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JUDGMENT
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MARUMOAGAE AJ:
A INTRODUCTION
1. I wish to apologise to the parties for the delays associated with the delivery of this
judgment. In this matter, the Plaintiff instituted an action against the First Defendant
for unlawful arrest and detention. He claims an amount of R 3 000 000.00 (three
million rands). The Plaintiff is also suing the Second Defendant for malicious
prosecution and claims payment of R 1 000 000.00 (one million rand) . In both
claims, the Plaintiff claims 10% per annum. As such, the court is required to
determine whether the Plaintiff was unlawfully arrested and detained and whether
he was maliciously prosecuted.
2. While it was clear that the Plaintiff had the onus to prove his malicious prosecution
claim, it was less clear which party bore the onus for the unlawful arrest and
detention claims, an issue that also requires determination by the court . The trial
proceeded on both the merits and the quantum. Both defendants are cited herein
and sued in their official capacities.
B BACKGROUND
i) Common Cause Facts
3. The Plaintiff was the only witness who testified in support of his case . The First
Defendant called two witnesses, and the Second Defendant called three
witnesses. On or about 28 December 2017, at or near Dynamo Street, Power Park,
Pimville Soweto, the Plaintiff was arrested by members of the First Respondent.
The arrest led to the Plaintiff's detention at Kliptown Police Station. The Plaintiff’s
first appearance was on 2 January 2018 at the Lenasia Magistrates Court.
4. The police officers who arrested and detained the Plaintiff were acting on behalf of
the First Defendant and did so in the scope of their employment with the First
Defendant. Equally so, the prosecutors who prosecuted the Plaintiff did so in the
scope of their employment with the Second Defendant.
ii) Plaintiff’s Case
5. The Plaintiff testified that on 28 December 2017, at or around 6:00 am, he took his
dog for a walk to the mountain in Pimville, Soweto. After spending about four hours
at the mountain, he saw the complainant, whom he did not know at the time. The
complainant was holding stones in his hands and walking towards the Plaintiff’s
direction. The Plaintiff was looking at the complainant and realised that the
complainant wanted to attack him . The Plaintiff decided to run away from the
complainant. He ran towards the area where security officers were standing, and
the complainant ran after him. The complainant threw stones at the Plaintiff while
chasing him. When the Plaintiff got to the security guards, the complainant dropped
the stones.
6. The complainant got to where the Plaintiff was standing and an argument ensued
between them. The security guards asked them what happened between them.
The complainant told the security guards that the Plaintiff robbed him of his
cellphone and R 50.00 with a knife. The Plaintiff denied this allegation. Community
members were also present when the Plaintiff and the complainant were arguing.
The Plaintiff was holding his dog with a rope. He removed the rope from the dog to
let the dog to go to his house . The Plaintiff fought with the complainant . The
complainant tried to remove the rope from the Plaintiff’s hand to tie the Plaintiff with
it around his neck. The complainant alleged that the Plaintiff placed the cellphone
and money in his boots, then demanded that the Plaintiff remove his boots, but the
Plaintiff refused.
7. After a while, two police offic ers arrived. The complainant repeated the robbery
7. After a while, two police offic ers arrived. The complainant repeated the robbery
allegations to these police offic ers. One of the police officers asked to search the
Plaintiff. The Plaintiff agreed to remove his boots for the police officers to see that
he did not have the items allegedly taken from the complainant. The police officers
searched the Plaintiff and found nothing on the Plaintiff. The Plaintiff also told the
police officials that he had also lost his small cellphone in the mountain. The police
officers, together with about twelve community members, went up the mountain to
look for the robbed items. They did not find anything on their way up , and also
could not find anything when they went down the mountain. The Plaintiff was also
looking for his lost cellphone, which he had lost while running away from the
complainant.
8. When they reached the base of the mountain, one of the police officers handcuffed
the Plaintiff. The police officer concerned informed the Plaintiff that he was being
arrested for robbery. This police officer asked where the Plaintiff resided. The
Plaintiff gave the police officers directions to his home, which was about 600
meters from the mountain. The police officers took the Plaintiff to his home, where
they met the Plaintiff’s 92-year-old grandmother. The police officers informed the
Plaintiff’s grandmother that the Plaintiff had been arrested for robbery and asked
whether the Plaintiff resided in that house . The Plaintiff’s grandmother confirmed
that she resided with the Plaintiff.
9. According to the Plaintiff, his rights were not read out to him . The police officers
arrested him and took him to the Kliptown Police Station, where he was detained
without being charged. The Plaintiff testified that the conditions of the cell where
he was detained were appalling. He was given a dirty blanket that smelled badly.
These blankets also had blood stains. He was also given a very thin mattress to
sleep on. Nonetheless, he was provided food while in detention. Despite being
arrested on Thursday, 28 December 2017, he was only charged on Saturday, 30
December 2017, which made it difficult for him to apply for bail at the police station
or be taken to court on Friday, 29 December 2027, to apply for bail.
10. The Plaintiff was only taken to the Lenasia Magistrates' Court on Tuesday, 2
January 2018, for his first appearance. In his testimony, the Plaintiff reiterated that,
because the event occurred more than 7 years ago, he did not clearly remember
because the event occurred more than 7 years ago, he did not clearly remember
certain issues. He testified that the bail issue was not canvassed when he first
appeared before the magistrate. However, it was correctly put to the Plaintiff during
cross-examination that the magistrate informed him that he is entitled to apply for
bail. However, the bail application could not proceed because the Plaintiff was
charged with a Schedule 6 offence and bail had to be applied for formally. Further,
the Plaintiff chose to apply for legal aid, which had to be confirmed first.
11. The matter was postponed for the first time to 10 January 2018. On this date, legal
aid and the Plaintiff’s address had not yet been confirmed . The case was
postponed for the second time to 24 January 2018. On this date, legal aid had been
confirmed, and the Plaintiff formally applied for bail. Bail was refused because the
magistrate found that the Plaintiff did not prove exceptional circumstances
warranting release on bail. The Plaintiff also has a previous conviction and a
pending case. The matter was pos tponed for the third time to 28 March 2018 for
further investigations . The Plaintiff was taken to the Johannesburg Correctional
Centre, which is known as Sun City. When he arrived at Sun City, he was placed
in a cell with more than 50 people. At times, he slept on the floor. He was forced to
share the cell with awaiting prisoners who smoked cigarettes and drugs , even
though he does not smoke. There was a food shortage at Sun City.
12. The Plaintiff further testified that after the dismissal of his bail application, his legal
aid attorney withdrew . He employed a private attorney. The Plaintiff’s case was
transferred to the Protea Magistrates Court and was subjected to several
postponements. The case was postponed to these dates: 28 March 2018; 30 May
2018; 7 June 2018; 26 June 2018; 7 July 2018; 27 July 2018 and 29 August 2018,
for a variety of reasons which included further investigations; provision of the
copies of the docket; trial; and the complainant’s failure to come to court. According
to the Plaintiff, the complainant never appeared in court on a ny of the dates on
which the matter was heard. On 29 August 2018, the charges against the Plaintiff
were withdrawn.
13. The Plaintiff further testified that before his arrest, he had a shop which was full of
stock. Due to his arrest, he lost his shop. He has a 20-year-old child who was about
13 years old at the time. The child was troubled by not seeing him at home. The
13 years old at the time. The child was troubled by not seeing him at home. The
private lawyer the Plaintiff hired had to be paid despite the Plaintiff's detention. He
had to settle the legal fees after he was released. It was argued on behalf of the
Plaintiff that the arrest reduced his dignity in the community.
iii) The first Defendant’s case
14. Sergeant Mantlhaga was the first witness who testified on behalf of the First
Defendant. He testified that he is the police officer who arrested the Plaintiff. On
the day of the incident, he was patrolling with his crew member, Warrant Officer
Tshabalala. They were stopped by an unknown person, later identified as Mr Zolani
Mini, while driving around the University of Johannesburg in Soweto. Mini informed
them that someone was being chased by the community at the mountain, which
was not far from where we were stopped. They drove towards the mountain and
met the complainant and several community members. The complainant informed
them that they chased and caught the Plaintiff after robbing people of their
belongings with a knife. The complainant pointed at the Plaintiff as the person who
robbed him of his cellphone and money. Mini informed Mantlhaga and Tshabalala
that he was willing to serve as a witness in this case because he ha d witnessed
everything that happened.
15. Mantlhaga testified that he asked the Plaintiff as to where the complainant’s phone
was and the Plaintiff replied that he did not know. The complainant informed
Mantlhaga that he wanted to open a case . Manthlaga informed the Plaintiff of his
rights and arrested him. Mini told Mantlhaga that he had seen everything that
happened during the robbery . Mantlhaga testified further that he handcuffed the
Plaintiff and put him into his unmarked car to take him to the police station. He also
took the complainant to the Kliptown police station. He arrested the Plaintiff
because he reasonably suspected that he had committed the alleged crime. The
complainant opened the case, and Mini made a witness statement.
