GAUTENG DIVISION , PRETORIA
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
2026-05-29
DATE
In the matter between:
HOSEA MADI ME NKOGA TSE
and
THE MINISTER OF POLICE
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
Case No: A320f2024
Appellant
First Respondent
Second Respondent
This judgment was prepared and authored by the Judge whose name is reflected and is handed down
electronically by circulation to the parties or their legal representatives by email and by uploading it to
the electronic file of this matter on Caselines. The date for handing down is deemed to be 29 May
2026.
JUDGMENT
VAN DER MERWE AJ
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Introduction
[1] This is an appeal against the judgment and order of Her Ladyship Collis J that
was granted on 2 June 2023, leave to cross-appeal having been granted on
21 November 2023. The leave to appeal was withdrawn.
[2] The Appellant, Hosea Madime Nkogatse [Nkogatse] instituted an action against
the First Respondent, The Minister of Police [the Minister] for unlawful arrest
and detention, and against the Second Respondent, The National Director of
Public Prosecutions [the NDPP] for malicious prosecution. The action against
the Minister was withdrawn, the matter proceeded solely against the NDPP.
Judgment was granted in favour of Nkogatse and he was awarded R500,000.00
in respect of general damages.
Background of the matter
(3] Nkogatse pleaded that he was unlawfully arrested and detained on or about 19
June 2007 in Tembisa. Nkogatse appeared before the Tembisa Magistrates'
Court and was charged with murder, kidnapping, and robbery with aggravating
circumstances. Nkogatse was remanded into custody and he was granted bail
on his next Court appearance. The case was subsequently transferred to the
Regional Court in Alexandra.
[4] Nkogatse was on bail for the duration of the trial. Nkogatse was found guilty of
robbery and sentenced to 15 years imprisonment on 12 May 2011. His bail
was immediately withdrawn, and he was incarcerated.
(5] Nkogatse's conviction and sentence were set aside by the High Court on review
on 27 March 2015 and the case was remitted to the Regional Court for trial de
nova. The Court declared the trial a nullity.
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[6] Nkogatse was remanded in custody and was only released on 18 May 2015.
On the same day, Nkogatse was arrested again on the same charges, except
that a charge of defeating the ends of justice was added. Nkogatse appeared
before the Court for his first appearance on 19 May 2015. Nkogatse was
prosecuted on the same charges, plus the additional charge for defeating the
ends of justice.
[7] A prolonged trial thereafter ensued. On 29 October 2015, the Appellant was
acquitted and discharged in terms of section 174 of the Criminal Procedure Act
[the Act], following which he was released from custody on the same day. The
amended particulars of claim referred to one prosecution that commenced on
19 June 2007 and concluded on 29 October 2015. The charges of murder,
kidnapping and robbery with aggravating circumstances in both prosecutions
of Nkogatse were based on the same docket and evidence, save for the
additional charge of defeating the ends of justice introduced in the second
prosecution. No further investigation was undertaken to justify this addition.
Nkogatse was rearrested on the day of his discharge from the first prosecution,
and the second prosecution commenced the following day.
[8] In this judgment, the prosecution commencing on 21 June 2007 and ending on
18 May 2015 will be referred to as the first prosecution, while the prosecution
commencing on 19 May 2015 and ending on 19 October 2015 will be referred
to as the second prosecution .
. Argument on behalf of Nkogatse
[9] Nkogatse contends that the learned Judge erred in finding that the first and
second prosecutions were two separate prosecutions, and ought to have found
that the prosecutions were one prosecution. Consequently, the Court a quo only
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awarded the Nkogatse damages in respect of the second prosecution , which
the Court found to be malicious .
[1 0] It was argued that the Court a quo erred in failing to make any finding in respect
of Nkogatse's detention for the period 27 March 2015, when the Review Court
set aside his conviction and sentence, to 18 May 2015, when he was reportedly
released from custody and immediately rearrested on the same day. It is further
submitted that this continued detention was unlawful, there being no lawful
basis for his continued incarceration after 27 March 2015. Nkogatse contended
that his detention arose from the first prosecution, and that the Court ought to
have awarded damages in respect of this period as well.
[11] Nkogatse relied on the matter of Thompson and Another v The Minister of
Police1 [the Thompson matter] , where it was decided that in claims for malicious
arrest and detention and prosecution , the entire process from arrest to final
acquittal should be regarded as a single continuous event. Accordingly, a cause
of action for personal injury arises only once the criminal proceedings have
been finally determined in the accused's favour, whether by discharge, acquittal
at trial, or discharge on a successful appeal.
[12] It was contended during argument, that the issue as to whether two distinct
prosecutions existed can be resolved by enquiring whether Nkogatse would
have been entitled to successfully raise a plea of double jeopardy upon being
charged de novo on 19 May 2015. It was argued that the answer to this question
is found in Sections 313 and 324 of the Act, which provides as follows:
"313. Institution of proceedings de novo when conviction is set
1 1971 (1)SA371E
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aside on appeal of review
The provisions of Section 324 shall mutatis mutandis apply with
reference to any conviction and sentence of a lower court that are set
aside on appeal or review on any ground referred to in that section."
