REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA MAIN SEAT
CASE NO: 2026/020889
(1) REPORTABLE: YES/ NO
(2) OF INTEREST TO OTHER JUDGES: YES/
(3) REVISED: YES/NO
DATE SIGNATURE
In the matter between: -
PRINCE NHLANHLA JAPARA NGWENYAMA PLAINTIFF
and
MINISTER OF POLICE. 1 sr DEFENDANT
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 2ND DEFENDANT
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This judgment was handed down electronically by circulation to the parties’ representatives
by email. The date and time for the hand-down of the judgment is deemed to be 10
September 2026 at 15H30
JUDGMENT
MONENE AJ
Introduction
[1] Tragic, painful, callously handled and constitutionally distasteful stories
reminiscent of the apartheid colonial era of the kind in this matter, have
no reason to be lived let alone told in our alleged new dispensation.
[2] A young man presents himself at a police station accompanying his
girlfriend to lay a criminal complaint on 20 March 2008. On a mere whim,
police officers lingering around at the police charge officer, accuse him of
fitting a description of a suspect in another matter, interrogate him,
assault him and there and then arrest and detain him allegedly for robbery
despite the viva voce exculpatory intimations of two alleged robbery
complainants. He is never given a chance to apply for bail and in a
subsequent one-day “trial” more than a year after his arrest , where he
appears unrepresented and uncertain of proceedings, he is convicted,
not for robbery, but for housebreaking with intent to rape and rape and
sentenced to life imprisonment. The “complainant” in the new charges is
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apparently someone different from the two complainants he was
allegedly initially accused of robbing. From 2010 he tries in vain to
prosecute an appeal until 9 May 2025 when his conviction and sentence
are set aside by a Full Court of this division. In the wake of his consequent
release from prison , not on 9 May 2025 but some 7 days later , on 16
th
May 2025, he is bundled out of the prison gates with his meagre
belongings to, on his own, find whatever home he may still be having.
Indeed, let the beloved country cry a la literary guru, author Alan Paton’s
classical novel, as the more things change, the more they stay the same.
[3] This is application for default judgement in the wake of that young man,
the plaintiff in casu, having instituted action proceedings suing the police
ministry and the prosecution authority for unlawful arrest , unlawful
detention and malicious prosecution respectively and the respondents
having callously, despite proper service, proffered no defence.
[4] At issue are whether a proper case for default judgement as provided for
in Uniform Rule 31(2)(a) has been made and whether the plaintiff, who
beyond his default judgement affidavit testified viva voce, has made out
a case for unlawful arrest, unlawful detention and malicious prosecution.
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The facts in brief
[5] The plaintiff was arrested on 20 March 2008 while at Masoyi Police
station accompanying his girlfriend.
[6] He was tried and convicted for Hoose -Breaking with intent to rape and
Rape by the Nelspruit Regional Court 30 November 2009, having never
been admitted to bail. Two sentences of life imprisonment were imposed
on him.
[7] A Full Court of this Division per Vukeya J and Roelofse AJ set his
conviction and sentence aside on 9 May 2025.
[8] He was released on 16 May 2025, some 17 years and two months after
he was initially detained.
[9] He instituted these action proceedings against the two defendants
praying for general damages in the tune of R50 000 000.00 for unlawful
arrest and detention and R10 000 000.00 for malicious prosecution.
[10] No appearance to defend having been entered by the defendants the
plaintiff approached this court by way of default.
Has a case for default judgement been made?
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[11] The very clear and trite provisions of Uniform rule 31 can be summarised
as follows:
11.1 I f upon being served with summons a defendant who fails to file a notice
of intention to defend or having filed it fails to file a plea, a plaintiff may
apply for judgement by default. That is an application for the plaintiff’s
claim to be granted in the absence of the defendant or defendants since
they will be in default.
11.2 If the plaintiff’s claim is for a liquid claim capable of being proven on paper
without oral evidence , the default application can be determined by a
court registrar.
