REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, JOHANNESBURG
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
8 May 2026
In the matter between:
DOMINGOES JOAO NAVES
NKOMOKAZIHLA TSWA JOHN MATHE
And
MINISTER OF POLICE
NATIONAL DIRECTOR OF
PUBLIC PROSECUTION
MIA, J
JUDGMENT
Case No: 2020/18097
First applicant
Second applicant
First respondent
Second respondent
2
Introduction
[1] This is an action for damages arising from the alleged unlawful arrest,
detention, assault, and malicious prosecution. The matter proceeded on
an unopposed basis. The record reflects and counsel submitted that the
respondents' defence was struck out on 11 November 2024. The
respondents were entitled to cross examine the applicants on the
evidence they tendered notwithstanding that the respondents defence
was struck out. The respondent's opportunity to cross examine in the
context where their plea has been struck out is not novel and has
addressed previously by this court.1 It is trite that even in such
circumstances, the plaintiff must prove its case.2 The State Advocate sent
a representative on a watching br~ef. N9twithstanding the absence of
opposition, the plaintiffs bear the onus to establish, on a balance of
probabilities, each element of the causes o! action advanced.
Background facts
[2] The plaintiffs' case, as presented through oral testimony, may be
summarised as follows. On 8 November 2017, the plaintiffs were stopped
and searched by members of the South African Police Service in
Carletonville. No incriminating items were found, and they were initially
permitted to proceed. Shortly thereafter, they were stopped again,
conveyed to the police station, and subjected to further interrogation. It
was alleged that at the police station they were assaulted and thereafter
taken to a school that had allegedly been burgled, where they were
presented to the principal but were not identified as perpetrators who had
burgled the premises.
[3] The plaintiffs were subsequently taken to their residences in
Johannesburg, where items were seized. According to the plaintiffs, these
items bore no relation to the property allegedly stolen from the school. The
plaintiffs were detained and appeared in court on 10 November 2017 and
were charged with several counts. The State opposed bail, however,
were charged with several counts. The State opposed bail, however,
1 Stevens and Another v Road Accident Fund (26017/2016) (2022) ZAGPJHC 864 (31 October 2022).
2 Minister of Safety and Security v Tyokwana 2015 (1) SACR 597 (SCA) at para 13,
3
during the subsequent bail application, it was refused and they remained
incarcerated for approximately 583 days. The prosecution ultimately
terminated in their favour upon a discharge in terms of section 17 4 of the
Criminal Procedure Act 51 of 1977.
[4] The plaintiff's evidence was limited to their arrest and their incarceration.
During submissions counsel relied upon the record of the proceedings in
the court a quo despite it not having been introduced into evidence.
Issues for determination
[5] The issues for determination are:
5.1. whether the arrest and detention were unlawful.
5.2. whether the applicants established a claim for malicious
prosecution.
5.3. whether the alleged assault was proven
5.4. the appropriate quantum of damages, if any.
5.5. an appropriate costs order.
Evidentiary framework
[6] It is necessary to emphasise that documents uploaded to CaseLines do
not constitute evidence unle~s properly introduced and admitted.
Similarly, pleadings and heads of argument do not constitute evidence
and cannot substitute for proof of factual assertions. The applicants are
required to prove their case through admissible evidence. The absence of
opposition or cross examination does not relax this requirement.
Unlawful arrest and detention
[7] It is trite that an arrest without a warrant is prima facie unlawful, and the
onus rests on the arresting authority to justify such arrest.3 The
jurisdictional requirements under s 40(1)(b) are set out in Duncan v
Minister of Law and Order.4 The suspicion must be objectively
3 Minister of Law and Order v Hurley 1986 (3) SA 568 (A) at 589E-F .
4 1986 (2) SA 805 (A) at 818G-H .
4
reasonable.5 Moreover, the discretion to arrest must be rationally
exercised.6
[8] The justification typically rests on the existence of a reasonable suspicion
that the arrestee has committed a Schedule 1 offence. The suspicion must
be objectively sustainable on reasonable grounds. The applicants testified
that they stopped by police officers when their vehicle was searched and
nothing incriminating was found on them. They were permitted to leave
however they were arrested later. No items linking them to the burglary at
the school were discovered upon the initial search or at their premises.
