Malaza v Minister of Police and Others (1718 / 2018;1925 / 2018) [2023] ZAMPMBHC 57 (1 November 2023)

THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MBOMBELA MAIN SEAT

CASE NO: 1718 / 2018

(FIRST CASE)

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

DATE: 01 November 2023

SIGNATURE

In the matter between:

SIBUSISO SIMONE MALAZA PLAINTIFF

And

MINISTER OF POLICE

1ST DEFENDANT

THE DIRECTOR OF PUBLIC PROSECUTIONS 2ND DEFENDANT

CASE NO: 1925 / 2018

(SECOND CASE)

INNOCENT THULANI MDLULI

PLAINTIFF

MINISTER OF POLICE

1ST DEFENDANT

JUDGMENT

RATSHIBVUMO J:

Delivered: This judgment was handed down electronically by circulation to the parties' representatives by email. The date and time for hand-down is deemed to be 14H00 on 01 November 2023.

[1] Introduction.

The community of Nhlazatshe in Mpumalanga had been on the receiving end at the hands of a gang known as Wrong Turn. Things got out of hand when on 27 February 2015, members of this gang turned their acts of terror on members of the local taxi industry. Three taxi drivers were attacked at a local tavern that evening and were fatally injured. Two of them were transported to the local hospital that night by Sibusiso Simon Malaza, another taxi driver attached to the local taxi industry – Plaintiff in the first case (case no. 1718/18); where they later succumbed to their injuries.

[2] What happened the following day was an act of fury and revenge by the taxi drivers who sniffed out members of the Wrong Turn Gang, irrespective of whether they had taken part in the attacks of the night before or not. Three of them were kidnapped and taken to the taxi rank where they were tortured and executed in a typical vigilante style. Amongst those kidnapped was a certain Zinhle Bembe (Ms. Bembe) who was thought to be in a love relationship with a Wrong Turn Gang member. Her role was to point out the residential

addresses of members of this notorious gang. She was made to witness the kidnapping and assault on those who were thought to be Wrong Turn Gang members.

[3] Ms. Bembe went on to give a sworn statement in which she detailed the events of 28 February 2015 that unfolded in her presence. In that statement, she implicated Plaintiff in the first case and Innocent Thulani Mdluli, Plaintiff in the second case (case no. 1925/18). As a result of that statement, the Investigating Officer sought Warrants of Arrest for the Plaintiff in the first case

and the Plaintiff in the second case (the Plaintiffs) who were later arrested and prosecuted on charges of kidnapping and murder together with other suspects. At the end of the trial, the Plaintiffs were acquitted. The two cases were consolidated at the request by the Plaintiffs and the Defendants for the reason that they emanate from one case.

[4] The Plaintiffs now claim in these cases, damages suffered as a result of unlawful arrest and malicious prosecution against the First and the Second Defendant jointly and severally, the one paying, the other to be absolved. The Plaintiff in the first case claims to have been in unlawful detention for 1 060 days and that he suffered damages and loss of income totalling just over R22 million. The Plaintiff in the second case claims to have been unlawfully detained for 619 days and that he suffered damages and loss of income in excess of R18 million.

[5] Case for the Defendants.

The Defendants called the following witnesses. Thamsanqa Donald Mkhaliphi, a colonel in the South African Police Services (SAPS) attached to the provincial detectives. He was the investigating officer of the murder and kidnapping docket in which the Plaintiffs were arrested and prosecuted. Advocate Themba Johannes Lusenga, a Senior Public Prosecutor within the National Prosecution Authority (NPA). He is the one who applied for J50 warrants of arrest for the Plaintiffs which were granted by the Magistrate. Advocate Hitler Albert Thenga, an employee within the NPA attached to its national office. He is the one who successfully opposed the Plaintiff’s application to be released on bail. Advocate Eric Vindi Sihlangu, an employee within the NPA attached to the Mpumalanga Province at the time. He is the one who prosecuted the Plaintiffs during the criminal trial.

