L.D v Minister of Police and Another (3046/2022) [2024] ZAECQBHC 81 (28 November 2024)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION – GQEBERHA)

CASE NO.: 3046/2022

In the matter between: -

L[...] D[...]

Plaintiff

and

MINISTER OF POLICE

First Defendant

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Second Defendant

JUDGMENT

ROSSI AJ:

[1.] The plaintiff instituted an action for delictual damages against the Minister of Police and the National Director of Public Prosecutions, as first and second defendants respectively, for the following claims:

a. Claim One: R500 000.00 for the alleged unlawful arrest, initial detention for the period of 28 February to 2 March 2022.[1]

b. Claim Two: R1 050 000.00 for further wrongful and unlawful detention for the period 2 to 17 March 2022.

c. Claim Three: R500 000.00 for malicious prosecution.

[2.] The members of the South African Police Services (the ‘members’) arrested the plaintiff without a warrant on the morning of 28 February 2022 for being in possession of a stolen motor vehicle, to wit a grey Nissan Juke (the ‘vehicle’).[2] The plaintiff was detained at the Motherwell Police Station for two (2) nights. Subsequent to his first appearance at the Motherwell

Magistrates’ Court on 2 March 2022, where the matter was remanded for a formal bail hearing, the plaintiff remained in custody

until 17 March 2022, on which date bail was granted and he was released.

Pleadings:

[3.] In the plaintiff’s particulars of claim it is alleged that the arrest, which was effected without a warrant, was wrongful and unlawful in that the members failed to exercise their discretion lawfully; failed to conduct an investigation to establish whether the plaintiff had committed a schedule 1 office;[3] arrested the plaintiff despite his protestations of innocence; failed to consider less invasive measures of ensuring his attendance at court; did not possess any reasonable suspicion that the plaintiff had committed an offence nor had he committed an offence at the time of the arrest.

[4.] Plaintiff pleads further that the members, acting in concert with the Public Prosecutor, unlawfully and wrongfully set the law in motion on 2 March 2022 by arraigning and prosecuting the plaintiff for robbery

with aggravating circumstances at a time when they knew that there was no credible evidence and/or a prima facie case against the plaintiff.

[5.] It is pleaded further that the Public Protector wrongfully and recklessly opposed the granting of bail and/or the release of the plaintiff without properly considering the merits of the charge against him. The plaintiff appeared in court on three (3) occasions and was unlawfully detained for a period of fifteen (15) nights until 17 March 2022, on which date the Plaintiff was ultimately granted bail by the court and released that day.

[6.] In the defendants’ amended plea, regarding claim one:

a. Whilst the arrest without a warrant was admitted, the unlawfulness thereof was denied.

b. The defendants pleaded that the plaintiff was arrested and detained in terms of s 36 of the General Law Amendment Act, 62 of 1955 – which is the inability to give a satisfactory explanation for possession of the stolen vehicle. The plaintiff was reasonably

suspected of having committed a schedule 1 offence and as such the members where entitled to arrest the plaintiff without a warrant.[4]

c. The reasonable suspicion arose from the following circumstances: the owner/complainant, who had been robbed of his motor vehicle, laid a complaint with the Motherwell Police Station; the complainant contacted the investigating officer to inform him that the stolen vehicle had been located at a carwash at NU7, Ndakana Street, Motherwell; the owner/complainant pointed out the vehicle and the plaintiff (who was washing the vehicle at the time) to the investigating officer and the plaintiff was unable to give a satisfactory explanation for his possession.

d. The plaintiff was arrested with the intention of bringing him to justice and lawfully detained in terms of sections 39 and 50 of the CPA. Contravention of s 36 of the General Law Amendment Act is an offence listed in Part II of schedule 2 of the CPA and as such he could not be released on bail by a member.[5]

e. The Public Prosecutor arraigned and prosecuted the plaintiff on a charge of robbery with aggravating circumstances as contemplated by s 1 of the CPA on the basis of his recent possession.

[7.] Regarding claim two, the defendants:

a. Admitted the plaintiff’s appearance in court on 2 March 2022 and that he was further detained from 2 to 17 March 2022.

b. Pleaded that the plaintiff was suspected of having committed a schedule 1 offence for which a docket had been opened, and which contained sufficient information to warrant the opposition of bail.

c. Pleaded that robbery, involving the use of a firearm, was a schedule 6 offence and in terms of s 60(11)(a) of the CPA, and the court was obliged to order the plaintiff’s detention unless the plaintiff

could adduce evidence of exceptional circumstances which permitted his release.

d. Pleaded that on 2 March 2022, the matter was remanded to the 9 March 2022 for a formal bail application, on which date the matter was further remanded to 17 March 2022 as the investigating officer was on leave. The plaintiff’s detention from 2 to the 17 March 2022 occurred at the instance of the Presiding Magistrate in terms of due process of law and performing a judicial function in the exercise of his/her discretion.

[8.] Plaintiff was the only witness to testify in support of his claims. The defendants called the arresting officer, Sergeant Ntshidi and two prosecutors in the employ of the second defendant, Ms Mnono and Ms Gwala.

The evidence

[9.] The parties agreed that there would be no separation of merits and quantum.

[10.] Regarding the lawfulness of the arrest and detention, the first defendant bears the onus to prove the grounds of justification.[6] That is so because the justification for the detention following an arrest until a detainee’s first appearance continues to rest on the police.[7] The first and second defendants’ also have an onus to establish the lawfulness of the plaintiff’s continued detention from 2 to 17 March 2022.[8]

[11.] The general principle is that the onus rests on the detaining officer to justify the detention because detention is prima facie unlawful.[9] The plaintiff bears the onus only when he alleges that the arresting officer failed to exercise his/her discretion rationally.[10] In respect of malicious prosecution, the plaintiff bears the onus.[11] For the sake of convenience, the plaintiff commenced leading evidence in respect of all three claims.

[12.] Plaintiff’s evidence is that he woke up at home on the morning of 28 February 2022 and left for work at a nearby carwash by foot where he had been working for some 6 months. At the time he was 17 years of age. While at the carwash, and at approximately 08:30, Asive Koyo and Bonke Velpahi arrived at the carwash with the vehicle. Bonke and Asive left the vehicle there to be washed and went to a nearby house[12] to wait.

[13.] Thereafter the owner[13] arrived at the carwash and asked plaintiff who had brought the vehicle to the carwash. Plaintiff informed the owner that it was a man and a lady (their names were not mentioned) and that they were waiting at a nearby house. The owner asked the plaintiff to go to the house and call the person who had brought in the vehicle. Plaintiff complied with the request. He walked to the house and met Bonke there and informed him that someone was looking for him. Bonke responded by threatening the plaintiff with a firearm. Bonke warned the plaintiff not to mention his name.

[14.] Plaintiff returned to the carwash and informed the owner that the person was on their way. Some thirty minutes later the members, being Sgt Ntshidi, the investigating officer, and Sgt Gaqabodi, arrived at the carwash in a marked vehicle. The members asked the plaintiff to accompany them to the house. Plaintiff did so and entered the house (at the request of the members who remained outside) and was informed by someone that Bonke had already left. He conveyed this to the members. They returned to the carwash.

[15.] After a further 25 minutes, Asive arrived at the carwash looking for her sweater,[14] which she had left inside the vehicle. Asive informed the members that she had been with the plaintiff in the vehicle and that the plaintiff had also driven the vehicle. The members confronted plaintiff with Asive’s version, which he denied. He in turn identified her as the lady who had accompanied the man to the carwash. The owner slapped the plaintiff across the face, accusing him of having lied. The members arrested the plaintiff and placed him in the police vehicle. Whilst the plaintiff was in the police vehicle an unknown lady driving a white Nissan Juke arrived at the carwash and reported that her licence plates had been stolen from her vehicle and that the perpetrator(s) had utilised the vehicle whilst committing the theft. She identified Asive as being involved. Asive was then arrested and placed in the police vehicle with plaintiff.