16. Mantlhaga refuted the allegation that at any point on the day the Plaintiff was
arrested, he went up the mountain to search for the complainant’s cellphone. He
also disputed that he took the Plaintiff to his residence. He testified that there was
no way he was going to go to the Plaintiff’s residence while they were with the
complainant. Under cross -examination, Mantlhaga testified that he searched the
Plaintiff and f ound nothing on him. However, he testified further that he did not
remember whether he asked community members at the scene who allegedly
remember whether he asked community members at the scene who allegedly
apprehended the Plaintiff whether they found the items that were allegedly robbed
from the complainant. He testified that he did not see a point in further investigating
the crime's circumstances. He testified that he was only concerned with the arrest
and that the investigation would follow. He further testified that he was informed
that the Plaintiff was with other suspects who outran the community members who
were trying to apprehend them.
17. The second witness called by the First Defendant was Sergeant Ellen Mampitla
Mofokeng. She is the police officer who was assigned to investigate the case.
Mofokeng testified that she found the Plaintiff in the cell on the day the Plaintiff was
arrested. Even though she could not comment on the status of the blankets used
by the Plaintiff, she knows that the blankets in the holding cells are usually washed.
She received the Plaintiff’s docket on 28 December 2017. She met with the
complainant on the same day. The complainant made a statement and informed
her that he was robbed of his cellphone and money by three males. The community
apprehended the Plaintiff, while the other two suspects fled.
18. In her statement that was placed in the docket, Mofokeng stated that the
complainant was robbed by three men, two of whom were arrested and attending
court. After being challenged on this aspect during cross-examination, she pointed
out, under re -examination, that it was an error. She further stated that the
complainant was made to sign two pointing out statements. The first statement was
dirty because ink spilled on it, and she was forced to take the second statement.
19. The second statement was derived from a black document given to the
complainant to sign, which was later completed by Mofokeng. The complainant
informed her that the Plaintiff was identified by his green and yellow cap. The
complainant informed Mofokeng that Mini witnessed the robbery . However,
Mofokeng could not find Mini. On 30 December 2017, Mofokeng charged the
Plaintiff at 13:30 after visiting the area where the robbery allegedly occurred and
finding nothing useful to advance the case . The complainant informed Mofokeng
that he could not come to court because he had relocated to Limpopo.
iv) The second defendant’s case
20. The first witness who testified on behalf of the Second Defendant was Mdluli, a
Regional Court Control Prosecutor at Lenasia Magistrates Court . Mdluli received
the Plaintiff’s docket on 2 January 2018. He went through the docket and placed
the matter on the roll after analysing the evidence. He was satisfied that the crime
of robbery had been committed and that the complainant had identified the Plaintiff
of robbery had been committed and that the complainant had identified the Plaintiff
as the perpetrator . He noted that neither the items taken nor the knife that was
allegedly involved in the robbery were found by the police. However, he testified
that it was not uncommon in robbery cases to not receover stolen items.
21. The docket also indicated that there was a person who witnessed the robbery.
From the information in the docket, Mdluli concluded that the state had a
reasonable prospect of a successful prosecution because all the elements of
robbery with aggravated circumstances were present. He stated that the
information on the docket revealed that a knife was used in the alleged robbery.
The offence was committed around 9:00 in the morning. The complainant had time
to observe the Plaintiff and identified him as wearing a yellow cap. The complainant
also identified the Plaintiff through his gold tooth.
22. The second witness called by the First Defendant was Mthunzi Blessing Mchunu.
He was the prosecutor who appeared for the state on the Plaintiff’s first appearance
in the Lenasia Magistrates Court. The Plaintiff was charged with robbery with
aggravating circumstances. Mchunu testified that the Plaintiff was informed of his
rights and asked whether he would apply for legal aid. The Plaintiff elected to apply
for legal aid. The Plaintiff was charged with a schedule 6 offence and the state
opposed bail. He testified that the matter was postponed for confirmation of legal
aid and the Plaintiff’s address, as well as obtaining the Plaintiff’s profile. The case
was remanded to 10 January 2018.
23. The Plaintiff’s address was eventually confirmed, and the profile was also received.
The profile indicated that the Plaintiff has a previous conviction, but did not list any
pending cases. Mchunu told the court that, while he was testifying, the Plaintiff told
the magistrate he had a pending case. On 10 January 2018, legal aid had not yet
been confirmed, and the matter was postponed to 24 January 2018 for a formal
bail application. Mchunu conceded that the wrong schedule was used against the
Plaintiff. He testified that instead of schedule 6, the Plaintiff ought to have been
charged with a schedule 5 offence.
24. However, Mchunu insisted that the Magistrate considered and concluded that it
was not in the interest of justice to release the Plaintiff on bail. This is because the
Plaintiff had a previous conviction of assault GBH . The matter was postponed
Plaintiff had a previous conviction of assault GBH . The matter was postponed
again to 24 January 2018 to confirm legal representation by the state and to
proceed with the bail application. According to Mchunu, o n 24 January 2018, the
Plaintiff applied for bail and stated that he had a pending case and a prior
conviction. Bail was denied because he could not prove exceptional circumstances
warranting release on bail.
25. The third witness called by the Second Defendant was Tumelo Maunye was the
prosecutor who represented the state against the Plaintiff on 28 March 2018. He
testified that legal aid was confirmed for the Plaintiff, but the Plaintiff chose to use
a private attorney. Bail was not fixed, and the Plaintiff was remanded in custody for
further investigations. When the matter was brought back to court on 24 April 2018,
the Plaintiff’s private attorney did not appear. The investigations were finalised and
the matter was postponed to 30 May 2018 for the contents of the docket to be given
to the Plaintiff’s attorney. The Plaintiff was also remanded in custody. On 30 May
2018, the Plaintiff’s attorney was in court, and he confirmed receipt of the contents
of the docket. The matter was transferred to the Protea Regional Magistrates' Court
for the allocation of the trial date and postponed to 7 June 2018.
26. The final witness called by the Second Defendant was Zanda William Mthimunye,
who was the Acting Senior Public Prosecutor. According to Mthimunye, the matter
was set down for trial on 26 June 2018, and the complainant was not present in
court. The matter was then postponed to 27 July 2018, and the complaint also did
not come to court. It was postponed again to 29 August 2018, and the complainant
also failed to appear on that date. Mthimunye testified that the docket indicated
that the investigating officer unsuccessfully attempted several times to subpoena
the complainant to attend court. He noted from the docket that the complainant had
relocated to Limpopo and would not be coming to court. Because the docket
indicated that the complainant was uncooperative, Mthimunye decided to withdraw
the charges.
C LEGAL FRAMEWORK
i) Onus
27. It was surprising that the issue of onus in relation to unlawful arrests and
detentions raises some controversy. There appear to be two judicial schools of
thought on this issue. The first school of thought advances a view that the
‘claimants’ in these matters bear the onus of proving that their arrests and
detentions were unlawful. The full court of the High Court in Botha v Lues was of
the view that the Plaintiffs, who alleged to have been wrongfully arrested, bore the
the view that the Plaintiffs, who alleged to have been wrongfully arrested, bore the
onus to establish the unlawfulness of such arrest.1 The court was of the view that
to succeed with the damages claim, the arrested person was obliged to prove that
there were no reasonable grounds to suspect that an offence was committed.2
1 1981 (1) SA 687 (O) 591.
2 Ibid. The court reasoned as follows ‘[h]ierinlater sal aangetoon word dat 'n verkeersinspekteur nie
alleen statutêr gemagtig is nie maar ook ampshalwe verplig is om 'n motorbestuurder te arresteer wat
28. In Sihlali v Minister of Police, it was held that ‘[c]onsidering that the claims were
denied from the onset, the trial proceeded on the basis that the plaintiff bore the
onus of proving unlawful arrest, search and detention’. 3 Similarly, in Njikelana v
Minister of Police and Another, the court outlined that it was required to determine
‘… whether the plaintiff's detention after his first court appearance was unlawful
and attributable to the defendants; and second, whether the prosecution of the
plaintiff was malicious ’ and concluded that ‘[t] he plaintiff bears the onus on both
claims’.4
29. In Hassien v Minister of Police for the Republic of South Africa and Others , the
court noted that ‘[t]he parties agreed that the plaintiff bears the onus of proof and
duty to begin in all the claims’ .5 In Naves and Another v Minister of Police and
Another, the court was confronted with an unopposed claims for unlawful arrest,
unlawful detention and malicious prosecution and it held that ‘… the plaintiffs bear
the onus to establish, on a balance of probabilities, each element of the causes of
action advanced’.6 It was also stated in L.N v Minister of Police and Another , that
‘[t]he plaintiff bears the onus to prove its case’.7
30. The second school of thought advances a view that a person accused of unlawful
arrest and detention bears the onus to prove that both the arrest and detention
were lawful. In Mlisa v Minister of Police and Another , it was held that ‘[t]he onus
rested on the first defendant to justify the plaintiff’s arrest and detention’.8 In Mohale
and Another v Minister of the South African Police Service , it was held that ‘[t]he
defendant bears the onus to prove that the arrest and detention of the first and
second plaintiffs were lawful’.9
op redelike gronde verdink word nie sober te wees nie. Bestaan daar sodanige gronde kan die
arrestasie nie onregmatig wees nie hoe krenkend dit ookal vir die gearresteerde mag wees want
arrestasie nie onregmatig wees nie hoe krenkend dit ookal vir die gearresteerde mag wees want
uitoefening van 'n bevoegdheid (en plig) wat van regsweë verleen word kan nie wederregtelikheid
daarstel nie. Is qui jure publico utitur non videtur injuriae faciendae causa hoc facere (D 47.10.13.1) en
qui suo jure utitur nemini facit injuriam (D 50.17.55 en 155; 9.2.5.1). Omrede dus, soos hierbo
aangetoon, die onregmatighe idselement 'n aanspreeklikheidsvereiste is kan die gearresteerde
gevolglik alleen sukses behaal indien hy daarin kan slaag om te bewys dat daar nie die bedoelde
redelike gronde vir verdenking bestaan het nie. Hy dra dus die risiko van nie -oortuiging, of an ders
gestel, die onus om te bewys dat die arrestasie onregmatig was’.