[6] Following the mistrusts in the community, the Station Commander at Elukwatini Police Station requested the provincial head of the detectives to assign an officer to investigate the docket in respect of the murders of men suspected of being members of the Wrong Turn Gang. Col Mkhaliphi was then assigned to lead the investigations. He acquired statements from various witnesses and also consulted Advocate Lusenga with a view to obtain warrants of arrest for the suspects, amongst them, the Plaintiffs.

[7] Part of the focus in their consultation was a statement made by Ms. Bembe. Relevant parts of that statement read as follows,

“On Saturday 2015-02-28 at about 07:30 to 08:00… I was at home at the address above. I was with John Ndlela, Melusi Ndlela and Manqoba. Then came in Ouma who is my friend. After few minutes, I walked out Ouma. While on the street with Ouma, we came across three motor vehicles; i.e. two white City Golfs and a silver grey double cab Toyota. One white City Golf was driven by Mzamane Sibande and the other white City Golf was driven by a man that I do not know his name, as well as the silver grey Toyota double cab, driver name unknown…

In the silver grey Toyota double cab there was Wandile Makhatho who was a passenger. Wandile Makhatho asked me as to where was my man, Sji. I responded by saying Sji was not my man / husband, and I did not know as to where he was. At that time, Mzamane Sibande drove passed us, straight into my house premises. He got out of the car and ran into the house. On [his] way to the house, he took out his firearm and discharged one bullet by firing one shot, and he entered into the house through front door.

When Mzamane Sibande entered into the house, Melusi and Manqoba came out running and John Ndlela remained inside the house. There were two other guys who were with Mzamane Sibande when he ran into the house. These two guys were with him in the City Golf. Mzamane Sibande and the two guys came out with John Ndlela, being held by one person the head, one on one leg and the other one on one leg, meaning that John was being carried by the three. John was thrown into the back of a bakkie (silver grey Toyota double cab) and the driver of the silver grey Toyota double cab bakkie drove away with John as well as Wandile, Tsotsane.

Mzamane Sibande thereafter came to me and instructed me to get into the white City Golf that was driven by him so that I would show him the addresses where the other Wrong Turn boys are staying. We then drove to the place called Dlanga to look for the Wrong Turns and no one was found. We proceeded to the Computer’s mother’s place and we found Computer’s mother, who told us that Computer was not at home. We then proceeded to Mzamane Sibande’s place and Mzamane Sibande instructed me to tell his mother as to how did his younger brother died. I told him that I did not know as I was not present when that incident happened.

While at Mzamane Sibande’s place, we were joined by two mini buses, whithe in colour, well known as Nyathi. The minibus which was infront was driven by Sibusiso Malaza and on the front passenger seat, there seated Dolphyn (his real name is Sifiso). The second minibus was driven by an unknown man to me, and on the front passenger seat, there seated Masheleni Lukhele. The other other occupants in the second minibus was Mthunzi Lukhele, Msika, Bongani and Chicken. The other occupants are unknown to me.

I was taken into the minibus that was driven by Sibusiso Malaza. Mzamane Sibande remained at his place, and we drove to Tjakastad to a place known as Esthandini where we found Manqoba Nkosi, who is well known as Gazi. Manqioba Nkosi was with his girlfriend Maggie as well as a guy known as “Small”. Mshika Dolphyn and Masheleni jumped out of a minibus and entered the house where Manqoba was. Dolphyn had a pick handle with him. The three came out with Manqoba Nkosi being handled with his arms. When they were outside the house, Dolphon stroke Manqoba Nkosi with a pick handle he had on his head. After being hit on the head, Manqoba bled and collapsed. Mshika, Masheleni and Dolphyn took Manqoba Nkosi into the silver grey Toyota double cab bakkie.

After leading Manqoba Nkosi into the bakkie, the driver drove away to the taxi rank and we drove to Sji’s place where he was not found. We then proceeded to the taxi rank at Crossings. Upon our arrival at the taxi rank, I got out of the minibus and I noticed that Mzamani Sibande was present and I approached him and I indicated that I wanted to go home. Mzamane was with Beauty Marivate whom I knew as a person who works a police. Mzamane Sibande had blood stains on his face, t shirt and on his hand.