[16.] The plaintiff was taken to the Motherwell Police Station where he was interviewed by Sgt Ntshidi. He identified the person who had brought to the vehicle to the carwash as Bonke, who was known to him.[15] Plaintiff was accused by the members of being untruthful as his version differed from Asive’s version.

[17.] Plaintiff was detained at the Motherwell Police Station from 28 February 2022 until his first appearance on 2 March 2022. According to him, the cells were crowded. He was given an old and dirty blanket and sponge to sleep on. He was not afforded the opportunity to call his family. He was fearful for his life. He was threatened by fellow inmates, who demanded that he give away his food. He did so.

[18.] At the first appearance, he was charged with robbery. The matter was remanded for a formal bail hearing on 9 March 2022.

[19.] After his first appearance, plaintiff was taken to the Rooi Hell Correctional Centre. The plaintiff was searched and told to take off his clothing by fellow inmates at the quarantine centre. His clothes were stolen, and he was given old clothes to wear. Again, the plaintiff was forced to hand over his food to fellow inmates. He remained in the quarantine centre for approximately 10 days. During this time the plaintiff neither had a bed nor mattress to sleep on. In any event, he was too fearful to sleep during the night. The plaintiff was also assaulted by fellow inmates during this time.

[20.] Thereafter, and until 17 March 2022, he was held in the D Section at the Rooi Hell Correctional Centre, where he was again assaulted by fellow inmates.

[21.] The plaintiff’s version remained consistent despite skilled cross-examination by Mrs Bakker who appeared for the defendants. His repeated evidence was that although he knew Bonke’s identity,[16] he did not provide his name nor his address because he was fearful of Bonke, who had threatened him with a firearm. He only provided the members with a description of Bonke and his current location. It was only at the police station that he named Bonke specifically.

[22.] The defendants’ presented the evidence of Sgt Ntshidi,[17] who was the investigating officer appointed to the Motherwell Cas Dockets 206/2/2022[18] and 219/2/2022. The salient features of his evidence in chief are:

a. On the morning of 28 February 2022, and after having met with the complainant[19] and his uncle, he was informed telephonically that the vehicle had been located. Sergeants Nshidi and Gqabodi made their way to the carwash and were met there by the uncle, the complainant and the plaintiff.

b. The uncle conveyed that the plaintiff was found in possession of the vehicle but that according to the plaintiff another male had brought the vehicle to the carwash and was waiting at a nearby house.[20] He was further informed that the plaintiff had gone to the nearby house to call the person. Plaintiff also conveyed this to Sgt

Ntshidi. Bonke’s name was not mentioned. According to plaintiff he did not know this man.

c. Thereafter, the members and plaintiff went to the nearby house. Plaintiff was ‘dragging his feet’. The members entered the house and plaintiff remained outside. A person exited the house and informed the plaintiff that the person they were looking for had left. Plaintiff conveyed this to the members, and they returned to the carwash.

d. Shortly thereafter Asive arrived looking for her sweater, which was in the vehicle. Asive informed the police that she was in the vehicle with plaintiff that morning,[21] together with another male by the name of Bonke Velaphi.[22] She also relayed that Bonke had stolen the licence plates off a white Nissan Juke, and that plaintiff had driven the vehicle to the carwash.

e. Plaintiff accused Asive of lying but it seemed that they knew each other.

f. Plaintiff then informed Sgt Ntshidi that he had been in the vehicle but that he had only driven the vehicle after dropping Bonke off at the nearby house and drove it to the carwash. Asive was then asked to give a statement.

g. The owner of the White Juke arrived and informed the members that the vehicle had been involved in the removal of her number plates.[23] She did not identify plaintiff nor Asive.

h. Both Asive and plaintiff were taken to the police station so that they could provide statements. Plaintiff was placed in a holding cell while Asive gave her statement.

i. Sgt Ntshidi then opened a second docket (Cas No. 219/2/2022) for possession of a stolen vehicle.[24]

j. The following day, 29 February 2022, the plaintiff was charged with possession of a stolen vehicle.[25] He obtained a warning statement from plaintiff.[26] Plaintiff was informed that the members were investigating hijacking and possession. According to Sgt Ntshidi ‘the possession must be linked with primary crime on cas number.’ Hijacking was explained as the secondary charge.

k. At this stage Sgt Ntshidi was trying to locate Bonke.

l. He verified plaintiff’s address. Informed plaintiff’s family of his arrest and made recommendations not to oppose bail.

m. On 2 March 2022 Sgt Ntshidi took both dockets to court but did not stay in attendance as it was only a first appearance.

n. On 9 March 2022 he was unable to attend court as he was on deployment. He decided to oppose bail after consultation with the prosecutor, who informed him that it was schedule 6 offence.

o. At the following court appearance, 17 March 2022, he gave evidence in opposing bail. Bail was granted by the Presiding Magistrate.

p. There were no other less invasive measures that could have been employed to bring the plaintiff to court other than to effect the arrest.

[23.] Under cross-examination the following relevant features were extracted:

a. Sgt Ntshidi was unsure whether contravention of s 36 was a listed schedule 1 offence or not.[27]

b. He arrested the plaintiff because he was unable to give a satisfactory explanation for his possession of the vehicle. He confirmed the plaintiff’s account being that a man had brought the vehicle to the carwash and left it there to be washed while waiting at a nearby house. But as the members could not locate the man, or verify plaintiff’s version, they had to arrest the plaintiff.[28]

c. It was plaintiff’s responsibility to point out the person responsible, as this person could not be located, and plaintiff was found to be in possession, he had to be arrested.

d. He could not recall whether the plaintiff had denied Asive’s version[29] – which contradicted his evidence in chief. Additionally, he tried to deny that he had gained the impression that Asive and

plaintiff knew each other. He failed to record the plaintiff’s denial of Asive’s version in his statement. He also failed to record that the plaintiff admitted to driving the vehicle from the nearby house to the carwash.[30]

e. When he considered the conflicting versions of Asive and plaintiff, his evidence was that the truth was not his main concern.[31] Ultimately, he arrested plaintiff because he was in possession of the vehicle and his ‘alibi’ could not successfully be followed. In the words of Sgt Ntshidi - ‘if the alibi is not taking you anywhere, then he must take full responsibility.’[32]

f. The arrival of the owner of the white Juke was not recorded in the statement.

g. He did not verify the plaintiff’s whereabouts on the morning of 28 February 2022 as it was unimportant. According to Sgt Ntshidi parents would, in any event, lie to protect their children. He was also focused on the possession charge.

h. He was no longer certain about whether the members entered the house or not, which contradicted his evidence in chief, and which also differs from his evidence at the bail hearing.[33]

i. Placed much value on the fact that plaintiff knew Bonke and that he was armed but did not warn the members.

j. Conceded that as a firearm was involved in the hijacking, it was possible that Bonke had threatened plaintiff with a firearm.

k. Conceded that although an officer could grant police bail, it was not their protocol before the first appearance and in any event, he was still investigating the whereabouts of Bonke.

l. Initially was not opposed to bail but after discussion with the prosecutor on 2 March 2022,[34] he decided to oppose bail as the second assailant involved in the robbery could have been the plaintiff. Although he was aware that the complainant could not identify the assailant/s, he could not impose his views on the prosecutor. The decision was made jointly after they discussed the facts. When it was put to him that he had a duty to stand firm in his views why bail should not be opposed, he responded ‘I can’t be a dictator…It was a discussion everyone comes with his point.’

m. At the second appearance, he could have deposed to an affidavit but did not do so. He wanted to take the stand. Because of his unavailability, the bail application was postponed to 17 March 2022.

n. The charge of robbery was withdrawn but not the possession charge. He later conceded that there was no pending case against the plaintiff for possession.