11.3 If the plaintiff’s claim is, as in casu, illiquid or rather not capable of being
simply determined on paper, then the plaintiff must apply to court , as is
the case in this matter.
11.4 If the defendant or defendants filed a notice of intention to defend but
defaulted only on plea, the plaintiff must in setting down the default
judgement give the defendant/s notice of no less than five days. If,
however, as in casu, not even a notice to defend was filed by the
defendant/s then the plaintiff does not have to give such defendant/s
notice of set down of the default judgement application.
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11.5 At the hearing of the default judgement application the plaintiff must, in
prosecuting his claim, lead evidence either per affidavit or orally or both;
depending on what the court deems necessary.
11.6 The court is then empowered to make whatever order it determines to be
just.
[12] In casu the combined summons, having been duly issued, were properly
served in terms of Uniform Rule 4(1)(a)(v) on the State Attorney on 4
February 2026, on the National Director of Public Prosecutions on 4
February 2026, and on the first respondent twice on 4 February and on 6
February 2026.
[13] Neither of the Defendants entered any intention to defend.
[14] In the premises the requisites of Uniform rule 31 paraphrased supra are
fully engaged and the plaintiff has thus duly earned his stripes to be heard
in default.
The law on unlawful arrest and detention and application thereof to the
facts.
[15] It is trite that in unlawful arrest and detention matters once arrest has
been admitted or proven the onus is on the defendant to prove the
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lawfulness of such arrest and detention, it being so that in our
constitutional dispensation a very high premium is placed on the right to
liberty. In this regard a plethora of authority is available. Suffice to refer
only to even a pre-constitutional dispensation matter of Minister of Law
and Order and Others v Hurley and Another 1986(3) SA 568(A) at
587-589 and to Mhaga v Minister of Safety and Security 2001(2) All
SA 534(Tk).
[16] In casu the arrest and detention of the plaintiff is patent from the facts.
The first defendant is, however, missing in action to justify the arrest and
detention. Reasonable suspicion of commission of an offence as would
traditionally be the first defendant’s defence is a non-starter as it cannot
be hoisted by the court in favour of a duly served no -show defendant.
Thus even without recourse or reference to the ultimate setting aside of
the conviction of the plaintiff, this court only has the version of the plaintiff
to the effect that he was arrested without a warrant on the whim of over -
eager police officers who had no reason to arrest and detain him when
they unreasonably suspected him of an offence in the face of statements
by witnesses that he did not fit the bill of their assailant.
[17] The plaintiff testified before this court that when the police officers
confronted him on a chance encounter with him at the police station the
two complainants in the matter the police sought to accuse him of had
indicated that he was shorter than their assailant and that their assailant
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would have bloodied clothing and that he had been found not to be glad
in bloodied clothing. That is the only evidence this court has on that issue
and there is no reason to reject that evidence, more so absent any
counter-version.
[18] I therefore do not struggle to agree with the plaintiff’s version that his
arrest and consequent detention was unlawful.
[19] The remaining question then manifests as being whether the unlawful
detention prevails beyond the subsequent post -court appearance
detentions and post sentence detention up to release on 16 May 2025.
Asked differently, the question is for how long the plaintiff was unlawfully
detained post his uncontroverted unlawful arrest.
[20] Faced with a question similar to the one posed immediately supra in the
face of a split decision from the Supreme Court of Appeal on the question
of police liability for detention post court appearance following unlawful
arrest, the majority in the apex court in the land in De Klerk v Minister
of Police 2020 (1) SACR 1 (CC )(“De Klerk”) at paras 62 and 63 held
as follows:
“The principles emerging from our jurisprudence can then be summarised
as follows. The deprivation of liberty, through arrest and detention, is per
se prima facie unlawful. Every deprivation must not only be effected in a
procedurally fair manner but must also be substantively justified by
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acceptable reasons. Since Zealand, a remand order by a magistrate does
not necessarily render subsequent detention unlawful. 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.