While with Mzamane Sibande and Beauty Marivate I observed taxi drivers assaulting John Ndlela and Manqoba Nkosi with pick handle and stones. When I observed blood stains on Mzamane t shirt, face and on his hand, it was clear to me that Mzamane Sibande was from assaulting John Ndlela or Manqoba Nkosi. When John Ndlela and Manqoba Nkosi were being assaulted, Beauty Marivate and Booysen Maseko were just standing and watching, as well as other police officials who had big firearms (rifles) and just doing nothing to protect John Ndlela and Manqoba Nkosi. Masheleni, Mshika, Dolphyn, Bongani, Nhankitsha and Chicken proceeded to Badplaas with a minibus looking Sji, I then left and went home.

While we were at Estandini, where we found Manqoba Nkosi, I heard a huge bang which sounded like a firearm which sounded more than once, though I did not count. When Mzamani Sibande instructed me to get into the City Golf, his facial expression reflected anger and the barrel of the firearm was pointed at me. I was intimidated…”

[8] It was common cause that the name Tsotsane in Ms. Bembe’s statement refers to the Plaintiff in the second case, Innocent Thulani Mdluli. Col. Mkhaliphi and Adv. Lusenga were satisfied after reading the above statement and their consultation, that the Plaintiffs were implicated in the kidnapping and murder of the victims mentioned therein. Adv. Lusenga proceeded to apply for J50 warrant of arrest which was granted by the magistrate. Col Mkhaliphi thereafter proceeded to arrest the Plaintiffs.

[9] Following the arrest of the Plaintiffs, Adv. Thenga was deployed from the NPA’s national office to come and deal with the bail application by the Applicants. After studying the docket and consulting with the Investigating Officer, Adv. Thenga was of the view that the Plaintiffs had a case to answer and that their bail application should be opposed. Their application for bail

was as such successfully opposed, even on appeal to the High Court.

[10] A separate officer from the NPA, Adv. Sihlangu was involved in the trial of this matter. According to him, Ms. Bembe was a good witness whose evidence was in line with her statement referred to above. However, the Plaintiffs were acquitted owing to evidence by Ms. Marivate, the Station Commander at Elukwatini Police Station, whose evidence contradicted that of other State witnesses.

[11] Case for the Plaintiff in the first case.

The Plaintiff in the first case, Sibusiso Simon Malaza testified that in February 2015 he worked as a taxi driver. He confirmed that there was a fight on 27 February 2015 at Mavela saying “some of us” were injured in that fight. He was actively involved in taking the injured men to the hospital including Ayanda, who succumbed to his injuries. The following day he was asked to take people he found outside Sibande’s house, to Tjakastad, which he did. Those people included Ms. Bembe. None of those people was forced into his minibus. They all alighted at a spot where they found the road was closed, at Tjakastad. He then proceeded with his duties as a taxi driver. He did not see anyone being assaulted at Tjakastad. The people who came to arrest him did not identify themselves to him as police officers. He applied for bail which was refused three times by the court, including on appeal

to the High Court.

[12] Case for the Plaintiff in the second case

The Plaintiff in the second case, Innocent Thulani Mdluli, testified that he too worked as a taxi driver around February 2015. He was present when there was an attack on taxi drivers by the members of Wrong Turn Gang on 27 February 2015. He was however not present the next day when those perceived to be members of this gang were rounded up, kidnapped and killed at the taxi rank. He took note of the fact that Ms. Bembe implicated him in a statement made to the police. According to him, Ms. Bembe was not telling the truth.

[13] He was arrested at the police station following his arrest in another matter. He was about to pay for bail when the police advised him not to pay as there was another charge about to be added to those which was facing already. He also applied for bail and it was refused. He did not appeal as he had no money to prosecute the appeal. He conceded that since he was implicated, the police had to investigate him.