3 (1012/2020) [2025] ZAECMHC 79 (21 August 2025) para 6. The court further stated ‘[t]hese are civil
proceedings and the plaintiff bears the onus to prove his case on a balance of probabilities’ [para 25].
4 (16845/2018) [2026] ZAWCHC 98 (4 March 2026) para 4.
5 (612/2019) [2025] ZAECMHC 120 (18 November 2025) para 5.
6 (2020/18097) [2026] ZAGPJHC 485 (8 May 2026) para 1.
7 (22/19815) [2025] ZAGPJHC 710 (22 July 2025) para 24.
8 (1342/2021) [2026] ZAECMHC 12 (17 February 2026) para 10.
9 (1440/2020) [2025] ZANWHC 209 (3 November 2025) para 42. The court emphasised that ‘[i]t is trite
that where a defendant denies the unlawfulness of an arrest, that defendant bears the onus to prove
that the arrest was lawful’ [para 5].
31. In Minister of Law and Order v Hurley , Rubie CJ , writing unanimously for the
Appellate Division (as it then was), after criticising cases that held that people who
were arrested have the onus to prove that the arrest was unlawful, authoritatively
held that:
‘[a]n arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems to be fair and just to require that the
person who arrested or caused the arrest of another person should bear the
onus of proving that his action was justified in law’.10
32. Hendricks JP in Maritz v Minister of Police , held that ‘[t]he defendant bears the
onus to justify the lawfulness of the arrest, as an arrest is prima facie unlawful and
an invasion of a person's constitutional right to freedom and liberty. The defendant
also bears the duty to begin’ .11 It was also held in Obini v Minister of Police , that
‘[t]here is nothing prohibiting a peace officer to arrest a person without a warrant.
However, such arrest must be within the confines of the law and the onus rests
upon the arresting officer to prove the lawfulness thereof’.12
33. The Constitutional Court in Zealand v Minister for Justice and Constitutional
Development and Another, held that:
‘[i]t 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’.13
34. Unlike unlawful arrest and detention cases, it does not appear as if there is any
controversy as to who bears the onus in malicious prosecution cases. It is generally
accepted that the onus regarding malicious prosecution rests on the Plaintiff.14 This
exposition of the law has received academic endorsement. According to Okpaluba
10 1986 (3) SA 568 (A) 589.
11 661/2021) [2025] ZANWHC 8 (15 January 2025) para 1.
10 1986 (3) SA 568 (A) 589.
11 661/2021) [2025] ZANWHC 8 (15 January 2025) para 1.
12 (996/2021) [2025] ZANWHC 167 (29 August 2025) para 6. See also generally Ntombela v Minister
of Police (23541/2018) [2025] ZAGPJHC 1064 (24 October 2025).
13 2008 (6) BCLR 601 (CC); 2008 (2) SACR 1 (CC); 2008 (4) SA 458 (CC) para 25
14 See Thusi v Minister of Police and Another (KP58/2018) [2025] ZANWHC 99 (11 June 2025) para 1.
See also Dukulae v Minister of Police (885/2024) [2025] ZANWHC 129 (25 July 2025) para 2. See also
This position has received support in several judgments in South Africa such as Banda v Minister of
Police and Another (58/2023) [2025] ZANCHC 86 (5 September 2025) para 9 and 10 as well as
Mkhabela v Minister of Police and Another (829/2023) [2025] ZAMPMBHC 71 (6 August 2025) para 20,
where it was stated that ‘[d]etention is, in and by itself, unlawful. The onus rests on the detaining officer
to justify it’.
‘[i]n malicious prosecution the burden of proof is on the plaintiff, who must show
that all four elements developed by the courts over the years are present’.15
ii) Unlawful Arrest and detention
35. Section 12(1) of the Constitution of the Republic of South Africa, 1996
(‘Constitution’), provides that
‘Everyone has the right to freedom and security of the person, which
includes the right—
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial’.
36. The Constitutional Court in Mahlangu and Another v Minister of Police, held that
‘[t]he prism through which liability for unlawful arrest and detention should
be considered is the constitutional right guaranteed in section 12(1) not to
be arbitrarily deprived of freedom and security of the person. The right not
to be deprived of freed om arbitrarily or without just cause applies to all
persons in the Republic. These rights, together with the right to human
dignity, are fundamental rights entrenched in the Bill of Rights. The state is
required to respect, protect, promote and fulfil th ese rights, as well as all
other fundamental rights. They are also part of the founding values upon
which the South African constitutional state is built’.16
37. In terms of section 35(1)(d) of the Constitution:
‘Everyone who is arrested for allegedly committing an offence has the right—
to be brought before a court as soon as reasonably possible, but not later
than—
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the 48 hours, if the 48
hours expire outside ordinary court hours or on a day which is not an
ordinary court day’.
15 ‘Reasonable and Probable Cause in the Law of Malicious Prosecution: A Review of South African
and Commonwealth Decisions’ (2013) 16 PER / PELJ 241 at 247. See also Sandow v National Director
of Public Prosecutions (A93/2023; 82114/2017) [2025] ZAGPPHC 171 (18 February 2025) para 7.
of Public Prosecutions (A93/2023; 82114/2017) [2025] ZAGPPHC 171 (18 February 2025) para 7.
16 2021 (7) BCLR 698 (CC); 2021 (2) SACR 595 (CC) para
38. In terms of section 35(2)(e) of the Constitution:
‘[e]veryone who is detained, including every sentenced prisoner, has the
right to conditions of detention that are consistent with human dignity,
including at least exercise and the provision, at state expense, of adequate
accommodation, nutrition, reading material and medical treatment’.
39. The Constitutional Court in De Klerk v Minister of Police, held that
‘The deprivation of liberty, through arrest and detention, is per se prima facie
unlawful. Every deprivation of liberty must not only be effected in a
procedurally fair manner but must also be substantively justified by
acceptable reasons. … What matters is whether, substantively, there was
just cause for the later deprivation of liberty. In determining whether the
deprivation of liberty pursuant to a remand order is lawful, regard can be had
to the manner in which the remand order was made’.17
40. Section 40(1) of the Criminal Procedure Act18 provides that:
‘A peace officer may without warrant arrest any person whom he reasonably
suspects of having committed an offence referred to in Schedule 1, other
than the offence of escaping from lawful custody’.
41. In Damoyi v Minister of Police,19 it was held that
‘[i]n terms of our law arrest and detention without a warrant is prima
facie unlawful unless it fits the exceptions outlined under s 40 (1) of
the Criminal Procedure Act 51 of 1977 (the CPA)’.
42. The Appellate Division (now Supreme Court of Appeal) in Duncan v Minister of
Law and Order,20 held that:
‘It may, however, be conducive to clarity … the basis on which an apparently
lawful arrest may yet be held to be unlawful, is considered.
17 2019 (12) BCLR 1425 (CC); 2020 (1) SACR 1 (CC); 2021 (4) SA 585 (CC) para 62.
18 51 of 1977
19 (628/2023) [2026] ZAECMKHC 3 (20 January 2026) para 13.
20 1986 (2) SA 805 (A)
The so-called jurisdictional facts which must exist before the power
conferred by s 40 (1) (b) of the present Act may be invoked, are as follows:
(1) The arrestor must be a peace officer.
(2) He must entertain a suspicion.
(3) It must be a suspicion that the arrestee committed an offence
referred to in Schedule 1 to the Act (other than one particular
offence).