There is no evidence before this court indicating the objective basis upon
which the arresting officers formed a reasonable suspicion for the arrest.
In the absence of such evidence and having regard to the unchallenged
version of the applicants, the arrest does not appear to be justified. The
detention that followed the arrest is causally linked to that arrest, at least
until the applicants' appearance in court. Accordingly, the applicants have
established that their arrest on 8 November 2017 and initial detention until
10 November 2017 were unlawful.
Extent of liability for detention
{9] The plaintiffs were detained for 48 hours before they were for an extended
period of approximately 583 days after their arrest. However, once the
plaintiffs were brought before court, further detention was subject to
judicial oversight. In the absence of evidence demonstrating that the
subsequent detention was legally attributable to the conduct of the police,
the court must exercise caution in attributing liability for the entire period
to the respondents. The evidentiary record before this court does not
include the bail proceedings; the contents of the docket were not
presented as evidence. It was merely referred to by counsel. Perusal of
the docke t indicates that the applicants both had several previous
convictions involving crimes of dishonesty and violence which include
convictions involving crimes of dishonesty and violence which include
5 Mabona v Minister of Law and Order 1988 (2) SA 654 (SE) at 658E- H.
6_Minister of Safety and Security v Sekhoto 2011 (5) SA 367 (SCA) paras 28 - 44.
5
robbery and house breaking with intent to steal and theft which may
suggest why bail was refused. The evidence of the applicants indicated
that they were charged with several offences and not only the house
breaking and theft which resulted in their arrest on 8 November 2017 . The
docket references several cases whilst not indicating what the charges
were. Accordingly, this court cannot, on the evidence presented, attribute
the entire period of detention to the arrest of applicants on the charge of
house breaking in and theft . The decision not to release the applicants on
bail was taken by the presiding officer in the district court .
[1 O] The uncontested evidence establishes that the plaintiffs were searched
and nothing incriminating related to the suspected house break-in was
found in their vehicle. They were permitted to leave and were
subsequently re-arrested without new information. No evidence was
placed before this court establishing the objective basis for suspicion. In
the absence of such evidence , the arrest is unlawful.
Detention and Causation
[11] The applicants' detention for the period prior to their appearance in court
is likewise unlawful. In Zealand v Minister of Justice,7 the Court said:
"[25] This is not something new in our law. It has long been firmly established
in our common law that every interference with physical liberty is prima facie
unlawful. Thus, once the claimant establishes that an interference has
occurred, the burden falls upon the person causing that interference to
establish a ground of justification. In Minister van Wet en Orde v Matshoba , the
Supreme Court of Appeal again affirmed that principle, and then went on to
consider exactly what must be averred by an applicant complaining of unlawful
detention. In the absence of any significant South African authority, Grosskopf
JA found the law concerning the rei vindicatio a useful analogy. The simple
averment of the plaintiff's ownership and the fact that his or her property is held
averment of the plaintiff's ownership and the fact that his or her property is held
by the defendant was sufficient in such cases. This led that court to conclude
that, since the common law right to personal freedom was far more
7 2008 (4) SA 458 (CC); 2008 (6) BCLR 601 (CC); 2008 (2) SACR 1 (CC); (20081 ZACC 3 at para 25.
6
fundamental than ownership, i t must be sufficient for a plaintiff who is in
detention simply to plead that he or she is being held by the defendant. The
onus of justifying the detention then rests on the defendant. There can be no
doubt that this reasoning applies with equal, if not greater, force under the
Constitution. (footnotes omitted)"
The plaintiffs have presented evidence to prove their claims for wrongful
arrest and detention for the period 8 November 2017 to
10 November 2017.
[12) However, post-appearance detention raises issues of legal causation. In
De Klerk v Minister of Police,8 the Constitutional Court held that police
liability may extend beyond first appearance where a sufficient causal
nexus exists. The enquiry is one of legal causation, infused with
considerations of fairness, reasonableness , and policy.9
[13) In the present matter, there is no evidence relating to the bail proceedings.
