IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 4526/2019
In the matter between:
ZWELETHU NDAMASE Plaintiff
and
MINISTER OF POLICE 1st Defendant
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 2nd
Defendant
JUDGMENT
MHAMBI AJ
[1] This is a two -pronged action for damages by the plaintiff. In the first
claim, the plaintiff, Mr. Zwelethu Ndamase, claims damages against the first
defendant, “the Minister”, as a result of the alleged unlawful arrest which
occurred on 22 September 2017, and subsequent detention from 22 September
2017 until 26 September 2017. In the second claim, the plaintiff claims damages
for malicious prosecution against the second defendant, the Director of Public
Prosecutions, which occurred between 26 September 2017 and 08 February
2019, found not guilty.
[2] The background to the arrest and detention of the plaintiff is as follows:
On 6 September 2017, Mr. Zamile Cameron Funani, obtained a protection order
in the Magistrates court against the plaintiff in terms of section 6 of the
Domestic Violence Act, 116 of 1998, “ the Act”. For convenience ,I shall refer
to Mr. Funani as the complainant.
[3] The protection order was served by the police on the plaintiff personally
on 11 September 2017. The protection order, amongst other things, directed the
plaintiff to refrain from assaulting and or threatening to assault, in any manner
whatsoever the plaintiff.
[4] In the particulars of claim, the plaintiff has alleged that on 17 September
2017, he was threatened by the plaintiff by uttering the words;
“YOU CALLED THE POLICE FOR ME. I WILL CATCH YOU”.
[5] It is common cause that consequent to the alleged threat, the complainant
laid a criminal case against the plaintiff at Ngqeleni, reported under Ngqeleni
CAS 130/09/2017. The plaintiff was charged with breach of the protection
order.
[6] In justifying the arrest, the Minister had pleaded that the plaintiff was
arrested on the basis of the warrant of arrest issued in terms of section 8 (1) (a)
of the Domestic Violence Act. The police witness testified on behalf of the
Minister that she had no option but to arrest the plaintiff on the basis of the
issued warrant of arrest. I will deal with the analysis of the evidence by the
police later in this judgment. Below, I deal with the legal framework relevant to
arrest in terms of the Act.
The statutory position
[7] Arrests with a warrant in terms of the Domestic Violence Act are dealt
with in section 8 (4), which in the relevant part reads as follows:
“(b) If it appears to the member concerned that, subject to subsection (5), there are
reasonable grounds to suspect that the complaint may suffer imminent harm as
a result of the alleged breach of the protection order by the respondent, the
member must forthwith arrest the respondent for allegedly committing the
offence referred to in Section 17(a). (Emphasis added).
(c) If the member concerned is of the opinion that there are insufficient grounds
for arresting the respondent in terms of paragraph (b), he or she must forthwith
hand a written notice to the respondent which:
(i) specifies the name, the residential address and the occupation or status of the
respondent;
(ii) calls upon the respondent to appear before a court, and on the date and at the
time specified in the notice, on a charge of committing the offence referred to
in Section 17(a); and
(ii) contains a certificate signed by the member concerned to the effect that he or
she handed the original notice to the respondent and that he or she explained the
import thereof to the respondent. (Emphasis added).”
[8] The mere breach of a protection order is insufficient to justify an arrest.
An additional requirement, namely the possibility that the complainant could
suffer imminent harm should the arrest not be effected, has to be present.
[9] The existence of imminent harm to the complainant has to be based on
reasonable grounds. The arresting officer consequently must have had evidence
to the effect that not effecting the arrest would place the complainant in
imminent danger.
[10] The following factors are worth noting in an arrest based on the warrant
issued in terms of the Act:
“(a) Where a respondent has contravened any prohibition, condition, obligation or
order contained in a protection order, a complaint may hand the Warrant of
Arrest together with an affidavit, wherein it is stated that the respondent
contravened such protection order, to any member of the police.
(b) If, upon receipt of the Warrant of Arrest with the affidavit, referred to in
subparagraph (a) (above), it appears to the member that there are reasonable
grounds to suspect that the complaint may suffer imminent harm as a result of
the alleged breach of the protection order, the member must arrest the
respondent for contravening the protection order on the strength of the
warrant.
(c) In considering whether or not the complaint may suffer imminent harm, a
member must take the following into account:
(i) the risk to the safety, health or well-being of the complainant;
(ii) the seriousness of the conduct comprising the alleged breach of the
protection order; and
(iii) the length of time since the alleged breach has occurred:
(d) If the member is of the opinion that there are insufficient grounds to arrest the
respondent, he or she must immediately hand a Notice to the respondent as
provided for in Form 11 to the Regulations. The member must insert the first
court day thereafter as date of appearance on the form and complete the
certificate, provided for in the Notice.” [ emphasis added].