Arrest and initial detention

[24.] The Constitution of the Republic of South Africa, 1996, guarantees the right of security and freedom of the person, including the right ‘not to be deprived of freedom voluntarily or arbitrarily without cause.’[35]

[25.] In terms of s 40(1)(b) of the CPA, a peace officer may, without a warrant, arrest any person reasonably suspected of having committed an offence referred to in schedule 1, other than the offence of escaping from custody, in order to bring the arrested person to justice. Once these jurisdictional facts are present, the discretion whether or not to arrest arises.[36]

[26.] The principles applicable to the exercise of this discretion was aptly summarised in Barnard v Minister of Police by Stretch J:[37]

‘The discretion must be exercised in good faith, rationally and not arbitrarily. This requires that it must be exercised with the objective of bringing the subject before court. Whether or not the discretion was properly exercised should not be judged on the standard of what is best in hindsight. Guidance as to how the discretion ought to be exercised is set forth in the Constitutional Court decision of MR v Minister of Safety and Security,[38] where it was emphasised that the word “may” (as opposed to “must” or “shall”) in s 40(1) is permissive and not mandatory or peremptory, allowing the arresting officer the discretion to weigh and consider the prevailing circumstances in deciding whether an arrest was necessary. It allows for a measure of flexibility because the enquiry is fact-specific. It is “neither prudent nor practical to try and lay down a general rule and circumscribe the circumstances under which police officers may or may not exercise their discretion”, since to do so “might have the unintended consequence of interfering with their discretion and, in the process, stymie them in the exercise of their powers in pursuit of their constitutional duty to combat crime.’

[27.] At issue is whether Sgt Ntshidi entertained a reasonable suspicion that the plaintiff had committed an offence in terms of s 36 of the General Law Amendment Act, 1955, and whether his discretion to arrest the plaintiff was exercised properly.[39] This involves a two-step enquiry.

[28.] Regarding s 40(1)(b), in Mabona and Another v Minister of Law and Order and Others,[40] Jones J held that:

‘The test of whether a suspicion is reasonably entertained within the meaning of s 40(1)(b) is objective (S v Nel and Another 1980 (4) SA 28 E at 33E-H). Would a reasonable man in the second defendant’s position and possessed of the same information have considered that there were good and sufficient grounds for suspecting the plaintiff was guilty of conspiracy to commit robbery or possession of stolen property knowing it to be stolen? It seems to me that in evaluating his information a reasonable man would bear in mind that the section authorises drastic police action. It authorises an arrest on the strength of a suspicion and without the need to swear out a warrant, i.e. something which otherwise would be an invasion of private rights and personal liberty. 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 his disposal must be of sufficiently high quality and cogency to engender him in conviction that the suspect is in fact found guilty. The section requires suspicion but not certainty. However, suspicion must be based on solid grounds. Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion.’

[29.] Given that an arrest is a drastic invasion of a person’s right to liberty and is an impairment of dignity, the courts enquire on a case by case basis whether the arresting officer did in fact exercise this discretion at all, and if so, whether he/she did so properly.[41]

[30.] A court which has to decide whether the suspicion of an arresting officer was reasonable should not ask whether he considered and applied his discretion in establishing a reasonable suspicion, but rather whether, objectively, a suspicion existed that a schedule 1 offence had been committed and whether that suspicion rested on reasonable grounds.[42]

[31.] Turning to s 36 of General Law Amendment Act, 1955, ‘(A)ny person who is found in possession of any goods … in regard to which there is a reasonable suspicion that they have been stolen and is unable to give a satisfactory account of such possession, shall be guilty of an offence and liable on conviction to the penalties which may be imposed on a conviction of theft.’

[32.] The offence consists of three elements: (a) the goods were found in the possession of the accused; (b) there exists a reasonable suspicion that the goods were stolen; and (c) the accused is unable to give a satisfactory explanation in regard to the possession of the goods.

[33.] The onus is on the first defendant to prove all three elements.[43] The first two elements are not in dispute. The question which falls to be answered is whether plaintiff provided a satisfactory account.

[34.] An explanation is ‘satisfactory’ if: (a) it is reasonably possible; and (b) shows that the suspect bona fide believed that his possession was innocent with reference to the purpose of the General Law Amendment Act, which is the prevention of theft.[44] It is therefore required of the possessor to state where he obtained the goods and it must be clear from his statement that his possession was innocent, in the sense that he was entitled to possession.[45] The belief of the possessor need not be a reasonable one.[46]

[35.] At this stage it is apposite to make a few observations regarding the quality of Sgt Ntshidi’s evidence, which failed to inspire any confidence. At times his evidence was vague, and characterised by attempts to justify his actions or inactions. At times he became argumentative and was reluctant to make reasonable concessions. Defendants’ counsel conceded in argument that Sgt Ntshidi was a poor witness. On the evidence before me, he approached the plaintiff’s explanation with disdain and disinterest. His preference of Asive’s version over the plaintiff’s version could not be adequately explained. He could also not explain how he was so easily influenced by the prosecutor in ultimately opposing bail; contrary to his earlier view.[47]

[36.] In chief, when he was asked to comment on the allegation in the particulars of claim that he did not possess a reasonable suspicion at the time of the arrest, he answered ‘I had some suspicions. Complainant said to me people robbed me. He couldn’t identify them as it happened too fast, … pointed a firearm and at night …I had no grounds to say [it was] him but no grounds to say [it was] not him. I was in-between.’

[37.] To my mind the plaintiff’s account of his possession meets the standard set out in Minister of Police v Muller.[48] No offence is committed unless the possessor is unable to give a satisfactory account. The plaintiff’s explanation was reasonably possible and showed that his possession of the vehicle was bona fide and innocent. On the evidence before me, plaintiff worked at the carwash and had worked there for some time. That being said, if the vehicle had indeed been dropped off at the carwash that would have meant that he was entitled to possession. The fact that he did not initially name Bonke is neither here nor there.[49] His explanation remains reasonably possible. Sgt Ntshidi’s explanation that the plaintiff’s ‘alibi is not taking you anywhere, then he must take full responsibility’ is not the correct test to be employed. Under s 36 of the General Law Amendment Act, the plaintiff was under no obligation to successfully

point out the transgressor.

[38.] This brings me to the next question: could Asive’s version, which was denied by plaintiff, influence the plaintiff’s version so as to render it unsatisfactory?

[39.] For the reasons that follow I do not believe so. Asive placed herself in the vehicle by the presence of her sweater. She is not at this stage just an innocent witness. On her own version she witnessed Bonke stealing the licence plates off the white Nissan Juke. Any value to her version must be tempered against these facts, which are in any event only relevant to determining whether or not she should be arrested. It should not have played a role in evaluating the plaintiff’s account of his possession. After all, the crime under s 36 is triggered by an inability to provide a satisfactory account.

[40.] Further and in any event, Sgt Ntshidi could have enquired from the plaintiff’s parents whether he had spent the night at home and left for work by foot. A simple enquiry would have been of assistance in evaluating the authenticity and veracity of plaintiff’s version.[50] Sgt Ntshidi’s explanation that all parents will indubitably lie is speculative. He should have undertaken the enquiry. He did not do so, and no satisfactory explanation was proffered.