In cases like this, the liability of the police post- court appearance should
be determined on an application of the principles of legal causation,
having regard to the applicable test and policy considerations. This may
include a consideration of whether t he post-appearance detention was
unlawful. It is these public policy considerations that will serve as a
measure of control to ensure that liability is not extended too far…In
addition, every matter must be determined on its own facts -there is no
general rule that can be applied dogmatically in order to determine
liability.”
[21] In Phoshoko v Minister of Police ( 1017/2023) [2022] ZALMPPHC
35(27 June 2022) (“Phoshoko”) at para 33 Kganyago J, anchoring on
the sound footing of De Klerk remarked as follows on his way to finding
the policy not liable for post court remand detention:
“It is therefore not automatic that the Minister of Police will be held liable
for post-appearance detention, it must be shown that the magistrate who
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had remanded the matter did not break the causation. Once an arrested
person is handed to the court official, the arresting officer does no longer
have control on how the judiciary handles the matter further. It must
therefore be shown that the remand was a result of the unlawful conduct
of the police officers, or what role the police officers played in the matter
being remanded…In my view, no sufficient evidence has been placed
before court to enable it to determine whether the defendant should be
held liable for the detention of the plaintiff post-appearance in court.”
[22] On the facts in casu, not only are there no facts to prove liability of the
police post first appearance at court as in Phoshoko, but the court is left
none the wiser even regarding how long the pre -first appearance
detention was. No evidence has been led to prove when exactly it was
that, post the plaintiff’s arrest on 20 March 2008, the plaintiff made his
first appearance at court. And that is no fault of his as it may be
unreasonable to expect him to remember all that after 17 years of grave
and painful undue imprisonment. Much more could have been done by
the plaintiff’s legal rep resentatives by way of getting Regional Court
charge sheets and trial records to address this and a multitude of other
needlessly gaping holes in the plaintiff’s trial arsenal.
[23] Thus, although the plaintiff’s arrest was prima facie unlawful as already
stated supra, the pre-first appearance period of detention is as unknown
as the role the police may have played to attract liability to the first
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defendant for the period of more than a year before the trial commenced
upon or about 30 November 2009.
[24] Similarly, this court has nothing to go by regarding even remotely thinking
about imputing liability on the police and the second defendant on the
period of about 16 years spent by the plaintiff as a sentenced prisoner. It
was always going to be a herculean task to impute liability for the post -
sentence detention of the plaintiff on the police and the prosecution. A
magistrate sentenced him to life imprisonment, and it seems to me a high
stretch of incredulity to can fathom liability for such detention on police
and prosecutors as they did not order the sentence. In that regard, the
failure to have the Minister responsible for magisterial work as one of the
defendants, subject to whatever findings were made by the Full Bench in
setting the conviction of the plaintiff aside, is accusingly glaring.
The law on malicious prosecution and its application in casu
[25] Malicious prosecution has been defined by the Supreme Court of Appeal
in Relyant Trading (Pty) Ltd v Shongwe and Another [2006] ZASCA
162 at para 5 as comprising the wrongful and intentional assault on the
dignity of a person encompassing his rights to fama and dignity.
[26] Authority is legion from Minister of Justice and Constitutional
Development and Others v Moleko [2008] 3 All SA 47
(SCA)(“Moleko”) at para 8 to Rudolph and Others v Minister of Safety
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and Security and Another [2009] (5) SA 94 (SCA) at para 16 and to
Magwabeni v Lioma (198/2013)[2015] ZASCA 117(11 September
2015) at para 9 that a plaintiff who alleges malicious prosecution must
prove the following:
26.1. That the defendant instigated criminal proceedings against the
plaintiff,
26.2. That the defendant instigated those proceedings absent
reasonable and probable cause,
26.3. That the defendant acted with malice, hence the claim being coined
as “malicious” prosecution, and
26.4. That the prosecution failed.
[27] Applied to the facts of this case and the evidence led in this default
judgement application it is self-evident that, but for proof that prosecution
proceedings were instituted, none of the other requirements listed supra
have been engaged. The pleadings merely state that the defendants
acted with “malice” and beyond that, no evidence was led to unpack and
prove the malice. They only go further to suggest, rather debatably, that
the setting aside of the conviction meant fulfillment of the requirement
that a prosecution must have failed. Most meagre and threadbare are the
pleadings and evidence and thus not much needs to be said in this
regard.