[11] I have observed the warrant of arrest as per Form 8 of Regulation 9 of the
Act. I observed that the warrant of arrest contains a proviso mirroring the
provisions of the Act, as well as the instruction, reading as follows:
“Therefore, you are hereby authorized and ordered to forthwith arrest the respondent
in terms of the Domestic Violence Act, 1998, if there are reasonable grounds to
suspect that the claimant may suffer imminent harm as a result of the alleged breach
of the protection order by the Respondent.”
[12] The Act uses the phrase “imminent harm”, which has been defined as:
“… the danger of harm of a certain degree of immediacy that activates the
protection. That is to say a harm which is impending threateningly, ready to
overtake or coming on shortly."1
[13] This court has to determine whether, objectively viewed, the arresting
officer assessed the complaint as recorded in the affidavit by the complainant,
and satisfied themselves that the complainant was faced with imminent danger.
From the evidence of the police, they did not assess whether the complainant
was faced with imminent danger; they simply acted on the basis of the issued
warrant. The justification provided for that was that the presiding officer or
magistrate criticised the police for not effecting or executing the warrant in
cases of domestic violence. I disagree with that narrative. The presence of the
warrant does not deter the police from assessing whether the complainant runs
the risk of imminent harm, taking into account the factors I have tabulated in
paragraph 10 above.
[14] The findings in the following judgment are underscored, even though the
judgment deals with the Domestic Violence Act : Khanyile vs Minister of Safety
and Security2.
“[28] However, the responsibility to conduct the investigation and enquiry prior to
the execution of the warrant lies with the member to whom the complainant hands the
1 Seria v Minister of Safety and Security and others. 2005 (5) SA 130
2 (7079/08)[2012] ZAKSDHC 12; 2012 (2) SACR 238 (KZD):
affidavit, as he/she may execute the warrant only if satisfied that the alleged
contravention of the interim order as set out in the affidavit sustains the execution of
the warrant…………….
[30] The warrant refers to the ‘attached’ protection order and affidavit and
authorizes and orders the police to forthwith arrest the respondent ‘if there are
reasonable grounds to suspect that the complaint may suffer imminent harm.’ The
execution of the warrant is therefore constrained by the annexures thereto. The
protection order sets out the nature of the interdict against the respondent and the
affidavit must contain details of the alleged contravention of the interdict by the
respondent. Only after a perusal of the annexures will a ‘member’ to whom the
warrant is handed, be able to exercise his/her discretion as allowed in terms of Section
8(4)(b) of the Act read with Subsection (5), and decide if there are reasonable grounds
that the complaint is at risk which justifies his arrest alternatively whether a notice in
terms of Section 8(4)(c) should be served on the respondent.
[31] Although it is apparent from the warrant, that the warrant was authorized and
that there was an allegation that the order had been breached by the plaintiff, it was
nevertheless incumbent upon Gumede before executing the warrant to satisfy himself
of the terms of the order and of the nature of the alleged breach before executing the
warrant. He failed to apply his mind to the proviso that the arrest should only be
effected ‘if there are reasonable grounds to suspect that the complainant may suffer
imminent harm as a result of the alleged breach of the protection order by the
respondent.
[32] However, as a result of Gumede’s failure to peruse the documents and to
satisfy himself as aforesaid, there were no grounds to suspect the complaint may
suffer imminent harm. Clearly, the threshold of ‘reasonable grounds’ could not be
reached given the lack of information at his disposal.
[33] Even though Gumede had not been presented with a warrant of arrest in terms
of the Act previously or received any training on the implementation of the provisions
of the Act, in particular the execution of a warrant of arrest issued in terms of the Act,
as an experienced member of the South African Police Services, he ought to have
known that the arrest of an individual is a drastic infringement of the arrestee’s
constitutional rights to freedom and security of person (Section 12 of the Constitution
of South Africa No 108 of 1996) and a warrant should therefore not be executed in
haste and without due consideration of all the pertinent facts, particularly as there was
only an allegation, not conclusive proof, that the order had been breached.”
[15] In my view, the absence of the assessment of imminent harm by the
police before the arrest was effected is the end of the enquiry relating to
lawfulness or otherwise of the arrest by the police in this case. The arrest under
the circumstances becomes unlawful, so is the subsequent detention.
