Minister of Police7, the Constitutiona l Court, when
drawing a distinction between unlawful arrest and maliciou s prosecution, said the
following:
7 [2023} ~ ICC 35; 202./ (2) BCLR 238 (CC) para 60
13
• ... [M]alicious prosecution is constituted by: (a) settin g the law in motion against a claimant;
(b) lack of reasonable and probable cause on the part of the defendant; (c) malice or animus
iniur iandi; and (d) termin ation of criminal proceedings in the claimant's favour. As far as the
onus is concerned, here, unli ke a claim based on unlawful arrest and detention, it rests on the
claimant in respect of all the elements of the delict , includin g that of malice or animus
iniuriandi.'
[3 7] Consequently, the onus is upon the plaintiffs to prove upon a balance of
probabilities that the prosecution against them was malicious and without a
probable cause.
[38] The SCA in the case of National Director of Public Prosecutions v
Mdhlovu8 referred to the old case of Prinsloo and Another v Newman I 975(1)
SA 48 l (A) where it was found that reasonable and probable cause can be
explained as follows:
' In Prinsloo and Another v Newman , this Court discussed the concept of reasonable
and probable cause for prosecution in the context of malicious prosecution. The Cou1t
held that the test for reasonable and probable cause is an objective one. It is not based
on the subjective beliefs or motives of the prosecutor. Reasonable and probable cause
exists if a reasonable person would have concluded that the accused was probably guilty
on the facts available to the prosecutor at the time.·
[39] The SCA went on to say that it 'fo llows then, that a prosecutor need not have
evidence establishing a prima facie proof or proof beyond a reasonable doubt
8 194/2023 ZASCA 85 of 3 June 2023 para 20
14
when deciding to initiate a Prosecution. Suspicion of guilt on reasonable grounds
suffices. The question is what a reasonable prosecutor would have done in light
of the information available at the relevant time9.'
[40] Having regard to the findings of the SCA referred to above, a prosecutor is
at the very least required to satisfy himself or herself that there exists some
evidentiary basis linking the plaintiffs to the commiss ion of the alleged offences.
In the present matter, no identity parade was conducted, nor was the complainant
present at the scene of arrest to identify the alleged perpetrators to the police.
These shortcomings, viewed together with the fact that the plaintiffs furn ished
exculpatory statements which were never properly investigated or followed up by
the police, ought to have alerted the prosecutor to the weakness of the case against
them. Whilst the onus rests upon the plaintiffs to establish their claim, what makes
this case peculiar , is that there is no evidence before this Court contrad icting their
version.
[ 41] It is trite that, in order to succeed with a claim for malicious prosecution , a
mere demonstration of an improper motive is, on its own, insufficient to establish
animus iniuriandi . A plaintiff must further demonstrate that the prosecution was
instituted without reasonable and probable cause. Meaning that the prosecution
9 Mndlo vu, paragraph 2 1
15
should have been initiated without reasonable or probable cause, based on what
was present before the prosecutor at the time of initiating the prosecution.
[42] Upon a conspectus of all the evidence and a proper assessment of the
probabilities, I am satisfied that the plaintiffs have discharged the onus resting
upon them to prove a claim for malicious prosecution.
Quantum of Damages
[43] Having found that the arrest and detention of the plaintiffs was unlawful
coupled with the fact they successfully proved malicious prosecution on the part
of the second defendant I now tum to the issue of quantum. The purpose of an
award of damages is not to enrich the plaintiffs, but to compensate them for the
infringement of their liberty, dignity and personality rights .
[44] In Minister of Safety and Security v Seymour10, the SCA cautioned that
previous awards are useful guides but should not be applied mechanically.
[45] In Minister of Safety and Security v Tyulu 11, the SCA held that damages
are intended to provide solatium for injured feelings and must be fair to both
sides.
10 2006 ( 6) SA 320 (SCA) para 17
11 2009 (5) SA 85 (SCA) para 26
16
[ 46] In Motladile v Minister of Police12 the SCA deprecated the mechanical
approach, particularly in this Division, of awarding a fixed daily amount for
unlawful detention. The Court held that such an approach is a misdirection and
substituted the award given with another amount for the unlawful detention of the
plaintiff in that matter.
(47] Consequently, this Court must therefore avoid a tariff-based calculation. The
relevant factors that this Court takes cognisance of, include the period of
detention, the seriousness of the allegation against the plaintiffs , the manner of
arrest, the plaintiffs' humiliation, the impact on their dignity, the reputational
harm suffered as well as the withdrawal of the charges for lack of evidence.
[48] Furthermore, the court cannot turn a blind eye to the detention conditions
which the plaintiffs were subjected to such as overcrowded cells, unhygienic and
degrading ablution facilities as well as lack of proper nutrition. Each plaintiff
was visibly emotional when they testified about the hardship that they had to
endure whilst in detention, the humiliation as well as reputational harm.
[49] Balancing these factors against the need to ensure that awards remain fair,
reasonable and not extravagant. I am satisfied that an amount of R450 000 per
plaintiff constitutes just and equitable compensation in the circumstances.
12 (414/2022) (2023] ZASCA 94; 2023 (2) SACR 274 (SCA) paras 13- 17 and 25,
17
[50] As a general principle, costs follow the result. There is no reason in this
matter to depart from that rule. The plaintiffs have been wholly successful in
establishing that their arrest and subsequent detention were unlawful. They were
also successful in proving on a balance of probabilities that the prosecution was
malicious, as a result they have been compelled to approach this Court to
vindicate their constitutional rights to freedom and dignity. The conduct of the
first defendant's employees, in effecting the arrest without reasonable grounds
and failing to properly investigate the matter, necessitated the institution of these
proceedings. In such circumstances, fairness dictates that the plaintiffs should not
be out of pocket in seeking redress. Similarly, the second defendant's employee
initiated the prosecution without any reasonable or probable cause. I am
accordingly satisfied that the defendants must bear the costs of suit.
Order
[51] The following order is made:
1. The arrest and subsequent detention of each of the Plaintiffs are hereby
declared to have been unlawful.
2. The institution and continuation of the prosecution by the Second
Defendant are declared to have been malicious.
18
3. The Defendants are ordered, jointly and severally, the one paying the other
to be absolved, to pay to each of the Plaintiffs the sum of R500 000.00
(Five Hundred Thousand Rands only) for unlawful arrest, detention and
malicious prosecution for a period of l 5(Fifteen) days from 20 September
2022 to 05 October 2022.
4. Interest on the aforesaid amounts shall accrue at the prescribed legal rate
from the date of this judgment to the date of final payment.
5. The Defendants shall jointly and severally, the one paying the other to be
a olved, pay the Plaintiffs' costs of suit on the party and party scale.
MATLHAPEB
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
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Appearances:
For the plaintiff: Mr Lehabe
Instructed by: LEHABE ATTORNEYS INC
MMABATHO
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