(4) That suspicion must rest on reasonable grounds. If the jurisdictional
requirements are satisfied, the peace officer may invoke the power
conferred by the subsection, ie, he may arrest the suspect. In other
words, he then has a discretion as to whether or not to exercise that
power (cf Holgate-Mohammed v Duke [1984] 1 All ER 1054 (HL) at
1057). No doubt the discretion must be properly exercised. But the
grounds on which the exercise of such a discretion can be questioned
are narrowly circumscribed’.
43. In Gwejela v Minister of Police and Another, it was held that
‘[a] suspicion, by definition, means the absence of certainty. In its ordinary
meaning it is a state of conjecture or surmise where proof is lacking. The
officer in question need not be convinced that the information in their
possession was sufficient to c ommit for trial or convict, or to establish a
prima facie case for conviction, before making the arrest. Suspicion arises
at or near the starting point of an investigation of which the obtaining of
prima facie proof is the end. When such proof has been obtained, the police
case is complete; it is ready for trial and passes on to its next stage’.21
44. It was emphasised in Mahlaba v Minister of Police, that ‘[a] suspicion that a person
committed an offence must rest on reasonable grounds’.22 In Lasteless v Minister
of Police, it was held that ‘[t]he suspicion must be genuinely held and must be
objectively reasonable having regard to the information available to the officer at
the time’.23 In Nyarende v Minister of Police, it was held that:
the time’.23 In Nyarende v Minister of Police, it was held that:
‘[i]t is trite that the grounds of justification must be exercised objectively. The
section requires suspicion and not certainty. However, the suspicion must
be based upon solid grounds; otherwise, it would be arbitrary. The test is
21 (577/2021) [2025] ZAECBHC 28 (28 October 2025) para 6b.
22 (Appeal) (A2024/094541) [2026] ZAGPJHC 24 (14 January 2026) para 24.
23 (688/2021) [2025] ZANWHC 221 (14 November 2025) para 21.
whether a reasonable man in the position of the arresting officer and
possessed of the same information would have considered that there were
good and sufficient grounds for suspecting that the Plaintiff committed the
offence/s’.24
iii) Malicious Prosecution
45. The Supreme Court of Appeal in Minister of Justice and Constitutional
Development and Others v Moleko, held that
‘In order to succeed (on the merits) with a claim for malicious prosecution, a
claimant must allege and prove –
1. that the defendants set the law in motion (instigated or instituted the
proceedings);
2. that the defendants acted without reasonable and probable cause;
3. that the defendants acted with ‘malice’ (or animo injuriandi); and
4. that the prosecution has failed’.25
D. EVALUATION
i) Overview
46. It is a constitutional imperative to assess delictual cases against the Minister of
Police and the National Prosecuting Authority, the First and Second Defendants in
this matter, through a constitutional lens. This is because the se important
institutions have been constitutionally entrusted with enormous power to interfere
with the liberty of everyone who finds themselves within the borders of South
Africa, who is suspected or accused of having committed a crime. It is for this
reason that there should be effective checks and balances to ensure that officials
who act on behalf of these institutions do not arbitrarily interfere with the liberty of
those accused of committing crimes. Most importantly, where it is justified for those
employed by these institu tions to interfere with the liberty of those accused of
criminality, they must follow constitutionally permissible procedures to avoid
unwarranted and unjustified infringement of rights.
24 (2678/2020) [2025] ZAMPMBHC 58 (20 June 2025) para 15
25 [2008] 3 All SA 47 (SCA); 2009 (2) SACR 585 (SCA) para 8.
47. Where police officials and prosecutors who act on behalf of the First and Second
Defendant fail to follow correct procedures or neglect to do their work as required,
claims for unlawful arrest and malicious prosecution are likely to follow vicariously
against the Minister of Police and the Director of National Prosecuting Authority ,
respectively. The facts of this case demonstrate the unfortunate reality to which
some members of the South African Police Service and the National Prosecuting
Authority are subjecting arrested and accused persons . This case illustrates how
easy it is for people in South Africa to be arrested and detained, subjected to the
intrusive criminal justice system, and later released as if nothing had happened,
without any trial or conviction. The Plaintiff’s liberty was interfered with through
arrest, and he was detained in the police cells, only to have his case withdrawn
after eight months and two days, which amounts to a total of 333 days.
ii) Onus
48. When the trial began, even though the Plaintiff led his evidence first, it was not
particularly clear who bore the onus of proof for unlawful arrest and unlawful
detention claims. It appears that this issue remains the point of confusion in South
Africa. In Njikelana v Minister of Police and Another, it was held that ‘[t]he plaintiff
bears the onus of proving that his detention was unlawful. However, it is trite that
once an arrest and detention are admitted or proved, the defendant bears the onus
of justifying the arrest’ .26 It is difficult to understand how the arrested person who
brings a delictual claim against the state for unlawful arrest and detention by its
officials can be said to bear the onus of proving that the arrest and detention were
unlawful.
49. The approach that persons who bring unlawful arrest and unlawful detention claims
bear the onus of proving that their arrests were unlawful is based on the trite
bear the onus of proving that their arrests were unlawful is based on the trite
principle of ‘he who alleges must prove’ .27 This principle was articulated by the
Constitutional Court as follows:
‘[t]he onus is on the applicants, as the alleging parties, to establish a prima
facie case for the respondents to answer. The key question is whether there
is sufficient evidence adduced to establish a prima facie case that their
claims are correct. If a t the conclusion of the case, their evidence is
26 (16845/2018) [2026] ZAWCHC 98 (4 March 2026) para 49.
27 Motsoane v Legal Aid South Africa and Others (3449/2023; 5153/2022) [2024] ZAFSHC 267 (26
August 2024) para 8.
inconclusive or the probabilities are evenly balanced, the applicants cannot
succeed with their claims, as they would not have discharged the onus
resting on them’.28
50. However, this general principle does not apply to unlawful arrests and unlawful
detention cases when the arrest was effected without a warrant. This is because
the claim is not about the arrest. In fact, arrest in these cases is usually a factual
issue that requires no proof, particularly when the accused is in detention. There
is often no dispute, none whatsoever, that the person who is claiming from the
Minister of Police was arrested. The issue is usually the unlawfulness of the arrest.
The starting point is that the arrest is prima facie unlawful until proven lawful. This
automatically burdens those who effect arrests to prove the lawfulness thereof.
Placing the onus on the Minister of Police, rather than on the person who claims
the arrest was unlawful, was a deliberate policy decision to burden those with
authority to interfere with the fundamental right to liberty with the task of explaining
and justifying the lawfulness of such infringement.
51. This policy decision was explained and confirmed by the Constitutional Court in
Zealand v Minister for Justice and Constitutional Development and Another , that
the onus is placed on the authority that has the power to interfere with physical
liberty because ‘… every interference with physical liberty is prima facie unlawful’.29
The onus arises once it has been established that police officials effected an arrest
and detained a person within the scope and course of their employment. In Tlhone
v Minister of Police, it was correctly held that ‘[o]nce a plaintiff establishes the fact
of arrest, the onus shifts to the defendant to justify the lawfulness of that arrest’.30
52. Having regard to the Constitutional Court and Appellate Division’s (as it then was)
judgments in Zealand and Hurley, there can be no doubt that the school of thought
judgments in Zealand and Hurley, there can be no doubt that the school of thought
that those who claim to have been unlawfully arrested and unlawfully detained by
the police in South Africa bear the onus of proving the unlawfulness of such arrests
is wrong. In other words, cases that place the onus on the arrested and detained
persons to prove the unlawfulness of their arrests and detentions are wrong in law.
In the current case, since it has been established that the Plaintiff was arrested
and detained, th e onus was on the First Defendant to prove that the arrest and
28 Mncwabe v President of the Republic of South Africa and Others; Mathenjwa v President of the
Republic of South Africa and Others 2023 (11) BCLR 1342 (CC); 2024 (1) SACR 447 (CC) para 94
29 2008 (2) SACR 1 (CC); 2008 (4) SA 458 (CC) para 25.
30 (745/2020) [2026] ZANWHC 27 (12 February 2026) para 14.
detention were lawful. Unlike arrest and detention, the onus of proving malicious
prosecution was on the Plaintiff.
iii) Lawfulness of the Arrest and Detention
53. It is trite that police offic ers have the authority to arrest with or without a warrant.
But they do not have the power to arrest suspects without a valid reason. First, the
police are constrained by the Constitution, section 12 of which mandates that
everyone has the right ‘… not to be deprived of freedom arbitrarily or without just
cause’. An arrest will generally be regarded as arbitrary when it occurs without a
valid legal basis or where police officials who effect the arrest and detention
disregard due process. This will amount to undue deprivation of freedom. Nkosi
correctly states that ‘[t]here has been a general acknowledgment by the courts that
the right to liberty is one of the most important rights afforded to a person … [and]
an unlawful interference with a person’s right to liberty is not only a common law
issue, but is also a constitutional infringement’.31
54. When adjudicating unlawful arrests and detention claims, courts must be alive to
the fact that the events alleged to have led to these claims may implicate the
arrested and detained persons' right to dignity.32 In Theobald v Minister of Safety
and Security and Others, it was convincingly held that:
‘… arrest and detention of a person are a drastic infringement of his basic
personality rights, in particular the rights to freedom and human dignity, and
that, in the absence of due and proper legal authorisation, such arrest and
detention are unlawful’.33
55. Secondly, the officials of the First Defendant are constrained by section 40(1) of
the Criminal Procedure Act. This provision permits arrest without a warrant only
under circumstances where a police offi cer reasonably suspects a person they
intend to arrest of having committed an offence referred to in Schedule 1 . This
intend to arrest of having committed an offence referred to in Schedule 1 . This
means that for an arrest to be lawful, a police officer must demonstrate that, at the
time the arrest was effected, the information available to them enabled them to
form a reasonable suspicion that the person they intended to arrest committed a
schedule one offence.