[41.] A peace officer who fails to substantiate his suspicion when he is able to do so or has the opportunity to do so, does not act reasonably.[51] Police officials who purport to act in terms of s 40(1)(b) of the CPA should (provided they are able to do so, such as in these circumstances) investigate exculpatory explanations offered by a suspect before they can forming reasonable suspicion for the purposes of a lawful arrest.[52]

[42.] In any event, and even if I am incorrect in my finding that the first defendant failed to prove the jurisdictional fact of reasonable

suspicion, the enquiry does not end there. As I have said, once these facts are shown to be present, the discretion of whether or not to arrest arises. The arresting officer’s decision to arrest must be based on an intention to bring the arrestee to justice. Before a police officer exercises his discretion to arrest, he/she must weigh and consider the prevailing circumstances.[53] As the circumstances in which arrests are effected will rarely be the same, arresting officers should be flexible in their approach to individual cases.[54]

[43.] Similar to the present instance in Maharaj v Minister of Safety and Security, the police arrested the suspect without attempting to verify the information that she had provided.[55] I have already found that the members ought to have investigated the plaintiff’s whereabouts on the morning in question. That finding remains apposite here.

[44.] Additionally, the member failed to investigate whether less invasive methods were available to ensure the plaintiff’s attendance at court.[56] Those being that a written notice calling the plaintiff to attend court. After all the police were aware of his residential and work address. This is further exacerbated by the recordal by Sgt Ntshidi that bail should not be opposed. To my mind, the first defendant, on his own version, failed to exercise the discretion in arresting the plaintiff on the facts that are common cause.

[45.] Accordingly, I find the arrest of the plaintiff and his initial detention[57] to be unlawful. The defendants conceded in argument that the initial detention was unlawful. In the result, Plaintiff succeeds in claim one. I shall return to the aspect of quantum.

Further detention

[46.] Claim two concerns the plaintiff’s detention during the period 2 to 17 March 2022.[58] The plaintiff’s pleaded case against the defendants is:

a. On 2 March 2022 the members acting in concert with the public prosecutor unlawfully and wrongfully set the law in motion by charging the plaintiff with a count of robbery with aggravating circumstances.

b. At the time, they knew or ought to have known that there was no credible evidence and/or prima facie case implicating the plaintiff in the said offence by reason of the following:

i. The plaintiff was performing his daily duties on a public road in full view of the community.

ii. The plaintiff did not raise any suspicion or conceal the vehicle or attempt to alter anything to render the vehicle unidentifiable.

iii. The plaintiff informed the police that he was innocent and did not know that the vehicle was stolen.

iv. Nothing linked the plaintiff to the stolen vehicle besides from his performance of his duties (at the carwash) and it is unreasonable to expect him to be able to point out the person who had brought the vehicle to the carwash.

c. The public prosecutor acted wrongfully and/or recklessly in opposing bail and without properly considering the merits, which resulted in a further detention (as set out above).

d. When opposing bail, the members and the prosecutor owed the plaintiff a duty of care to assess the strength of the state’s case and to determine whether there was a prima facie case against him and failed to properly exercise their discretion not to oppose bail.

[47.] The defendants pleaded that the plaintiff was reasonably suspected of having committed a schedule 1 offence and that the relevant case docket contained sufficient information to warrant his prosecution and the opposition of bail.

[48.] Furthermore, it was pleaded that robbery, involving the use of a firearm, is an offence listed in schedule 6 of the CPA and in terms of s 60(11)(a), the court was obliged to order the plaintiff’s detention unless the plaintiff adduced evidence to satisfy the court that exceptional circumstances permitted his release.

[49.] Thus, the plaintiff’s detention from 2 to 17 March 2022 occurred pursuant to a detention order issued at the instance of the Presiding Magistrate and occurred in terms of due process. The Presiding Magistrate having performed a judicial function in this exercise of this discretion.

[50.] Mr Thompson, on behalf of the plaintiff, submitted that the SAPS had a duty to bring all information to the attention of the prosecutor

which would be relevant to the exercise of the Magistrate’s discretion and this obligation remained on the members for as long as that information remained undisclosed.[59] The prosecutor also had a duty to place before the court information relevant to the exercise of the court’s discretion.[60]

[51.] It was submitted on behalf of plaintiff that the first defendant failed in that:

a. Sgt Ntshidi dropped off the two dockets but did not remain in attendance on the first appearance, which in turn meant that no proper deliberative judicial enquiry was held on that day.

b. He failed to inform the prosecutor that plaintiff denied Asive’s version and implicated her as being one of the persons in the vehicle.

c. The plaintiff’s whereabouts on the morning of 28 February 2022 had not been verified.

d. The plaintiff’s version that the owner of the white Juke had implicated Asive as being one of the perpetrators was not recorded in the statements.[61]

[52.] Insofar as the second defendant is concerned, the alleged failure was that:

a. The prosecutor did not inform the court from the onset that the investigating officer was not opposed to bail, which was a breach of their duty to place all relevant information before the court.[62]

b. There was no factual or legal basis upon which it could be contended that there was a prima facie case against the plaintiff in respect of robbery, as the complainant could not identify the assailant/s.

c. The docket did not contain sufficient facts and/or evidence sufficient for the conviction of robbery and the decision to prosecute the plaintiff on this charge[63] but this ultimately resulted in the plaintiff attracting an onus at bail stage.

d. The prosecutor ought to also have known that the first appearance would result in plaintiff being detained without a proper deliberative

judicial enquiry being undertaken.[64]

[53.] The defendants conceded in argument before me that the plaintiff’s further detention for the period 2 to 17 March 2024 was unlawful. I have notwithstanding this concession (which is correct in my view) deemed it necessary to detail the failures by the defendants with a view to providing guidance to future litigants. With that in mind, I proceed with my discussion.

[54.] Section 12(1)(a) of the Constitution guarantees the rights of security and freedom of a person, which include the right ‘not to be deprived of freedom arbitrarily and without just cause’. Section 35(1) of the Constitution provides that anyone who is arrested for allegedly committing an offence has the right, amongst

others –

‘(d) 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 of ordinary court hours or on a day which is not an ordinary court day;

(e) at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released;

(f) to be released from detention if the interests of justice permit, subject to reasonable conditions.’

[55.] The rights enshrined in s 35 of the Constitution are echoed in s 50 of the CPA.

[56.] In the present instance, the plaintiff was detained at the instance of the Presiding Magistrate on 2 March 2022. The bail application was again remanded on 9 March 2022 to 17 March 2022. The question then arises what role does the remand orders by the Magistrate play insofar as the plaintiff’s claim for further detention?

[57.] In seminal judgment of Theron JA (writing for the majority) in De Klerk v Minister of Police,[65] the following was said:

‘[81] Constable Ndala subjectively foresaw the precise consequences of her unlawful arrest of the applicant. She knew the applicant’s further detention after his court appearance would ensue. She reconciled herself to that consequence. What happened in the reception court was not, to Constable Ndala’s knowledge, an unexpected, unconnected or extraneous causative factor – it was the consequence foreseen by her, and one which she reconciled herself to. In determining causation, we are entitled to take into account the circumstances known to Constable Ndala. These circumstances imply that it would be reasonable, fair, and just to hold the respondent liable to the harm suffered by the applicant that was factually caused by his wrongful arrest. For these reasons, and in the circumstances of this matter, the court appearance and the remand order issued by the Magistrate do not amount to fresh causative event breaking the causal chain.’[66]

…

‘[86] The crucial fact in this matter is that Constable Ndala subjectively foresaw the harm arising from the mechanical remand of the applicant after his first appearance. She knew the applicant’s further detention after his court appearance would be the consequence of her unlawful arrest of him. She reconciled herself with this knowledge in proceeding to arrest him. In addition, she knew that her mere note inside the docket recommending bail would amount to nothing at this first appearance. That the judicial process should have had a different tenor and outcome seems to me to be beside the point. The point is that Constable Ndala knew it would not.’[67]

[58.] The liability of the police for the detention post-court appearance should be determined on application of the principles of legal

causation, having regard to the applicable tests and policy considerations.[68] This may include a consideration of whether the post-appearance detention was lawful and serves as a measure of control to ensure that liability is not extended too far.[69] The conduct of the police after an unlawful arrest is to be evaluated and considered in determining legal causation. Moreover, each case must be determined on its own facts, as there is no general rule that can be applied to dogmatically determine liability. The determination of legal causation is based on the consideration of various factors which, inter alia, include direct consequences, reasonable foreseeability and the presence of a novus actus interveniens.[70]

[59.] In Vitshima v Minister of Police and Another[71] (‘Vitshima’) Govindjee J held – ‘constitutional provisions oblige police officials to establish before arresting and detaining a person, the justification and lawfulness of the arrest and detention, including any further detention if the underpinning facts are within the knowledge of that official. It is the duty of the police official who has arrested a person for purposes of having them prosecuted to give a ‘fair and honest statement of the relevant facts to the prosecutor, leaving it to the latter to decide whether to prosecute or not’. Where there are no facts which justify further detention, the investigating officer should inform the prosecutor accordingly, the purpose being to eventually place the magistrate in an informed position to determine whether the person should be detained further. The defendants would be liable post-appearance detention where their wrongful and culpable conduct materially influenced the decision of a court to remand the plaintiff in custody.’