[16] What the court said : In Minister of Law -and-Order vs Hurley and
Another3,as the consequence of an arrest beares repeating. The court said:
“An arrest constituted 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.”
3 1986 (3) SA 568 (A) at 589-F:
[16] In JE Mahlangu and Another v Minister of Police, 4 the position was
reiterated as follows:
“It follows that in a claim based on the interference with the constitutional right not
to be deprived of one’s physical liberty, all that the plaintiff has to establish is that an
interference has occurred. Once this has been established the deprivation is unlawful
and the defendant bears the onus to prove that there was a justification for
interference.”
[17] In Mabona and Another v Minister of Law and Order and Others 5, the
following was stated regarding suspicion:
“the reasonable man will therefore analyse and assess the quality of the information at
his disposal critically, and he will not accept it lightly or without checking it where it
can be checked. It is only after an examination of this kind that he will allow himself
to entertain a suspicion which will justify an arrest. This is not to say that the
information at this disposal must be of a sufficiently high quality and cogency to
engender in him a conviction that the suspect is in fact guilty. The section requires
suspicion not certainty. However, the suspicion must be based on solid grounds.”
[18] In J E Mahlangu and Another v Minister of Police6 It was stated:
“The unlawful deprivation of liberty, with its accompanying infringement of the right
to human dignity, has always been regarded as a particularly grave wrong and a
4 2021 ZACC 10 at para 32.
5 1988 (2) SA 654 (SE).
6 [2021] ZACC 10 at parA [27].
serious inroad into the freedom and rights of a person. In Thandani, the Court said
that:
“sight must not be lost of the fact that the liberty of the individuals is one of the
fundamental rights of a [person] in a free society which should be jealously guarded at
all times, and there is a duty on our Courts to preserve this right against infringement.
Unlawful arrest and detention constitutes a serious inroad into the freedom and the
rights of an individual.”
[19] In considering the previous award made, I am mindful of what was held
in Minister of Safety and Security v Tyulu7:
“In the assessment of damages for unlawful arrest and detention, it is important to
bear in mind that the primary purpose is not to enrich the aggrieved party but to offer
him or her some much -needed solace for his or her injured feelings. It is therefore
crucial that serious attempts be made to ensure that the damages awarded are
commensurate with the injury inflicted. However, our courts should be astute to
ensure that the awards they make for such infractions reflect the importance of the
right to personal liberty and the seriousness with any arbitrary deprivation of personal
liberty is viewed in our law. I readily concede that it is impossible to determine an
award of damages for this kind of injuria with any kind of mathematical accuracy.
Although it is always helpful to have regard to awards made in previous cases to serve
as a guide, such an approach, if slavishly followed, can prove to be treacherous. The
correct approach is to have regard to all of the facts of the particular case and to
determine the quantum of damages on such facts.”
7 2009 (5) SA 85 (SCA).
.
[20] In Minister of Safety and Security v Seymore,8 it was held:
“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.”
[21] I now turn to deal with the claim against the second defendant as follows:
in so far as claims of that kind are concerned.
[22] In Koji v Director of Public Prosecutions, 9 Reddy J states as follows in
paragraphs 17 and 18:
“[17] The National Director of Public Prosecutions derives its mandate from section
179 of the Constitution. Section 179(2) expressly empowers the prosecuting authority
to institute criminal proceedings on behalf of the State. This constitutional imperative
must be exercised without fear, favour, or prejudice. This constitutional edict should
not be construed to mean that a prosecution can be initiated without a proper
consideration and application of the relevant law to justify unfounded prosecutions.
[18] What is demanded in a constitutional on is that when a decision is made to
prosecute, prosecutorial oversight accompanies such decision to continuously assess
8 2006 (6) SA 320 (SCA).
9 628/2018 [2024] ZANWHC 297 (5 December 2024).
the process to determine whether the prosecution is justified or not.” [my emphasis
added]
[23] The jurisdictional requirements for a successful claim of malicious
prosecution have been restated in Minister for Justice and Constitutional
Development v Moleko10, as follows:
“In order to succeed (on the merits) with a claim for malicious prosecution, a
claimant must allege and prove:-
(a) That the defendants set the law in motion (instigated or instituted the
proceedings);
(b) That the defendants acted without reasonable and probable cause;
(c) That the defendants acted with malice (or animo injuriandi); and
(d) That the prosecution has failed.”
[24] It is not in dispute that the proceedings were so instituted and that the
prosecution failed. The aspect of reasonable and probable cause, and malice (or
animo injuriandi) is in dispute.