31 ‘Balancing deprivation of liberty & quantum of damages’ (2013) (April) De Rebus 62.
32 Section 10 of the Constitution.
33 2011 (1) SACR 379 (GSJ) 389.
56. The crime of robbery is listed in Schedule 1 of the Criminal Procedure Act. As such,
where a police officer reasonably suspects that a suspect has committed a robbery,
an arrest can be effected without a warrant. However, the suspicion must not only
be on reasonable grounds ,34 it must also be genuinely held and objectively
reasonable, having regard to the information available to the officer at the time .35
In the current case, the arresting officer was allegedly called to the scene by Mini
and found community members at the scene. The Plaintiff’s testimony that there
were security guards at the scene was not challenged. It is not clear why the
arresting officer, when he arrived at the scene, did not speak to the security guards
to verify the allegations of robbery against the Plaintiff.
57. It also seems like the arresting officer did not seek to interrogate the information
that the complainant allegedly provided to him. It was alleged that the complainant
was robbed by three unknown men, one of whom was the Plaintiff. It is alleged that
the Plaintiff pretended to urinate and then attacked the complainant with the knife
to take his cellphone and money. There is no testimony regarding the other two
suspects' participation in the robbery. It is not clear when the Plaintiff managed to
take the cellphone and the money from the Plaintiff and what happened to those
items. Throughout the trial, there was no reference to the contents of the statement
allegedly made by Mini when the Plaintiff was arrested . Surely, one could
reasonably expect to find details of the robbery in that statement , since Mini
allegedly witnessed it. Even worse, Mini was not called to testify in this matter.
58. It remains unclear what really transpired during the robbery. Did the Plaintiff pass
the robbed items to the other suspects, and if so, when and how? At what point did
the community members chase after the three suspects? Was it after the robbery,
the community members chase after the three suspects? Was it after the robbery,
or while the robbery was in progress? Did any community members see who took
the stolen items? These questions make it difficult to conclude that the arrest was
justified. It appears that no one saw what happened to the items because, at some
point, the complainant allegedly asked to search the Plaintiff in the presence of
community members. In fact, when the arr esting officer arrived at the scene, he
searched the Plaintiff without any difficulty and found nothing on the Plaintiff.
34 Mahlaba v Minister of Police (Appeal) (A2024/094541) [2026] ZAGPJHC 24 (14 January 2026)
35 Lasteless v Minister of Police (688/2021) [2025] ZANWHC 221 (14 November 2025) para 21.
59. It is a common cause that when the arresting officer arrived at the scene, the
complainant and the Plaintiff had either spoken or were speaking with each other.
The court was told that the complainant identified the Plaintiff through his gold
tooth, clothes, and cap. It is not surprising that the complainant would use the
Plaintiff's distinctive features to identify him after arguing with him . The
complainant's version was narrated by witnesses who were not at the scene of the
robbery. Neither the complainant nor Mini was called to corroborate or verify this
version. As such, the version is purely hearsay and cann ot be used to rebut the
Plaintiff’s version.
60. It is not clear why the arresting officer, before effecting the arrest, did not speak to
the security guards to establish what happened or verify the story allegedly
narrated by the complainant. I am not convinced that the arresting officer had solid
grounds to effect an arrest. Most importantly, I am not convinced that a reasonable
man in the position of the arresting officer and assessing the ‘… same information
would have considered that there were good and sufficient grounds for suspecting
that the Plaintiff committed the offence/s’.36
61. It seems to me that the arrest was based on the general knowledge of the criminal
activities that the court was told are usually perpetrated at the place where the
Plaintiff was arrested. The arresting officer took it for granted that, because crimes
are usually perpetrated in that area, the Plaintiff must have committed the alleged
crime. It does not appear as if there was any appetite from the arresting officer to
probe the allegations further to establish good and sufficient grounds to formulate
a suspicion that the Plaintiff might have committed the alleged offence.
62. This does not mean that the evidence of the Plaintiff was perfect, but most of it
remains unchallenged. The Plaintiff is the only person who testified who was at the
remains unchallenged. The Plaintiff is the only person who testified who was at the
scene. Had the First Defendant called the complainant, Mini, any of the community
members, or any of the security guards who were at the scene, any of these
witnesses would have been in a better position to r ebut the version of the Plaintiff
in relation to the alleged robbery. Whether the Plaintiff was taken to his home after
the arrest or dire ctly to the police station is totally irrelevant to the question of
unlawful arrest and detention. What is important is that the arresting officer failed
in his duty to ascertain the circumstances of the alleged robbery to formulate a
36 Nyarende v Minister of Police (2678/2020) [2025] ZAMPMBHC 58 (20 June 2025) para 15
reasonable suspicion that the Plaintiff robbed the complainant of his items. The
First Defendant failed to discharge the onus of proving that the arrest was lawful.
It follows, therefore, that the detention was also unlawful.37
63. Crime in South Africa is out of control . Everyone who commits a crime must be
arrested and prosecuted. However, it is important to avoid a situation where people
are arrested, denied bail and detained for months to later have their cases
withdrawn as if nothing happened. The police have a constitu tional policing
mandate, which includes arresting those who are suspected of having committed
crimes. But where arrests are effected without warrants, it is important for police
officers to be slow to arrest and only do so when they have satisfied themselv es
that the arrest is justified, having regard to the provisions of section 12 of the
Constitution and section 40 of the Criminal Procedure Act. These important
constitutional and statutory safeguards were totally ignored in this case. The
arresting officer effected the arrest as part of a routine of arresting suspects without
carefully assessing whether there was a reasonable suspicion to arrest the Plaintiff
in this case.
iv) Investigation and bail
64. The Plaintiff’s unlawful arrest and detention exposed him to inhumane conditions
at the cell where he was detained at the Kliptown Police Station. The Plaintiff
testified that he was provided with dirty, blood-stained blankets and a thin mattress.
Mofokeng was unable to contradict this testimony . She could not confirm or deny
that the Plaintiff was given a dirty blanket and a thin mattress. Mofokeng merely
said she knew the blankets in the cells were generally washed. She did not indicate
when or how many times they are washed. The Plaintiff’s version remains
unchallenged in this regard. The Plaintiff was subjected to conditions of detention
that are inconsistent with human dignity.38
that are inconsistent with human dignity.38
65. Mofokeng's testimony demonstrated the lackadaisical approach of some of the
police officers within the South African Police Service. She failed to charge the
Plaintiff and bring him to court within 48 hours, despite having the opportunity to
37 See Mkhabela v Minister of Police and Another (829/2023) [2025] ZAMPMBHC 71 (6 August 2025)
para 28, where it was held that ‘I have, in casu, already found that the arrest is unlawful. No lawful
detention can follow from an unlawful arrest of the nature herein where, by the evidence of the police
officer and the prosecutrix, the plaintiff could not be linked in any way to the commission of the offence’.
See also Unity Prosper Nkabeni ‘The court erred: Unchangeable nexus between unlawful arrest and
detention’ (2026) Apr De Rebus 32.
38 Section 35(2)(e) of the Constitution.
do so. The Plaintiff was arrested on Thursday, 28 December 2017. A criminal court
was sitting on Friday, 29 December 2029. However, Mofokeng decided not to
process the Plaintiff and bring him to court for bail consideration on Friday.
66. Mofokeng testified that she wanted to investigate before bringing the accused to
court because she had 48 hours to do so. It did not occur to her that if the accused
was not brought to court on Friday, the only available opportunity to bring him to
court would be the following week, on Tuesday, 2 January 2018, because Monday
was a public holiday. Mofokeng merely saw another accused who could be brought
to court at her leisure without serious consideration of the Plaintiff’s constitutional
rights. This is to tally unacceptable. Mofokeng ought to have ensured that the
Plaintiff was brought to court at the earliest opportunity within the prescribed 48
hours.