[60.] Turning to the present instance, it was Sgt Ntshidi’s evidence that:

a. Formal bail hearings were not undertaken at the first appearance.

b. He was not in a position to attend court on 9 March 2022 but conceded that it would have been possible to depose to an affidavit but that it wasn’t their protocol to do so.

c. His initial recommendation not to oppose bail, which is evidenced from his entry in the investigation diary dated 1 March 2022 states that ‘suspect is the first time offender and he [is] just scared to show/point the accused suspect to us. He can be released on bail with strict conditions.’

d. As plaintiff did not successfully point out Bonke, he did not view the further detention as breach of his duty, nor did he view this as a punishment.

e. His stance changed after discussion with the prosecutor on 2 March 2022, although he confirmed that there were no new facts available at the time.

[61.] Accordingly, I find in line with the dictum of De Klerk above that Sgt Ntshidi subjectively foresaw the harm arising from the mechanical remand and following that, that plaintiff would be further detained due to his unavailability to attend court. He reconciled himself with these consequences. In the premise the remand orders do not amount to a fresh causative event.[72] In the result plaintiff’s second claim against the first defendant succeeds.

[62.] I now turn to role of the public prosecutor in claim two. The defendants led the evidence of Ms Monono, an acting regional prosecutor at the New Law Courts in Gqeberha. She joined the National Prosecuting Authority in January 2021 but during the relevant period was working as a prosecutor at the Motherwell Criminal Law Courts.

[63.] Her evidence in chief was that she was presented with two dockets[73] one for hijacking and one for possession.[74] In consultation with Ms Gwama, the screening prosecutor (who also gave evidence at the trial), and on perusal of the dockets, a

decision was taken to prosecute the plaintiff for robbery with aggravating circumstances[75] and possession. She could not specifically recall discussing the dockets with Sgt Ntshidi, although mentioned that she would have

consulted with him prior to the bail application.

[64.] According to Ms Monono, plaintiff applied for legal aid at the first appearance. She considered that Sgt Ntshidi was not opposed to bail but decided that as it was a schedule 6 offence, the onus should be on the plaintiff. In arriving at the decision, she relied on was the statement of the complainant; the statement of the eyewitness (Asive) and the fact that the plaintiff was found in recent possession.[76] The bail hearing could not be heard on 2 March 2022 as accused had applied for legal aid; the investigating officer was not present; and the SAPS criminal profile report had not yet been prepared.[77] It was again postponed on 9 March 2022 for the investigating officer’s attendance at court, as his oral testimony would carry more probative value than an affidavit.

[65.] Ms Monono’s decision to oppose bail was based on the likelihood that the plaintiff would endanger the eyewitness and jeopardise the justice system. In this regard she referenced that the plaintiff responded to Asive with anger when he had been exposed in a lie (an inference she sought to draw). She further inferred that plaintiff had tipped off Bonke when he met with him at the nearby house.

[66.] Under cross-examination, Ms Monono conceded that the only statement in the docket under Cas No. 206/2/2022[78] was that of the complainant which indicated that he had been hijacked by two African males, neither of whom he could identify.[79]

[67.] According to Ms Monono in weighing up plaintiff’s version, and based on inferential reasoning, she reached the conclusion that the plaintiff’s version was not reasonably possibly true. She placed weight on the fact that he had lied about knowing Bonke’s identity, as opposed to Asive’s version which she considered credible.[80]

[68.] When it was put to her that the plaintiff had been threatened by Bonke which was why he had not initially disclosed Bonke’s identity, her response was that there had also been a ‘trend of dishonesty’ which was the failure to mention his name and that Bonke was known to him.

[69.] She conceded that plaintiff and Asive’s versions were mutually destructive, as they cannot both be true. She did not consider why Asive may have cause to falsely implicate the plaintiff, but that this would in any event only be one of the factors to consider.

[70.] It is convenient at this stage to deal with the evidence of the defendants’ second witness, Ms Gwama, a prosecutor in the employ of the Motherwell Criminal Court, who was tasked with screening the two dockets. It was her evidence that she agreed with the charges laid against him. She also called for further investigations to be undertaken. She wanted to present the complainant, and his witness, with an opportunity to identify plaintiff. However, due to complainant being uncooperative, this never took place, and the charges were withdrawn.[81] Nothing much turned on her evidence, and neither party sought to rely on her evidence in argument.

[71.] In turning to the law, as the plaintiff was detained on a schedule 6 offence, he faced an onus and was obliged to adduce evidence which satisfied the court that exceptional circumstances existed which in the interests of justice permitted his release.[82] In Vitshima[83] Govindjee J had the following to say on that score:

‘Because this implicates the freedom of the person concerned, and triggers the corresponding constitutional right in terms of s 12(1)(a), the police and prosecutor may be found to have a public law duty to assist the court in giving effect to, and protecting this right. The nature of the duty must be determined on the facts, subject to the existence of a charge and the underlying decision to charge the accused. In appropriate circumstances, neither the police nor the prosecutor would be relieved from disclosing to the court that there is an absence of evidence to substantiate the charges, or that the only evidence implicating the accused is very weak, or, for example, entirely dependent upon the admission of hearsay evidence emanating from a co-accused:

“A failure by the prosecutor to inform the court of the absence of evidence implicating the accused in the charge would leave the court with the impression that such evidence does exist. To allow the court to proceed to exercise its function…from that premise, is in my view tantamount to misleading the court. It is in conflict with the role of a prosecutor in criminal proceedings. Whether or not there are sufficient grounds for a charge as envisaged in section 60(11)(a) is a matter which would fall within the knowledge of the police and the prosecution. It is a decision which cannot be made arbitrarily and without a proper consideration of the evidence. The absence of evidence is a matter which is accordingly relevant to the proceedings, and would place a duty on the prosecutor to bring that to the court’s attention, particularly, as in the present matter, when the police docket is in the possession of the prosecutor.”[84]

[72.] The decision by the prosecutor to arraign the plaintiff on a charge of robbery with aggravating circumstances when the complainant had said under oath that he was unable to identify his assailants, cannot be said to be justified. There was no evidence linking the plaintiff to the charge. We already know that this fact was within the knowledge of Sgt Ntshidi and I have already dealt with my findings in that regard. The situation became exacerbated by two further remands in the circumstances set out above.

[73.] Furthermore, what is referred to by Ms Monono as inferential reasoning regarding the plaintiff’s recent possession fails to pass muster. As was explained in R v Blom:[85]

‘1. The inference sought to be drawn must be consistent with all the proved facts, if not the inference cannot be drawn.

2. The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct.’

[74.] Inference must be distinguished from conjecture or speculation.[86] There can be no inference unless there are objective facts from which to infer other facts which it is sought to establish.[87] To my mind the plaintiff’s explanation as to how he came to possess the vehicle is a reasonable one, which cannot be excluded.