It is not possible to ascertain what other charges were the applicants were
indicted for, neither did they specify the nature of the other offences save
that the first applicant testified that there were numerous charges. In the
circumstances where the applicants were indicted on several charges as
per the applicants own evidence it is not possible to ascertain whether
those charges flow from the house break-in and theft or whether there
were other cases unrelated to the charge of house breaking and theft. The
absence of evidence related to the contents of the docket and the absence
of the evidence relating to the bail proceedings as well as the prosecution
preclude me from concluding that the post appearance detention related
to the house break-in and theft exclusively. In the absence of this evidence
the causal nexus relating to the applicants' post detention is not
satisfactorily established against either respondent. The applicants have
not met this onus. The absence of such evidence precludes attribution of
not met this onus. The absence of such evidence precludes attribution of
the entire 583-day detention to the respondents related to the house
8 2019 (1 2) BCLR 1425 (CC): 2021 (4) SA 585 (CC}: 2020 (1) SACR 1 (CC): [2019] ZACC 32.
9 Id paras 42-45
7
break-in and theft. The applicants' case in circumstances where bail was
denied by the court does not prove a nexus for which the respondents can
be liable covering detention for 583 days.
Malicious Prosecution
[14] The requirements for malicious prosecution are set out in Minister of
Justice v Mo/eko.10 There must have been proceedings instituted and
terminated in favour of the applicants and there must be a reasonable
cause the proceedings have been instituted with malice. The reasonable
cause depends on information before the prosecutor.11 Malice requires
proof of improper motive.12 A discharge under s 174 does not prove
malicious prosecution.
[15] The plaintiffs led no evidence of the contents of the docket and the
charges they said they were indicted on nor did they lead evidence that
the prosecutor's decision to prosecute was malicious having regard to the
statements in the docket. In the absence of the aforementioned they failed
to address the question that the prosecutor had no reasonable cause to
prosecute. It is not possible to conclude that where the respondents set
the law in motion by instituting or continuing criminal proceedings against
the applicants; that the prosecution was instituted without reasonable and
probable cause; and was actuated by malice. The proceedings terminated
in favour of the applicants however there was no evidence presented to
draw the conclusion that there was no reasonable and probable cause.
The proceedings in the court a quo endured for over a year. In Moleko,
the court noted that the question is not whether the prosecution ultimately
proved to be sustainable, but whether a reasonable prosecutor,
possessed of the information available at the time, would have considered
that there were reasonable prospects of securing a conviction.13
10 2009 (2) SACR 585 (SCA) para 8.
11 Beckenstrater v Rottcher 1955 (1) SA 129 (A) para 136A-B .
12 Mofeko supra para 64.
13 Mofeko supra paras [62]-[65].
8
[16) On the facts presented, I am unable to conclude that the prosecution was
conducted with no reasonable cause and was malicious. In the absence
of proof of malice, the claim for malicious prosecution accordingly fails.
Assault
[17] The applicants' claim of assault requires proof of intentional and unlawful
force. On the evidence tendered, this is a generalised statement and the
extent of the unlawful force used is not evident. The submissions made
on behalf of the applicants were that they were extensively tortured. The
production of the record of their first appearance would assist in the
applicants proving this averment. The record would reflect their report to
the court about their abuse at the hands of the police. This would have
been recorded as well as any injuries. There was no suggestion that the
court refused to note such injuries. Where the applicants say they were
extensively assaulted and tortured there would no doubt have been
evidence could have been noted in the record at their first appearance.
Consequently, the plaintiffs' failed to establish the claim of extensive
assault and torture.
Calculation of damages-applicable principles
[18) In Minister of Safety and Security v Seymour14 the court expressed the
following view on the assessment of damages:
"[17] The assessment of awards of general damages with reference to awards
made in previous cases is fraught with difficulty. The facts of a particular case
need to be looked at as a whole and few cases are directly comparable. They
are a useful guide to what other courts have considered to be appropriate, but
they have no higher value than that. As pointed out by Potgieter JA in Protea
Assurance, after citing earlier decisions of this court:
'The above quoted passages from decisions of this court indicate that,
to the limited extent and subject to the qualifications therein set forth,
the trial Court or the Court of Appeal, as the case may be, may pay
the trial Court or the Court of Appeal, as the case may be, may pay
14 2006(6) (SCA) 320 at para 17; [2007] 1 All SA 558; (295/05) (2006] ZASCA 71 .