67. As if this were not enough, Mofokeng claims to have located the complainant in
this issue and made her sign a statement, which Mofokeng later completed in her
absence. In other words, what is contained in the complainant’s statement is
information that was completed by Mofokeng after the complainant had signed a
blank document provided to him by Mofokeng. This means that the complainant
did not make a statement. However, Mofokeng did not mention this aspect in her
own statement. Mofokeng also failed to secure the comp lainant's attendance in
court. The complainant was not cooperative from the start of the case, but
Mofokeng did not indicate this in the docket before the Plaintiff’s first appearance
in court. These are important factors that would have assisted prosecutors and the
court in their bail consideration . Most importantly, Mofokeng failed to locate and
secure the so-called ‘eyewitness’ in the criminal case against the Plaintiff.
68. Even worse, Mofokeng did not bother to go and verify the Plaintiff’s address
68. Even worse, Mofokeng did not bother to go and verify the Plaintiff’s address
between 28 December 2017 and 2 January 2018, leading to the bail application
being postponed to, among others, allow Mofokeng to go and verify the Plaintiff’s
address. Surely, the verification of the ‘accused’ address is not something that
police offic ers should necessarily be instructed by the court or the prosecuting
authority to do. This is something that the investigating officer can do, particularly
when the ‘accused’ resides closer to the police station where he is detained, soon
after the arrest of the ' accused '. Address verification is an important element that
can result in bail not being granted or the hearing thereof being postponed. The
Plaintiff's address was stated in the arresting officer's statement dated 28
December 2017. Mofokeng could have gone to this address on 28 December 2018
to confirm whether the Plaintiff resided there.
69. At all times, both in the criminal proceedings and in these proceedings, everything
said about the complainant and Mini is purely hearsay. The court was informed
that the complainant could not attend the criminal case because he had relocated
to Limpopo. T his was ironic because the arresting officer is now stationed in
Limpopo but was prepared to give testimony in both the criminal court and this
court. In fact, he was one o f the witnesses who testified in this matter. The only
inference that can be drawn from this is that the complainant knew the allegations
he made against the Plaintiff were unsustainable; hence, he was not interested in
participating in either the criminal or this court.
70. Eventually, the Plaintiff was brought to court on 2 January 2018. Even though the
Plaintiff incorrectly said that bail was not considered, it is clear from the record and
testimony provided on behalf of the Second Defendant that the magistrate informed
the Plaintiff of his right to bail on this date. The information prepared by Mofokeng
indicated that the Second Defendant’s officials intended to oppose bail, and a
formal bail application had to be made. However, it is strange that the charge
against the Pla intiff was not only recorded as robbery with aggravating
circumstances due to the alleged use of the knife that was not seen by anyone or
recovered by the police but also elevated to a Schedule 6 offence. This meant that,
to be released on bail, the Plaintiff had to demonstrate that there were exceptional
circumstances warranting his release and that granting bail was in the interests of
justice. This made it even more difficult for the Plaintiff to be released on bail.
71. The prosecutor who opposed the bail application conceded that the wrong
schedule was preferred against the Plaintiff and that the Plaintiff ought to have
schedule was preferred against the Plaintiff and that the Plaintiff ought to have
faced a schedule 5 offence. What is even more bizarre is that the reasons for
classifying the charge to be a schedule 6 offence were that the accused had a
previous conviction of assault and a pending case. While the previous conviction
was established through the SAP 69 document, it does not appear that the court
probed further to understand the circumsta nces of the alleged pending case. It is
not clear from the record what this pending case was for, and Mchunu could not
assist in this regard. It remains doubtful that the Plaintiff had any pending case
when bail was considered.
72. This was a total failure of justice and a misapplication of the law. It is clear from the
Criminal Procedure Act that there are only two circumstances where robbery with
aggravating circumstances can be classified as a schedule 6 office. The first
instance is when the accused is charged with murder, when the death of the victim
was caused by the accused in committing or attempting to commit or after having
committed or having attempted to commit robbery with aggravating
circumstances.39 The second instance is when the alleged robbery involves the
use of a firearm, the infliction of grievous bodily harm , or the taking of a motor
vehicle by the accused or co-participant.40
73. The Plaintiff was neither charged with the use of a firearm nor murder that occurred
because of robbery. The use of the wrong schedule resulted in the wrong test being
applied when the Plaintiff applied for bail, leading to bail being refused. This was a
fundamental infringement of the accused’s right ‘… to be released from detention
if the interests of justice permit, subject to reasonable conditions’.41 This led to the
Plaintiff’s further unlawful detention. The fact that the accused was represented by
a legal aid attorney is of no consequence. The magistrate ought to have realised
that the accused had been forced to face a wrong schedule that would make
attaining bail difficult.
v) Malicious Prosecution
74. According to Okpaluba ‘[i]n South Africa, malicious prosecution is an aspect of
delictual liability arising from “malicious proceedings” which may occur where a
person abuses the process of the court by wrongfully or maliciously setting the law
in motion against another’.42 To be liable for the payment of damages, the person
who set the law in motion must have done so intentionally, maliciously, and without
reasonable and probable cause. In other words, a person alleging that they have
been subjected to malicious prosecution must establish that they were prosecuted
been subjected to malicious prosecution must establish that they were prosecuted
without reasonable and probable cause in circumstances where the officials of the
Second Defendant were acting with malice and that the prosecution failed.43
39 Schedule 6 of the Criminal Procedure Act.
40 Schedule 6 of the Criminal Procedure Act.
41 Section 35(1)(f) of the Constitution.
42 ‘Proof of malice in the law of malicious prosecution: A contextual analysis of Commonwealth
decisions’ (2012) 37 (2) Journal of Juridical Science 65 at 68
43 Minister of Justice and Constitutional Development v Moleko 2008 [3] All SA 47 (SCA) para 8 and
Koji v Director of Public Prosecutions [2025] 1 All SA 680 (NWM) para 21.
75. ‘Malicious prosecution consists in the wrongful and intentional assault on the
dignity of a person encompassing his good name and privacy’. 44 A claim for
malicious prosecution can only be instituted when the proceedings the Plaintiff was
subjected to have been completed, concluded , or withdrawn .45 The first
requirement is to show that prosecution proceedings were instituted against the
Plaintiff. In this case, the Plaintiff appeared in the Lenasia Magistrates Court where
he was charged with a schedule 6 offence of robbery with aggravating
circumstances. The Second Defendant set the law in motion against the plaintiff.
The first requirement is satisfied.
76. The second requirement is whether the First Defendant or its officials acted without
reasonable and probable cause. Schreiner JA in Beckenstrater v Rottcher and
Theunissen, explained the concept of ‘reasonable and probable cause’ to mean
prosecution in circumstances where ‘… there is no reasonable cause for
prosecuting’.46 He understood this to mean circumstances where the prosecution
does not have such information that would lead a reasonable man to conclude that
the Plaintiff had probably been guilty of the offence charged but nonetheless
proceeds to prosecute. 47 In this case, when the control prosecutor received the
docket, he read the ‘docket’. It is not clear which statements were on the docket
when the control prosecutor received it. It appears that the arresting officer's
statement was in the docket, together with the pointing-out statement.
77. It appears further that the decision to prosecute was made solely based on the
arresting officer’s statement, which is dated 28 December 2017. This statement is
vague at best, and no reasonable prosecutor can decide to charge based on it
without further in formation from the investigating officer. This statement merely
states that the arresting officer was stopped by an unknown person who informed
states that the arresting officer was stopped by an unknown person who informed
him that there was a person caught robbing people with a knife. There is no
information provided relating to the ‘other people’ who also robbed the
complainant. It is further stated in this statement that w hen the arresting officer
arrived there, the complainant pointed at the Plaintiff as a person who robbed him,
and that the community apprehended him.
44 Magwabeni v Liomba (198/2013) [2015] ZASCA 117 (11 September 2015) para 9.
45 ‘Reasonable and Probable Cause in the Law of Malicious Prosecution: A Review of South African
and Commonwealth Decisions’ (2013) 16 PER / PELJ 241 at 252.
46 1955 (1) SA 129 (AD) at 136A-B.
47 Ibid.
78. Nothing is said in this statement about the three people who robbed the
complainant and the two who allegedly outran the community members. There is
no indication that the arresting officer satisfied himself as to whether the alleged
robbery took place or whether the items that were robbed were recovered. Even
worse, nothing is said in the statement about the alleged knife. Objectively viewed,
the information contained in the arresting officer’s statement was wholly
inadequate to justify the prosecution. Despite this, the control prosecutor decided
to refer the matter for prosecution.
79. To make matters worse, the prosecutor in court decided to raise the stakes by
classifying the charge as a Schedule 6 offence. The prosecution viewed the alleged
robbery differently from the investigating officer. In the warning statement, the
accused was informed that he was being detained and investigated for committing
‘common’ robbery, which would have been a schedule 1 offence. To be fair, when
it was established that the Plaintiff had a previous conviction of assault, this made
the charge against the Plaintiff a Schedule 5 offence. Mchunu correctly conceded
this fact. In my view, the Second Defendant or its officials acted without reasonable
and probable cause.