Furthermore, the prosecutor failed to advise the Presiding Magistrate that the investigating officer had recommended bail.

[75.] A prosecutor may not act arbitrarily, this means that ‘a prosecutor’s function is not merely to have the matter placed

on the roll to then simply be postponed for further investigation. A prosecutor must pay attention to the contents of the docket. As set out above, a prosecutor must act with objectivity and must protect the public interest.’[88]

[76.] Accordingly, I find that the first and second defendants subjectively foresaw the harm and reconciled themselves with this knowledge. The plaintiff was entitled to have his freedom protected by the state. It was not. The first and second defendants are to be held jointly liable to the plaintiff for claim two. In these circumstances to impose liability on the defendants for the entire period of detention (25 nights) would not exceed the bounds of reasonableness, fairness, and justice.[89] I shall return to the aspect of quantum momentarily.

Malicious prosecution

[77.] On the pleadings, claim three, which is against the first and second defendants, is formulated as follows:

a. On 2 March 2022 the first defendant acting in concert with the second defendant set the law in motion by laying an unfounded charge of robbery with aggravated circumstances against the plaintiff.

b. The second defendant bears a duty to objectively protect the public interest and assist the court in ascertaining the truth. The second defendant abused the process of court by intentionally and wrongfully

setting the law in motion without exercising due diligence and by acting arbitrarily.

c. The second defendant foresaw the possibility that they were acting wrongfully but nevertheless continued and were reckless as to the consequences of their actions in that: (a) they were aware that their actions would in all probability impair the plaintiff’s dignity, good name and privacy; (b) took the decision to prosecute and oppose bail, the charges being ultimately withdrawn on 5 September 2022; and (c) acted in a manner that showed recklessness to the possible consequences of such conduct.

[78.] In the plea, the defendants denied that they acted without reasonable and probable cause and pleaded that all functions performed by the Public Prosecutor were undertaken in good faith. Reliance was placed on s 42 of the National Prosecuting Authority Act, 32 of 1998. It was further pleaded that the case was struck from the roll due to non-cooperation by the complainant. It was also denied that first defendant instigated the proceedings against plaintiff.

[79.] Regarding the formulation of the claim three, there are ambiguities in the particulars of claim concerning whether the claim was instituted against both defendants or just the second defendant. Due to the nature of pleading, this ambiguity continues in the plea. However, at trial, counsel for the parties presented their evidence and argument on the basis that the third claim was against both defendants. Accordingly, it is dealt with on that basis.

[80.] In order to succeed with malicious prosecution[90] as an iniuiria, the following elements must be pleaded and proved: (a) the defendant must have instigated the proceedings (also known as setting the law in motion); (b) the defendant must have acted without reasonable and probable cause; (c) the defendant must have acted with malice (or animo iniuriandi); and (d) the prosecution must have failed.[91] The plaintiff bears the onus of proving these elements.[92]

[81.] I turn to the first element. In Lederman v Moharal Investments (Pty) Ltd[93] the process of setting the law in motion was explained thus:

‘Inherent in the concept ‘set the law in motion’, ‘instigate or institute the proceedings’, is the causing of a certain result, i.e a prosecution, which involves the vexed question of causality. This is especially a problem where, as in most instances, the necessary formal steps to set the law in motion have been taken by the police and it sought to hold someone else responsible for the prosecution.’

[82.] On the pleadings it is denied that the first defendant played a role in instigating the proceedings,[94] however, viz-a-viz the second defendant, the first element was not disputed. I have already found that the investigating officer failed to place relevant

information in the statements forming part of the docket.[95] This was conceded by defendants’ counsel.[96]

[83.] Sgt Ntshidi’s retort that such an investigation was unnecessary since he was arresting plaintiff for possession and not robbery stands to be rejected. It is the prosecutor who decides what charges will be laid against an accused, not the investigating officer. The prosecutor makes the decision based on what is before him/her in the docket. Objectively, on the facts, the plaintiff was charged with robbery. Had the investigating officer made enquiries into the veracity of the plaintiff’s version, this would have gone a long way towards establishing the bona fides of the plaintiff’s possession. It would also have cast serious doubt on Asive’s version.

[84.] Ms Monono conceded under cross-examination that had she known that plaintiff had denied Asive’s version and had pointed to her as being in the vehicle when it was brought to the carwash, she may well have reconsidered her position and not opposed bail. Unfortunately, we are left to postulate the effect that such information would have had on the prosecution.

[85.] For these reasons, the first element is met.[97]

[86.] In turning to the second element, which is the main thrust of the pleaded defence, the plaintiff must establish that the defendants acted with reasonable and probable cause. Reasonable and probable cause means an honest belief based on reasonable grounds that the institution of proceedings were justified.[98] The test was enunciated in Beckenstrater v Rotter and Theunissen:[99]

‘When it is alleged that a defendant had no reasonable cause for prosecuting, I understand this to mean that he did not have such information as would lead a reasonable man to conclude that the plaintiff had probably been guilty of the offence charged; if, despite his having such information, the defendant is shown not to have believed in the plaintiff’s guilt, a subjective element comes into play and disproves the existence, for the defendant, of reasonable and probable cause.’

[87.] Put differently the defendants must not only ‘subjectively have had an honest belief in the guilt of the plaintiff, but his belief must have been objectively reasonable, as would have been exercised by a person using ordinary care and prudence.’[100] The concept of guilt has been open to misunderstanding. It is not necessary for the defendants to believe in the probability of a conviction, it is rather the existence of a belief that there exists sufficient grounds for bringing the accused to trial.[101]

[88.] A decision to prosecute or not must be shaped in substance by an impartial and objective assessment of the prima facie evidence as contained in the docket, as well as considerations of public interest and the law.[102] The defendants should only proceed when the case is well-founded upon evidence reasonably believed to be reliable and admissible.[103]

[89.] There must be a reasonable prospect of conviction otherwise a prosecution should not be commenced.[104] It must be assessed whether there is sufficient admissible evidence to provide a reasonable prospect of a successful prosecution.[105] A ‘sensible discretion’ and ‘circumspection’ should be exercised in deciding whether or not to prosecute.[106]

[90.] In terms of s 179(2) of the Constitution, the prosecuting authority has the power to institute proceedings on behalf of the state and carry out the necessary functions incidental thereto. This duty was explained in Carmichele:[107]‘…However, prosecutors have always owed a duty to carry out their public functions independently and in the interests of the public. Although the consideration of bail is pre-eminently a matter for the presiding judicial officer, the information available to the judicial officer can but come from the prosecutor. He or she has a duty to place before the court any information relevant to the exercise of the discretion with regard to the grant or refusal of bail and, if granted, any appropriate conditions attaching thereto.’

[91.] According to the evidence of Ms Monono her decision to prosecute the plaintiff was based on what was contained in the docket. I have already found it to be lacking in several respects. Her decision to charge the plaintiff for robbery[108] stands in stark contrast with the evidence contained in the complainant’s statement. Furthermore, her use of the doctrine

of recent possession fails to pass muster. The version of Asive takes the issue no further – her involvement was after the fact. Asiwe does not talk to the charge of robbery.[109]

[92.] To my mind the Ms Monono and Sgt Ntshidi were not possessed of the honest belief based on reasonable grounds that the institution of the proceedings were justified.[110] The second element is found to be met.

[93.] This brings me to the third element.

[94.] As was explained in Moleko,[111] animus iniuriandi includes not only the intention to injure, but also the consciousness of wrongfulness:

‘In this regard animus injuriandi (intention) means that the defendant directed his will to prosecuting the plaintiff (and thus infringing his personality), in the awareness that reasonable grounds for 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 grounds 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, will be lacking. His mistake therefore excludes the existence of animus injuriandi.’