[25] In Moleko, the following was stated regarding the consideration of
reasonable and probable cause:
10 (131/07) [2008] ZASCA 43 (31 March 2008)’ at para 8.
“Reasonable and probable cause, in the context of a claim for malicious prosecution,
means an honest belief founded on reasonable grounds that the institution of
proceedings is justified. The concept therefore, involves both a subjective and an
objective element -‘Not only must the defendant have subjectively had an honest
belief in the guilt of the plaintiff, but his belief and conduct must have been
objectively reasonable, as would have been exercised by a person using ordinary care
and prudence.”
[26] In National Director of Public Prosecutions v Sijoyi Robert Mdhlovu 11,
the following was stated in paragraphs 20 and 21:
“[20] In Prinsloo and Another v Newman , this Court discussed the concept of
reasonable and probable cause for prosecution in the context of malicious prosecution.
The Court held that the test for reasonable and probable cause is an objective one. It is
not based on the subjective beliefs or motives of the prosecutor. Reasonable and
probable cause exists if a reasonable person would have concluded that the accused
was probably guilty on the facts available to the prosecutor.
[21] It follows that a prosecutor need not have evidence establishing a prima facie
case or proof beyond a reasonable doubt when deciding to initiate a prosecution.
Suspicion of guilt on reasonable grounds suffices. The question is what a reasonable
prosecutor would have done in light of the information available at the relevant
stage.”
[27] In Moleko the following was stated regarding the malice:
11 Case No. 194/2023) [2022] ZASCA 85 (03 June 2024).
“[61] In the Relyant case, this court stated the following in regard to the third
requirement: Although the expression “malice” is used, it means, in the contest of the
action iniuriarum, animus iniuriandi. In Moaki v Reckitt & Colman (Africa) Ltd and
another, Wessels JA said: ‘Where relief is claimed by this action the plaintiff must
allege and prove that the defendant intended to injure (either dolus directus or
Indirectus). Save to the extent that it might afford evidence of the defendant’s true
intention or might possibly be taken into account in fixing the quantum of damages,
the motive of the defendant is not of any legal relevance……..
[63] Animus injuriandi includes not only the intention to injure, but also
consciousness of wrongfulness: ‘In this regard animus injuriandi (intrntion) means
that the defendant directed his will to prosecuting the plaintiff (and thus infringing his
personality), in the awereness that reasonable grounds for the prosecution were
(possibly) absent, in other words, that his conduct was (possibly) wrongful
(consciousness of wrongfulness). It follows from this that the defendant will go free
where reasonable grou nds for the prosecution were lacking, but the defendant
honestly believed that the plaintiff was guilty. In such a case the second element of
dolus, namely of consciousness of wrongfulness, and therefore animus injuriandi.
[64] The defendant must thus not only have been aware of what he or she was
doing in instituting or initiating the prosecution, but must at least have foreseen the
possibility that he or she was acting wrongfully, but nevertheless continued to act,
reckless as to the consequences of his or her conduct (dolus eventualis). Negligence
on the part of the defendant (or, I would say, even gross negligence) will not suffice.”
[28] The prosecutor who testified for the second defendant stated that she
enrolled the matter for prosecution, taking into account the affidavit by the
complainant filed in the docket, together with the protection order and the
consequently issued warrant of arrest. She was convinced that there was indeed
a prima facie case against the plaintiff. The fact that the prosecution has failed
does not in any manner suggest that there was malice in the prosecution of the
plaintiff. In this case, I am not satisfied that the plaintiff has proved malice in
its prosecution; therefore, the claim against the second defendant should fail.
Order
In the result, I make the following order;
1. The first defendant is held to be liable to compensate the plaintiff
for damages for the wrongful and unlawful arrest of the plaintiff on
22 September 2017, and the subsequent unlawful and wrongful
detention from 22 September 2017 until 26 September 2017.
2. The first defendant is directed to pay the plaintiff an amount of
R200 000 for his unlawful and wrongful arrest and detention.
3. The first defendant is directed to pay the plaintiff’s costs of suit
relating to unlawful and wrongful arrest and detention, such costs
to include the costs incurred for the employment of two counsel on
scale B.
4. The plaintiff’s claim against the second defendant is dismissed
with no order as to costs.
M. MHAMBI
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Plaintiff : S. Mzileni with Ms Z. Ndlovu
Instructed by : NA Magqaza Attoeneys
Mthatha
Counsel for the Defendants : N. Gumede
Instructed by : the State Attorneys,Mthatha
Heard on : 20,21,22 April 2026
Judgment Delivered on : 07 May 2026