"324. Institution of proceedings de novo when conviction set aside
on appeal
Whenever a conviction and sentence are set aside by the Court of
Appeal on the ground -
(a) that the court which convicted the accused was not competent to do
so; or
(b) that the indictment on which the accused was convicted was invalid
or defective in any respect; or
(c) that there has been any other technical irregularity or defect in the
procedure, proceedings in respect of the same offence to which the
conviction and sentence referred may again be instituted either on
the original charge, suitably amended where necessary, or upon any
other charge as if the accused had not previously been arraigned,
tried and convicted: Provided that no judge or assessor before the
original trial took place shall take part in such proceedings."
[13] Section 313 of the Act provides that the provisions of section 324 apply mutatis
mutandis where a conviction and sentence are set aside on appeal or review
on any of the grounds contemplated in section 324. Section 324, in turn,
authorises the reinstitution of proceedings where a conviction has been set
aside due to, inter alia, a technical irregularity or defect in the proceedings, and
permits such proceedings to commence afresh as though the accused had not
previously been arraigned, tried, or convicted.
[14] In the present matter, Nkogatse's conviction and sentence were set aside on
review on account of a serious irregularity, namely that he had been
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represented during the trial by an unqualified legal representative. The matter
was thereafter remitted to the Regional Court for a trial de novo before a
different presiding officer in accordance with the provisions of sections 313 and
324 of the Act.
[15) However, the fact that the subsequent proceedings were instituted de novo
pursuant to sections 313 and 324 does not, in the circumstances of this matter,
detract from the continuous nature of the prosecution. The statutory mechanism
permitting a retrial following the setting aside of a conviction on review does not
necessarily render the subsequent proceedings separate and unrelated to the
original prosecution. It was argued that on the facts of the present matter,
Nkogatse was prosecuted on substantially the same charges arising from the
same factual matrix, was rearrested immediately upon his release, and
remained subject to continuous incarceration until his ultimate discharge in
terms of section 17 4 of the Act on 29 October 2015.
[16) Nkogatse also appeals against the order awarding costs, on the basis of the
employment of only one counsel in favour of the Plaintiff, notwithstanding the
complexity of the merits, the voluminous documentary bundles, the intricate
legal issues raised, and the number of authorities traversed. It is trite that the
question of costs lies within the discretion of the Court, which discretion must
be exercised judicially upon a consideration of all relevant facts, with fairness
to both parties being the overriding consideration.
[17) It was submitted that the relevant consideration for the award of two counsel,
is the following:
17.1 The papers in the present case are bulky;
17.2 The issues are complicated, including the special pleas raised,
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the legal argument prepared and the number of legal authorities
relied on by both parties;
17.3 The NDPP applied for absolution from the instance at the end of
Nkogatse's case and comprehensive heads of argument had to
be prepared overnight, including preparation for the continuation
of the trial.
Argument on behalf of the NDPP
[18] On behalf of the NDPP, it was contended that the prosecutions of 21 June 2007
and 19 May 2015 constituted two separate and distinct proceedings, the latter
having been a trial de nova. It was accordingly submitted that the Court a quo
correctly confined its consideration to a single prosecution. It was further argued
that the second prosecution was wholly independent of the first, as it was
conducted before a different presiding officer and constituted a fresh and
discrete set of proceedings .
[19] It was submitted on behalf of the NDPP that the authority relied on by Nkogatse
in the Thompson matter did not find application in the present case. The NDPP
contends that, notwithstanding the order of the Appeal Court directing a trial de
novo before a different presiding officer, the proceedings did not constitute a
continuation of the original prosecution. It is submitted that the first prosecution
had been finally determined , and that the subsequent proceedings commenced
afresh de novo.
[20] In relation to costs, it was submitted on behalf of the NDPP that the matter
before the Court was not of such complexity as to justify the costs of two
counsel.
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Reasons for decision
The prosecution
[21] The Court a quo erred in concluding, firstly, that there were two distinct
prosecutions and, secondly, that only the second prosecution could properly
find a claim for malicious prosecution.
(22] Neither the facts nor the law supports these conclusions. In the Thompson
matter, it was decided that claims for arrest and detention where a malicious
prosecution follows the arrest, the entire process from the initial arrest through
to final acquittal constitutes a single continuous sequence. Accordingly, a
cause of action for personal injury does not arise until the criminal
proceedings have been conclusively resolved in the accused's favour,
whether by discharge, or by acquittal at trial or by discharge pursuant to a
successful appeal against conviction.2
(23] The fact that the second trial proceeded de novo is of no moment. The Court
accorded this consideration excessive significance in its determination that
there were two prosecutions. Properly viewed, the events reflect a single,
ongoing prosecutorial continuum rather than two separate and distinct
proceedings. Nkogatse's cause of action only arose on 29 October 2015. The
court therefore erred in not following the principle, as set out in the Thompson
matter.