[95.] The court in Moleko goes further to say ‘(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, 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.’[112]

[96.] On the evidence before me, as well as the probabilities, I cannot reach the conclusion that the legal process employed by the defendants were used improperly or for a purpose other than as set out in terms of the empowering legislation.[113] It is so that whilst there are deficiencies in the conduct of the defendants, negligence (or even gross negligence) does not suffice.

The plaintiff presented no evidence to demonstrate that the defendants were conscious that their conduct was wrongful but nevertheless continued to act reckless of the consequences.

[97.] For these reasons, the third element is not met, and a discussion of the fourth element is not required. Claim three is dismissed.

Quantum

[98.] That leaves the determination of the amounts payable to the plaintiff for claims one and two. These claims are forms of iniuria and the amount of compensation is calculated according to what is fair and just in the circumstances of each case.[114]

[99.] The assessment of the amount of damages to award a plaintiff who was unlawfully arrested and detained is not a mechanical exercise that has regard only to the number of days spent in detention. Significantly, the duration of detention is not the only factor.

A court has to consider what would be a fair and reasonable award. Other factors that a court must consider includes: (a) the circumstances under which the arrest and detention occurred; (b) the presence or absence of improper motive or malice on the part of the defendant; (c) the conduct of the defendant; (d) the nature of the deprivation; (e) the status and standing of the plaintiff; (f) the presence or absence of apology or satisfactory explanation of the events by the defendant; (g) awards in comparable cases; (h) publicity given to the arrest; (i) the simultaneous invasion of other personality and constitutional rights; and (j) contributory action or inaction of the plaintiff.[115]

[100.] In the exercise of this discretion, the remarks by the Supreme Court of Appeal in Tyulu v Minister of Police are insightful ‘(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. 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 which any arbitrary deprivation of liberty is viewed in our law. I readily concede that it is impossible to determine an award of damages for this kind of iniuria with any kind of mathematical accuracy. Although it is always helpful to have regard to awards made I 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 the facts of the particular case and to determine the quantum on such facts…’

[101.] In Minister of Safety and Security v Seymour[116] the court, having reviewed a number of previous awards, concluded that there was no discernible pattern to the awards other than that courts were not extravagant in compensating the loss.

[102.] With that in mind I have considered the comparable cases presented to me in argument by counsel. It must be borne in mind that no two cases are the same.

[103.] Returning to the facts, the plaintiff was 17 at the time of his arrest. He was employed at a carwash. I have considered his personal and social circumstances. The circumstances of the arrest. The conduct of the defendants together with my finding of lack of malice. The conditions under which he was detained, which went unchallenged. The duration of his detention being 25 nights and the disdain and apathy under which his personal freedom and liberty were handled. No apology or satisfactory explanation was proffered. To the contrary attempts were made by the witnesses to justify their actions and/or inactions.

[104.] I am of the view that the amount of R100 000.00 for the unlawful arrest and detention would be fair and appropriate. For the further detention of 15 nights, an amount of R350 000.00 is found to be suitable.

[105.] As the plaintiff has been substantially successful in his claims, there is no reason why the costs should not follow the result for claims one and two. The same principle applies to claim three. The defendants should be awarded their costs. This brings me to the applicable scale. Having regard to the complexity of the matter which concerns the vindication of constitutional rights, the value of the claim, the duration of the trial, the number of witnesses called, and that abled counsel represented the parties (which in turn was of assistance to the court), I agree with the legal representatives that scale B is appropriate.

[106.] In the circumstances, I issue the following order:

The order

1. Judgment is granted in favour of the plaintiff against the defendants in respect of claims one and two.

2. In respect of claim one, the first defendant is ordered to pay to the plaintiff a sum of R100 000.00 (one hundred thousand rand)

for the unlawful arrest and initial detention of the plaintiff for the period 28 February to 2 March 2022.

3. In respect of claim two, the first and second defendants are ordered jointly and severally, the one paying the other to be absolved, to pay to the plaintiff the sum of R350 000.00 (three hundred and fifty thousand rand) for the further detention for the period of 2 to 17 March 2022.

4. The plaintiff’s claim three is dismissed with costs on scale B.

5. Interest on the aforesaid amounts at the prescribed legal rate shall run from date of judgment until date of payment.

6. The costs in respect of claims one and two on scale B shall be paid by the defendants jointly and severally, the one paying the other to be absolved.

T ROSSI

ACTING JUDGE OF THE HIGH COURT

Appearances:

For the plaintiff:

Mr A Thompson

Plaintiff’s counsel

Magqabi Seth Zita Inc.

14 Market Street

Office 14 Harmony Building

Gqeberha

Ref: Mr Fulanisi

For the defendants:

Mrs Bakker

Defendants’ counsel

State Attorney

29 Western Road

Central

Ref: Mr L Potgieter

Matter heard on: 20, 22 March 2024 and 2 to 5 July 2024

Judgment delivered on: 28 November 2024

[1] The second defendant plays no role in claim one.

[2] With registration number and letters HDD 488 EC.

[3] Schedule 1 of the Criminal Procedure Act, 51 of 1977 (the ‘CPA’). Schedule 1 includes offences for which the perpetrator may be incarcerated for more than six months without the option of a fine.

[4] Section 40(1)(b) of the CPA.

[5] Section 59(1)(a) of the CPA.

[6] Minister of Law and Order v Hurley (‘Hurley’) 1986 (3) SA 538 (A) at 589E-F. See also Minister of Police and Another v Du Plessis [2013] ZASCA 119; 2014 (1) SACR 217 (SCA) par 17.

[7] Which was on 2 March 2022.

[8] Payi v Minister of Police and Another (‘Payi’) (2063/2019) [2024] ZAECQBHC 14 (22 February 2024) par 6.

[9] Hurley supra 589E-F.

[10] Payi supra par 6.

[11] Minister of Safety and Security v Lincoln (‘Lincoln’) (682/2019) [2020] 3 All SA 341 (SCA); 2020 (2) SACR 262 (SCA) par 21.

[12] According to the evidence of the plaintiff, the house was some 30 metres away from the carwash and was visible from the carwash.

[13] Described by the plaintiff as an elderly man. Subsequent evidence revealed that he was not the owner nor the complainant, but the uncle of complainant, who is the son of the owner.

[14] On occasion also referred to as a jersey.

[15] Previously he had only described what he looked like but had not mentioned his name nor that he was known to plaintiff.

[16] His evidence was that he also knew where Bonke lived.

[17] A detective sergeant currently stationed at the Mount Road Police Station in the Mount Road Vehicle Crime Unit. He was appointed as detective in 2020.

[18] The docket was opened for the charge of hijacking.

[19] Who later turned out to be the son of the owner of the vehicle.

[20] The uncle and complainant were not called to verify this version. An objection of hearsay was noted by plaintiff’s counsel.

[21] Whom she referred to as ‘Faffa’.

[22] She also provided Bonke’s residential address to the members.

[23] In fact, one of her licence plates remained on the vehicle. The owner of the white Nissan Juke however declined to open a case.

[24] Cas No. 219/2/2022

[25] As opposed to hijacking as this is not their protocol if a person is found to be in possession of a vehicle more than 12 hours after the event.

[26] Which he took down word for word.

[27] Contrary to his evidence in chief which was that he thought it was a schedule 5 listed offence.

[28] Plaintiff could not present evidence for the members not to arrest him.

[29] Also not recorded in his statement that plaintiff denied Asive’s version.

[30] Which was not the evidence of the plaintiff but his evidence in examination in chief.

[31] He preferred Asive’s version because plaintiff was found in possession and Asive only came to get her sweater.

[32] Further under cross-examination he explained ‘I was following each thing he told me. I go to the house and will arrest if I find Bonke but I couldn’t do it. I had no further to go.’

[33] Which indicated that they had entered the house.