80. The third requirement is to determine whether the Second Defendant (or its
officials) acted with malice. For malice to be established, it was held in Minister of
Justice and Constitutional Development and Others v Moleko, that:
‘[t]he defendant must thus not only have been aware of what he or she was
doing in instituting or initiating the prosecution, but must at least have
foreseen the possibility that he or she was acting wrongfully, but
nevertheless continued to act’.48
81. The control prosecutor, failing which, Mchunu, as the first prosecutor assigned the
task of prosecuting the Plaintiff, ought to have been aware that from the facts
placed on the docket, there was no case that justified prosecution. Mchunu, in
placed on the docket, there was no case that justified prosecution. Mchunu, in
particular, ought to have foreseen the possibility that they were acting wrongfully.
Most importantly, when they decided to oppose the bail application, they ought to
have verified which schedule was applicable to prevent the violation of the
Plaintiff’s rights. They ought not to have charged the Plaintiff with an incorrect
48 [2008] 3 All SA 47 (SCA) ; 2009 (2) SACR 585 (SCA) para 64
schedule that led to bail being denied. By so doing, they acted with malice to the
Plaintiff’s prejudice.
82. Malice is also reflected by the fact that there were several postponements in this
matter. It is not clear whether the prosecutors did not receive an update on the
investigations in this matter. It was clear from the Plaintiff’s first appearance that
the c ase was very weak against the Plaintiff. As the matter kept on being
postponed, Mofokeng struggled to get hold of both the complainant and the Mini,
the alleged eyewitness. It became clear that the complainant lost interest in the
case. Notwithstanding this, the case was dragged on for eight months while the
Plaintiff was detained. It was only after the matter was removed from Mchunu and
transferred to Protea, and following several postponements, that the charges were
ultimately withdrawn. I am convinced that the third requirement is also met.
83. Finally, it goes without saying that the charges were withdrawn and the Plaintiff
was unnecessarily and unjustifiably made to spend 8 months in detention. Surely,
the court cannot disregard this and pretend that nothing happened. No one should
be subjected to what the Plaintiff has been subjected to. Uncontested evidence
provided to the court is that the Plaintiff’s detention led to him losing his livelihood
in the form of a shop that had stock a t the time of his arrest. There is also
uncontested evidence t hat the Plaintiff has a child whom he was forced to stay
away from for 333 days in unlawful detention. The prosecution failed, and there
was a wrongful and intentional assault on the Plaintiff's dignity, encompassing his
good name and privacy. The Plaintiff was maliciously prosecuted and is entitled to
compensation.
E QUANTUM
i) Unlawful Arrest and Detention
84. It cannot be disputed that ‘… in cases involving deprivation of liberty, the quantum
of damages to be awarded is in the discretion of the trial court, to be exercised
of damages to be awarded is in the discretion of the trial court, to be exercised
fairly, and generally calculated according to what is equitable and just, and on the
merits of the case itself’. In Minister of Safety and Security v Tyulu , the SCA held
that:
‘[i]n 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’.49
85. Nugent JA in Minister of Safety and Security v Seymour , opined that Money can
never be more than a crude solatium for the deprivation of what in truth can never
be restored and there is no empirical measure for the loss’ .50 Nonetheless, it
appears to be generally accepted that when considering what just compensation
would be in relation to unlawful arrest and detention claims, courts should evaluate
the claimant’s constitutional right to freedom by reflecting on the actual facts of his
or her case to establish his or her personal circumstances, the extent and nature
of the insult to his dignity and personal worth to determine what would be fair and
reasonable compensation to award.51
86. Over the years, courts have developed useful guidelines on the exercise that
should be undertaken to determine the damages that should be awarded. Usually,
similar cases are assessed to give a sense of what might constitute just
compensation. However, each case should be determined on its own merits, as no
two cases are factually the same, and previous awards offer only guidance in
assessing general damages. 52 While the SCA did not provide a sense of the
importance of or the weight that should be placed on the factors that ought to be
considered, it nonetheless provided a list of ‘some’ of the factors that can be
considered when a court is determining damages that should be awarded in
unlawful arrest and detention claims.
49 2009 (5) SA 85 (SCA); 2009 (2) SACR 282 (SCA); [2009] 4 All SA 38 (SCA) para 26, the court further
held that ‘[h]owever our courts should be astute to ensure that the awards they make for such infractions
reflect the importance of the right to personal li berty and the seriousness 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’. See also Brits v Minister of Police & Another [2021]
ZASCA 161; 2021 JDR 2998 (SCA) para 33, where it was state that ‘Although awards of damages
made in previous decisions may serve as a guide in the consideration of an appropriate amount of
damages for the injury resulting from unlawful arrest and detention, such awards are not to be followed
slavishly, for every case must be determined on its facts. It must be borne in mind that the primary
purpose of an award of damages for unlawful arrest and detention is not to enrich the aggrieved party
but to offer him or her some solatium for their injured feelings’.
50 [2007] 1 All SA 558 (SCA); 2006 (6) SA 320 (SCA) para 12
51 Sihlali v Minister of Police (1012/2020) [2025] ZAECMHC 79 (21 August 2025) para 39
52 See generally Protea Assurance Co Ltd v Lamb 1971(1) SA 530 (A) 535.
87. These factors include: the number of days the claimant was incarcerated; the
circumstances under which the arrest and detention occurred ; the presence or
absence of improper motive or malice on the part of the defendant; the conduct of
the defendant; the nature of the deprivation; the status and standing of the Plaintiff;
the presence or absence of an apology or satisfactory explanation of the events by
the Defendant; awards in comparable cases; publicity given to the arrest; the
simultaneous invasion of ot her personality and constitutional rights; and the
contributory action or inaction of the plaintiff.53 This is not a closed list.
88. When determining the compensation that ought to be awarded, the SCA in Diljan
v Minister of Police , among others, considered: the condition of the police cell in
which the claimant was detained , which was filthy with no hot water; dirty and
smelling blankets she was given; and the blocked toilet without toilet paper. 54 In
Rahim v The Minister of Home Affairs, the SCA found that the circumstances under
which the deprivation of liberty took place, the conduct of the Defendants, and the
nature and duration of the deprivation were important factors to be considered
when determining the amount of compensation.55
89. Apart from awards in previous cases, it is not clear how these other factors assist
in quantifying the compensation that ought to be awarded. The main challenge is
that judges are generally trained to assess the facts and apply the law to those
facts. Not all judges have the financial or actuarial skills to accurately determine
the compensation that fits the facts before them. Some judges have extensive
experience dealing with delictual claims generally, while others may not. This
means that the process of determining what fair compensation is in each case
would differ depending on the presiding judge's expertise. Nonetheless, there is
judicial consensus that extravagant awards should be avoided.56
judicial consensus that extravagant awards should be avoided.56
90. After conducting a survey of awards in previous cases, Mocumie JA in Van der
Nest NO v Minister of Police, usefully observed that:
‘[f]rom a survey of the cases, it is reasonable to conclude, without setting a
bar, that the courts have awarded damages ranging from R15 000 to R30
53Motladile v Minister of Police (414/2022) [2023] ZASCA 94; 2023 (2) SACR 274 (SCA) (12 June 2023)
para 17.
54 (746/2021) [2022] ZASCA 103 (24 June 2022) para 22
55 2015 (4) SA 433 (SCA); [2015] 3 All SA 425 (SCA) para 27.
56 Sihlali v Minister of Police (1012/2020) [2025] ZAECMHC 79 (21 August 2025) para 39.
000 per night, with awards varying in light of the circumstances of each case.
The award must be just to reflect the importance of the fundamental
constitutional right infringed, the right to freedom of movement and
residence. And in this instance the right to dignity and privacy’.57
91. In my view, an amount of compensation per night or per day presents a useful
quantification tool for determining the just amount of compensation. However, the
challenge is that there is no useful judicial guidance on the matrix for the actual
amount of compensation to be awarded per day or per night spent in detention. It
is not clear what would justify the amount of R 15 000 rather than R 25 000.00 or
even R 30 000.00 per night as at 2021. This appears to be one of those arbitrary
decisions that judges have no choice but to make.
92. In Van der Nest NO, the claimant was arrested at 18:00 on 11 November 2019 and
released on 12 November 2019 at around 15:00. With reference to comparable
cases, following a finding of unlawful arrest and detention, the High Court awarded
compensation of R 15 000.00. The SCA was of the view that a proper assessment
of previous cases should have led the High Court to award compensation of R
30 000 rather than R 15 000. The court then considered the ‘ deterioration in the
value of the currency over the years ’ and regarded R50 000 to be an appropriate
award for the claimant’s unlawful arrest and detention in 2025.58
93. I doubt, however, if it would be just to follow van der Nest NO in this case. This is
because the determination of quantum is not an exercise of precedent but relates
to the unique facts of the case. If this approach is followed, it may result in an
extravagant award of compensation, given that the plaintiff spent 333 days in
detention. It appears to me that guidance should be sought from the Constitutional
Court’s decision of Mahlangu and Another v Minister of Police ,59 where the two
Court’s decision of Mahlangu and Another v Minister of Police ,59 where the two
claimants were unlawfully arrested and detained for eight months. The
Constitutional Court found that the Minister of Police was liable to compensate the
claimants for the entire period of their detention, from the date of their arrest to the
date of their release, amounting to eight months and ten days.60 The court ordered
57 [2025] 2 All SA 655 (SCA); 2025 (5) SA 152 (SCA) para 33.