(24] The second prosecution was instituted on substantially the same charges as
the first prosecution, save for the addition of a charge of defeating the ends
2 Thompson and Another v Minister of Police and Another 1971 (1) SA 371 (E) at par 375A.
Malice
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of justice, and proceeded on materially the same factual matrix and
evidentiary foundation. Significantly, the prosecutor testified that he
considered there to be a prima facie case against Nkogatse, precisely
because he was aware that the first prosecution had already culminated in a
conviction and sentence. On his own version, the prior conviction formed a
material basis upon which he considered the second prosecution to be
justified and lawful.
[25] Having found that Nkogatse had discharged the onus of proving the
requirements for malicious prosecution, including the absence of reasonable
and probable cause and the existence of malice, the Court ought to have
concluded that such findings extended to the entirety of the prosecutorial
process, inclusive of the first and second prosecution.
[26] Moreover, insofar as the prosecutor justified the second prosecution by
reliance upon the previous conviction, the subsequent setting aside of that
conviction on review deprived such reliance of any lawful foundation. In the
absence of new inculpatory evidence or a materially altered factual basis, the
continuation of the prosecution on the same evidence and allegations could
not reasonably be divorced from the defects that tainted the original
proceedings. The Court a quo therefore erred in failing to find that the first
prosecution likewise formed part of the malicious prosecution instituted and
pursued against Nkogatse.
[27] The quantum of damages awarded by the Court a quo is flawed, as it failed
to properly have regard to the full period of Nkogatse's deprivation of liberty
from 21 June 2007 to 29 October 2015. Not only the second prosecution, but
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the entire period ought to have been considered in the assessment of general
damages, with due consideration of the cumulative effect of the prolonged
detention and prosecution when determining a fair and just award.
[28] The Court a quo also erred in not considering the provisions of Section 313
and 324 of the Act in that Nkogatse could have raised the plea for double
jeopardy when he was charged de novo on 19 May 2015.
[29] The ambit of section 324 of the Act is confined to circumstances in which, by
reason of procedural or technical defects, no valid determination could
properly have been made due to an irregularity. In the present matter, the
Review Court set aside Nkogatse's conviction on the basis that he had been
represented at trial by an unqualified legal representative, which the Court
held constituted a material and serious irregularity in the proceedings.
[30] The Court a quo erred in failing to find that the scope of section 324 is confined
to circumstances where, by reason of procedural or technical irregularities, a
valid adjudication on the merits could not properly be reached. The concept
of an "irregularity" in this context was described as one of such a fundamental
nature that it vitiates the proceedings, with the result that the conviction or
determination is set aside on appeal or review because the defect precludes
a proper and valid consideration of the merits. In such instances, the
irregularity is of such gravity that it undermines the integrity of the trial
proceedings, with the consequence that the original determination cannot
stand.3
[31] The statutory authority to institute a retrial under sections 324 and 332 of the
Act is premised upon the original proceedings having been vitiated by a
3 S v Naidoo 1962 (4) SA 348A at 352.
Costs
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material irregularity, with the result that the earlier conviction or acquittal is set
aside and cannot stand as a final and valid adjudication of the charge.4
[32] In the Court a quo , the parties delivered closing arguments at the conclusion
of the trial. Nkogatse requested a punitive order for costs, the issue of the costs
of two counsel was not addressed in the written submissions of either party at
that stage, nor was it specifically raised or ventilated during argument before
the Court a quo. The Court granted costs in favour of Nkogatse, but found that
a punitive costs order was not warranted. We find that the cost order made by
the Court a quo was appropriate.
[33] In respect of the costs of the appeal , there is no reason why costs should not
follow the result. Therefore , costs are to be awarded to Nkogatse.
The following order is made:
[34] The appeal is upheld.
[35] The order of the court a quo in respect of general damages, is set aside;
[36] The costs order of the court a quo is confirmed;
[37) The matter is remitted to the court a quo for reconsideration of the quantum of
general damages;
[38) The NDPP is to pay the costs of the appeal, including costs of counsel on Scale
B.
4 Director of Public Prosecutions , Transvaal v Mtsweni 2007 (2) SACR 217 (SCA) at 29.
I agree
I agree
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J VAN DER MERWE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVIS ION PRETORIA
GAUTENG DIVISION PRETORIA
N.G.M. MAZIBUKO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
CASE NO: A320/2024
HEARD ON: 25 February 2026
FOR THE APPELLANT: ADV. S. MBHALATI
ADV. M. MATEMOTSA
INSTRUCTED BY: Mokoena Attorneys
FOR THE RESPONDENT: ADV. S.F. SIBISI
INSTRUCTED BY: State Attorney, Pretoria
DATE OF JUDGMENT: 29 May 2026
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