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[28] Accordingly, a finding that the malicious prosecution evidence threshold
has barely begun to be summitted in casu is not difficult to arrive at.
To dismiss or not to dismissing
[29] In the introductory part of this judgement this court lamented the
deplorable way our criminal justice system treated the plaintiff.
[30] Unfortunately, the less than elegant way his matter was pleaded and
evidence collected did not help matters too.
[31] The question is whether this layman should be met with a dismissal of his
claim in circumstances where no opposition was entered against his
action and thus nobody prayed for dismissal. I am of the view that such
an approach, on the facts, would not be in the interests of justice and
would contribute to a further uncalled -for affront on the plaintiff’s rights.
My sense of justice does not permit me to dismiss his claims much as I
cannot, for the reasons stated supra, grant them. Given the possible non-
joinders of the Justice and Correctional Services ministries , possible
none pleaded claims, possible neglected but probably still available
evidence on claims pleaded in casu and the probable insulation from
prescription still, I am disinclined to dismiss the plaintiff’s action and so
contribute to the continuance of the plaintiff’s raw deal.
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[32] If the defendants had been party to the litigation in casu I would not have
expected them to take the stand and lead any evidence. I would have
granted them absolution from the instance on account of a dearth of
evidence calling for them to defend themselves, that is, if they would have
not excepted to the pleadings.
[33] Alive to the fact that absolution is traditionally sought by defendants and
where deserving, granted in defended actions, I am unaware of anything
in our law which bars a court from washing its hands , akin the biblical
Pontius Pilate, and ordering absolution in a default judgement
application. I see nothing in Uniform rule 31 which prescribes that I can
only grant or dismiss a claim. In fact, Uniform Rule 31(2)(a) empowers a
court to grant default judgement against the defendant or “make such
order as it deems fit ”. In my view therefore, ordering absolution in this
matter falls well within the test for absolution as long established in
Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403(A) (“Claude
Neon Lights”) which remains whether there is evidence upon which a
court, applying its mind reasonably to evidence before it , could or might
find for the plaintiff.
[34] I also do not understand it to be the law that absolution can only be
granted if first applied for, that is, as it is traditionally applied for by a
defendant. That is notwithstanding that Claude Neon Lights at 409G-H
spoke to and defined absolution from the point of it being sought or
applied for. Like a discharge in terms of section 17 4 of the Criminal
Procedure Act 51 of 1977 in criminal proceedings , it ought to be within
this court's inherent powers, infused with a constitutional ethic to, mero
motu, wash its hands from a civil litigation dispute even where there was
no opposition. I am enjoined by democratic constitutionalist ubuntu
principles to grant a just and equitable order in these unique
circumstances and dismissal is, in my view, not it. Justice demands that
the plaintiff, given the facts of this case, get, at the very least, another
chance to fight to vindicate his rights.
Order
[35] In all the above premises, the following order is made:
35.1. Absolution from the instance is granted in respect of all the
plaintiffs claims with no order as to costs.
Malose Monene
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBIELA
(MAIN SEAT)
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APPEARANCES
Heard on : 28 April 2026
Judgment delivered on : 10 September 2026
For the Plaintiff/Applicant : Mr M E Saidell
Instructed by: : M E Saidell Attorneys
Tel: 013 110 2051
Email: info@mesaidellattorneys.co.za
For the Defendants/Respondents: No appearance