58 Ibid paras 32 to 35.
59 2021 (7) BCLR 698 (CC); 2021 (2) SACR 595 (CC).
60 Ibid para 49.
that they should be awarded amounts of R 550 000.00 and R 500 000.00,
respectively.61 This order was made in 2021.
94. This case is comparable to the current case, with the major difference being that
in Mahlangu, the claimants were assaulted after arrest, while in th e current case,
the Plaintiff was given dirty, blood-stained blankets and a thin mattress to sleep on
while he was incarcerated, thus subjected to inhumane conditions. It is worth noting
that in Payi v Minister of Police and Another, where the claimant was subjected to
unhygienic conditions in the cells the court awarded an amount of R 800 000.00
for further detention of 30 days.62 Equally so, in Tikoe v Minister of Police awarded
compensation of R 850 000.00, for being unlawfully arrested and detained from 1
September 2022 to 15 February 2023. 63 The court ‘… considered the steady
decline in the value of money’ in 2025.
95. The factors that should be considered in the current case include the fact that the
Plaintiff was detained for 333 days; he was subjected to indignity by being forced
to sleep with dirty blankets that not only smelled badly but also were stained with
blood, thereby jeopardizing his health; the detention led to the loss of his livelihood,
even though there was no specific claim in this regard; he was forced to be away
from his child; and he was unfairly denied bail. He deserves to be compensated for
the harm he suffered. It is difficult to reconcile the amount awarded by the
Constitutional Court with that awarded in Payi.
96. In any event, if in 2021 it was considered appropriate to award R 550 000.00 to a
person who was unlawfully arrested and detained for about 8 months, it would not
be unjust to award R 900 000.00 in 2026 , in line with comparable High Court
judgments. For instance, in Ndhamini v Minister of Police and Another,64 an amount
of R 750 000 was awarded for unlawful arrest and detention claims in
circumstances where the claimant was detained for over eight months, from 22
circumstances where the claimant was detained for over eight months, from 22
January 2019 to 16 October 2019. I am not convinced that the amount of R 3
000 000 claimed by the Plaintiff is just under the circumstances.
ii) Malicious Prosecution
61 Ibid paras 56 and 57
62 (2063/2019) [2024] ZAECQBHC 14 (22 February 2024) para 74.
63 (1634/2023) [2025] ZANWHC 73 (15 April 2025) para 41.
64 (1655/2020) [2025] ZAMPMBHC 72 (6 August 2025) para 40.
97. In Nakana v Claassens and Others, the SCA held that ‘[t]he amount to be awarded
for general damages in a claim for malicious prosecution is at the discretion of the
court. The discretion is one in the true sense’.65 This court further held that:
‘[t]he factors that a court must consider in awarding general damages in a
claim for malicious prosecution include the gravity of the charges; the nature
of the prosecution; the length of time the individual was subjected to the
prosecution, absence of reasona ble and probable cause in setting the law
in motion; the presence of improper motive or malice in initiating or
instigating the prosecution; the deprivation of liberty; the status, age, and
health of the plaintiff; the publicity given to the criminal proceedings and the
absence of a reasonable explanation or apology by the defendant. This is
not a closed list’.
98. The Plaintiff was subjected to prosecution proceedings for a period of eight months
while he was under unlawful detention. The Plaintiff claimed R 1 000 000.00 for
malicious prosecution. Determining the appropriate amount of compensation for
malicious prosecution in these circumstances is also not easy. In most previous
decisions, courts appear to lack an appetite for explaining how they arrived at the
amount of compensation they awarded for malicious prosecution. They generally
provide a figure and state that the stated amount constitutes a fair and reasonable
amount of compensation for the Plaintiff’s damages resulting from his malicious
prosecution.66
99. While the factors listed in Nakana are useful, they do not necessarily assist in
arriving at the value of compensation that ought to be awarded. Nonetheless,
having regard to the duration of the Plaintiff’s detention and the conduct of the
officials of the Second Defendant’s officials in the Lenasia Magistrates Court, and
65 (137/2024) [2025] ZASCA 52 (7 May 2025) para 33.
65 (137/2024) [2025] ZASCA 52 (7 May 2025) para 33.
66 See generally Mlisa v Minister of Police and Another (1342/2021) [2026] ZAECMHC 12 (17 February
2026) para 85; Lentoro v Minister of Police and Another (936/2022) [2025] ZANWHC 50; [2025] 2 All
SA 496 (NWM) (11 March 2025) para 66, where R 200 000.00 was awarded to a claimant who was
detained for fourteen days ; Payi v Minister of Police and Another ( 2063/2019) [2024] ZAECQBHC 14
(22 February 2024) para 74 where R 300 000.00 was awarded to a claimant who was detained for thirty
days; Hassien v Minister of Police for the Republic of South Africa and Others (612/2019) [2025]
ZAECMHC 120 (18 November 2025) para 69, where 250 000 was awarded to a claimant who was
detained for three nights. Significantly lower amounts have also been awarded without any explanation
of the quantification method used. See Nakana v Claassens and Others (137/2024) [2025] ZASCA 52
(7 May 2025) para 27, where R 80 000.00 was awarded to a claimant who was detained for almost
three days; Mlisa v Minister of Police and Another (1342/2021) [2026] ZAECMHC 12 (17 February 2026)
para 85, where R 60 000.00 was awarded to a claimant who was detained for twenty two days;
Mkhabela v Minister of Police and Another (829/2023) [2025] ZAMPMBHC 71 (6 August 2025) para 53,
where R 100 000.00 was awarded was awarded to a claimant who was detained for thirty one days .
the Magistrate’s failure to ensure that the Plaintiff is charged with the correct
schedule, as well as the insistence on proceeding with prosecution for almost eight
months even though it was clear that the case was extremely weak against the
Plaintiff, a substantially higher amount of compensation is warranted. However, it
would not be just to award the amount of compensation claimed by the Plaintiff, as
it is excessive. I am of the view that a fair and reasonable amount of compensation
for malicious prosecution would be R 200 000.00.
D. CONCLUSION
100. It is worth noting that most of the testimony on behalf of the two defendants was
hearsay in nature and not helpful towards the determination of the core issues in
this matter. Most of it concerned the complainant and the so -called eyewitness,
both of whom are alive and were not called to testify in this court. Most of the
Plaintiff’s evidence remains unchallenged. Apart from the disputed evidence of
whether the Plaintiff was taken to his grandmother’s house, the people who could
have challenged the Plaintiff’s evidence were not called as witnesses. As such, the
First Defendant failed to discharge its onus of proving that the Plaintiff’s arrest and
detention were lawful. The First Defendant is 100% vicariously liable to
compensate the Plaintiff regarding the unlawful arrest and detention claim. The
Plaintiff discharged his onus of proving that he was maliciously prosecuted, and
the Second Defendant is 100% vicariously liable to compensate him for the harm
suffered.
ORDER
101. In the premises, the following order is made:
101.1. The First Defendant is liable for 100% of the Plaintiff’s proven damages in
respect of Claim A.
101.2. The First Defendant , THE MINISTER OF POLICE , is ordered to pay the
Plaintiff an amount of R 900 000.00 (Nine Hundred Thousand Rand) for his
unlawful arrest and detention from 28 December 2017 to 29 August 2018.
101.3. The First Defendant is ordered to pay 10.25% interest on the amount stated
in paragraph 98.2. of this order, calculated from the date of this judgment to
the date of final payment.
101.4. The Second Defendant is liable for 100% of the Plaintiff’s proven damages
in respect of Claim B.
101.5. The Second Defendant, NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS, is ordered to pay the Plaintiff an amount of R 200 000.00
(Two hundred Thousand Rand) for maliciously prosecuting him.
101.6. The Second Defendant is ordered to pay 10.25% interest on the amount
stated in paragraph 98.5 of this order, calculated from the date of this
judgment to the date of final payment.
101.7. The First and Second Defendants shall pay the Plaintiff’s costs on scale B
jointly and severally, the one paying the other to be absolved.
C MARUMOAGAE
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
JOHANNESBURG
Counsel for the Plaintiff : Adv M Mathe
Instructed by : Nhlanhla Mthembu Attorneys
Counsel for the First and
Second Defendants : Adv T Tshifhango
Instructed by : State Attorney
Date of the hearing : 4, 5, & 6 November 2025
Date of Closing Arguments : 21 November 2025
Date of judgment : 21 May 2026