[34] Sgt Ntshidi’s entry in the investigation diary on 1 March 2022 reads ‘Suspect is the first time offender and je just scared to show/point the actual suspect to us. He can be released on bail with strict conditions.’ (See Defendants’ trial bundle p 77).

[35] Section 12(1)(a) of the Constitution.

[36] Duncan v Minister of Law and Order 1986 (2) SA 805 (A) 818G-H.

[37] Barnard v Minister of Police (‘Barnard’) [2019] 3 All SA 481 (ECG) par 10.

[38] MR v Minister of Safety and Security 2016 SACR 540 (CC) par 42 et seq.

[39] Sekhoto supra par 28.

[40] Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) 658E-H. My own emphasis is added.

[41] Barnard supra par 11.

[42] Barnard supra par 34.

[43] Osman and another v Attorney-General of Transvaal 1998 (1) SACR 28 (T) 29B-H.

[44] Minister of Police v Muller (‘Muller’) 2020 (1) SACR 432 (SCA) par 19.

[45] Ibid.

[46] S v Aube 2007 (1) SACE 655 (W) 658D-F.

[47] An aspect which becomes relevant hereunder.

[48] Ibid.

[49] Plaintiff named Bonke at the police station. This is included in his warning statement.

[50] Barnard supra par 37.

[51] Barnard supra par 35.

[52] Ibid. See also Mabona supra quoted above.

[53] Barnard supra par 39.

[54] Ibid.

[55] Maharaj v Minister of Safety and Security Unreported KZN case number 11275/2012, 5 October 2017 par 37.

[56] Although it has been authoritatively held not to be a fifth jurisdictional factor, this does not mean that a method of securing

attendance may be simply ignored – Barnard supra par 46 to 48.

[57] Plaintiff’s first appearance was on 2 March 2022. His initial detention is from 27 February 2022 to 2 March 2022.

[58] A period of 15 nights.

[59] Mahlangu and another v Minister of Police 2021 (2) SACR 595 (CC) par 37.

[60] Carmichele v Minister of Safety and Security and another (Centre for Applied Legal Studies Intervening) (‘Carmichele’) [2001] ZACC 22; 2001 (4) SA 938 (CC) par 72.

[61] No reference to this interaction is recorded in Sgt Ntshidi’s statement nor is it recorded in plaintiff or Asive’s

statements. It was plaintiff’s evidence that this took place.

[62] Carmichele supra par 72.

[63] Robbery with aggravating circumstances.

[64] De Klerk v Minister of Police [2019] ZACC 32 par 104 to 106 (per Cameron JA, dissenting judgment)

[65] De Klerk v Minister of Police (‘De Klerk’) [2019] ZACC 32; 2020 (1) SACR 1 (CC) par 81.

[66] My own emphasis.

[67] De Klerk supra par 86 – my own emphasis.

[68] Payi v Minister of Police and Another (‘Payi’) (2063/2019) [2024] ZAECQBHC 14 (22 February 2024).

[69] Payi supra par 47.

[70] Ibid – citing De Klerk supra par 65.

[71] Vitshima v Minister of Police and Another (‘Vitshima’) (2496/2020) [2024] ZAECQBHC 37 par 59.

[72] Which is in line with the decision of Woji v Minister of Police (‘Woji’) [ 2014] ZASCA 108; 2015 (1) SACR 409 (SCA) par 27 to 28 where it was found that the existence of a detention order does not preclude a determination of the legality of the manner in which the court exercised its discretion in granting that order, and that conduct, including an omission, which constitutes a breach of a public law duty may render an arrested person’s detention after his appearance in court unlawful for purposes of a delictual claim for damages.

[73] Cas No. 206/2/2022 and Cas No. 209/02/22.

[74] Contravention of s 36 being a competent verdict for robbery.

[75] According to Ms Monono, the addition of the aggravating circumstances because of the doctrine of recent possession; the robbery having taken place in the early hours of the 27th and possession taking place on the 28th February 2022.

[76] This has been explained as a common sense observation on proof of facts by inference – S v Parrow 1973 (1) SA 603 (A) 604.

[77] The plaintiff has no prior criminal record.

[78] In the possession docket (Cas No. 219/2/2022) there was the investigating officers’ statements, Asvie’s statement

and the plaintiff’s statement.

[79] This was not in dispute.

[80] As Asive placed herself in the vehicle.

[81] The defendants contend that the charges were only provisionally withdrawn.

[82] Section 60(11)(a) of the CPA.

[83] Vitshima supra par 60 – footnotes omitted.

[84] Singatha and Another v Minister of Police and Another (‘Singatha’) [2015] ZAECBHC 19 par 42 to 43.

[85] R v Blom 1939 AD 188 at 202-203.

[86] S v Essack and another 1974 (1) SA 1 (A) 16D.

[87] Ibid.

[88] Woji supra par 27 to 28.

[89] Payi supra par 51 – citing De Klerk supra par 87.

[90] Which is described as an abuse of the process of the court by intentionally and wrongfully setting the law in motion on a criminal

charge – WA Joubert and JA Faris, The Law of South Africa (‘LAWSA’), 3ed, Volume 28 Part 1, pp 6 to 7.

[91] Payi supra par 52.

[92] In Oletsise N.O v Minister of Police [2023] ZACC 35; 2024 (2) BCLR 238 (CC) par 60, the Constitutional Court, when drawing a distinction between unlawful arrest and malicious prosecution, said the following: ‘…[M]alicious prosecution is constituted by: (a) setting the law in motion against a claimant; (b) lack of reasonable and probable cause on the part of the defendant; (c) malice or animus iniuriandi; and (d) termination of criminal proceedings in the claimant’s favour. As far as the onus is concerned, here, unlike a claim based on unlawful arrest and detention, it rests of the claimant in respect of all the elements of the delict, including that of malice or animus iniuriandi.’

[93] Lederman v Moharal Investments (Pty) Ltd [1969] 1 All SA 297 (A); 1969 (1) SA 190 (A) 197A.

[94] Or put differently, whether the first defendant was actively instrumental in the prosecution of the charges against the plaintiff

– see Payi supra par 58.

[95] A fair and honest statement of facts – Prinsloo and another v Newman 1975 (1) SA 481 (A) 492F-G.

[96] See defendants’ heads of argument at par 24.1.

[97] Minister for Justice and Constitutional Development v Moleko (‘Moleko’) [2008] 3 All SA 47 (SCA) par 10.

[98] LAWSA supra p 11.

[99] Beckenstrater v Rotter and Theunissen 1955 (1) SA 129 (A) 136A-C – my own emphasis.

[100] Prinsloo and Another v Newman 1975 (1) SA 481 (A) 495H – my own emphasis added.

[101] Singatha supra par 14.

[102] S v Doorewaard (‘Doorewaard’) [2020] ZASCA 155; [2021] 1 All SA 311 (SCA) par 83 (per Ponnan JA writing in a separate consenting judgment).

[103] Ibid.

[104] Ibid.

[105] Ibid.

[106] Ibid. See Ledwaba v Minister of Justice and Others (947/2022) [2024] ZASCA 17 (16 February 2024) par 23.

[107] Doorewaard supra par 72.

[108] CR Snyman, Criminal Law, 6ed, p 508 contains the following definition: ‘Robbery consists of theft of property by unlawfully and intentionally using: (a) violence to take the property from somebody else; or (b) threats of violence to induce the possessor of the property to submit to taking of the property.’

[109] Leaving aside that her credibility is in question given the presence of her sweater in the vehicle.

[110] Moleko supra par 20.

[111] Moleko supra par 63.

[112] Moleko supra par 64.

[113] Minister of Police v Lebelo 2022 (2) SACR 201 (GP) par 69.

[114] Singatha supra par 47.

[115] Motladile v Minister of Police [2023] ZASCA 91 par 17.

[116] Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) par 20.