9
regard to comparable cases. 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 discretion 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 previous awards in broadly 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."'
[19) In Tilo v Minister of Police and Another 15 the court awarded an amount of
R400 000 for a period of under 30 days. The period of detention was not
insignificant. In Motladi/e v Minister of Police, 16 the SCA awarded R200
000 for a four-day detention. In De Klerk the Constitutional Court awarded
R300,000 for approximately seven days of unlawful detention17. The
period relevant to the present circumstances is the 48 hours prior to the
applicants first appearance in court. I have considered the evidence that
the applicants lost their source of income. The first applicant was self
employed as a gate motor technician; there was no evidence why he could
not continue his business upon his release. The second applicant was a
rubble removal truck driver. He lost his employment. No evidence was led
regarding his entry into the labour market. I accept that there was a loss
of income flowing from the period in detention. However insufficient
evidence was led in this regard.
evidence was led in this regard.
15 2026 JDR 1391 (GJ).
16 (414/2022) [2023) ZASCA 94; 2023 (2) SACR 274 (SCA) (12 June 2023) para 17.
17 Oe Klerk supra para 94.
10
[20] Given that there is no set standard and previous awards merely guide
subsequent awards or serve as a reference, awards must be fair and not
extravagant. The court stated in Minister of Safety and Security v Tyulu18
that it serves as a solatium for injured feelings rather than as enrichment,
noting that it is impossible to determine an award of damages for this kind
of injuria with any kind of mathematical accuracy. It indicated that the
correct approach was to have regard to all the facts of the particular case
and to determine the quantum of damages on such facts. In this manner
a court ensures proportionality and consistency having regard to specific
circumstances.
[21] The applicants were arrested and detained for 48 hours before they
appeared in court. Their application to be released on bail was refused.
Both applicants had several previous convictions which would have
influenced the bail proceedings and outcome. I have thus not considered
the detention period beyond _the first appearance and the bail application.
There was no attempt to bring an application appealing the decision to
refuse bail. It is not proper to revisit or review that court's decision. The
period I have considered applicable with regard to the arrest and detention
is 48 hours. The affront to dignity and deprivation of liberty is accepted as
against the first respondent. There is however no proof linking the first
respondent to the entire period of detention and no evidence of malice.
Having regard to all the relevant circumstances, including the duration of
the detention, the conditions of incarceration, the seriousness of the
charges and the need for consistency with comparable awards, an
amount of R300 000 constitutes fair and reasonable compensation for
each of the applicants unlawful arrest and detention.
[22] It is appropriate that costs follow the result. I am unable to determine the
costs relating to prior proceedings absent an evidentiary foundation.
costs relating to prior proceedings absent an evidentiary foundation.
Insufficient information has been placed before me.
18 Minister of Safety and Security v Tyu/u 2009 (5) SA 85 (SCA) para 26.
11
ORDER
[23] In the result, the following order is made:
1. The claim for malicious prosecution is dismissed.
2. The claim for assault is dismissed.
3. The first respondent is ordered to pay the first applicant the amount
of R350 000, with interest at the prescribed rate from date of
judgment to date of payment.
4. The first respondent is ordered to pay the second applicant the
amount of R300 000, with interest at the prescribed rate from the
date of judgment to date of payment.
5. The first respondent is ordered to pay the costs of this action,
excluding any costs relating to prior proceedings not forming part of
this record.
SC MIA
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Appearances:
On behalf of the applicant
Instructed by
On behalf of the respondent
Instructed by
Date of hearing
Date of judgment
12
: Mr H.C Makhubele
: H.C Makhubele Incorporated
reception@hcmakhubeleinc .co.za
: NO APPEARANCE
: Mr D Lebenya (Johannesburg State
Attorneys)
DLebenya@justice .gov .za
: 25 July 2025
: 8 May 2026