[14] No further evidence was presented to the court. No other exhibits were handed in except the statement by Ms. Bembe referred to above and the J50 warrant of arrest.

[15] Issues for determination

The Plaintiffs submitted that the arrest was unlawful in that the police did not have enough information to suggest that they committed crimes. For the same reason, it was also submitted that the prosecution was malicious. It was submitted by the Defendants that the arrest was lawful because there was evidence that the Plaintiffs committed crimes, and that the police were executing warrants of arrest issued in terms of section 43 of the Criminal Procedure Act, no. 51 of 1977 (the Criminal Procedure Act). In the alternative, the Defendants submitted that the arrest of the Plaintiffs was in line with the provisions of section 40 of the Criminal Procedure Act.

[17] The law.

Section 43 of the Criminal Procedure Act provides,

“43. Warrant of arrest may be issued by magistrate or justice.—(1) Any magistrate or justice may issue a warrant for the arrest of any person upon the written application of an attorney-general, a public prosecutor or a commissioned officer of police—

(a) which sets out the offence alleged to have been committed;

(b) which alleges that such offence was committed within the area of jurisdiction of such magistrate or, in the case of a justice, within the area of jurisdiction of the magistrate within whose district or area application is made to the justice for such warrant, or where such offence was not committed within such area of jurisdiction, which alleges that the person in respect of whom the application is made, is known or is on reasonable grounds suspected to be within such area of jurisdiction; and

(c) which states that from information taken upon oath there is a reasonable suspicion that the person in respect of whom the warrant is applied for has committed the alleged offence.

(2) A warrant of arrest issued under this section shall direct that the person described in the warrant shall be arrested by a peace officer in respect of the offence set out in the warrant and that he be brought before a lower court in accordance with the provisions of section 50.

(3) A warrant of arrest may be issued on any day and shall remain in force until it is cancelled by the person who issued it or, if such person is not available, by any person with like authority, or until it is executed.”

[18] In Minister of Safety and Security v Sekhoto and Another,[1] the SCA had to decide if sa warrant of arrest takes away the discretion of a peace officer. It held,

“It may be convenient to interpose a further mention of s 43. As said, it deals with the issue of a warrant for arrest upon the written application of a Director of Public Prosecutions, a public prosecutor or a commissioned officer of police. The further jurisdictional facts for the warrant are that the application must set out: (i) the offence alleged to have been committed (which need not be a Schedule 1 offence); (ii) that the offence was committed within the area of jurisdiction of the magistrate, or that the suspect is known or is on reasonable grounds suspected to be within such area of jurisdiction; and (iii) that, from information taken upon oath, there is a reasonable suspicion that the suspect has committed the alleged offence.

DISCRETION

Once the jurisdictional facts for an arrest, whether in terms of any paragraph of s 40(1) or in terms of s 43, are present, a discretion arises. The question whether there are any constraints on the exercise of discretionary powers is essentially a matter of construction of the empowering statute in a manner that is consistent with the Constitution. In other words, once the required jurisdictional facts are present the discretion whether or not to arrest arises. The officer, it should be emphasised, is not obliged to effect an arrest. This was made clear by this court in relation to s 43 in Groenewald v Minister of Justice (1973 (3) SA 877 (A) at 883G – 884B).

As far as s 40(1)(b) is concerned, Van Heerden JA said the following in Duncan (at 818H – J): 'If the jurisdictional requirements are satisfied, the peace officer may invoke the power conferred by the subsection, ie, he may arrest the suspect. In other words, he then has a discretion as to whether or not to exercise that power (cf Holgate-Mohammed v Duke [1984] 1 All ER 1054 (HL) at 1057). No doubt the discretion must be properly exercised. But the grounds on which the exercise of such a discretion can be questioned are narrowly circumscribed.

He proceeded to say that an exercise of the discretion in question will be clearly unlawful if the arrestor knowingly invokes the power to arrest for a purpose not contemplated by the legislature. This brings me back to the fact that the decision to arrest must be based on the intention to bring the arrested person to justice. It is at this juncture that most of the problems in the past have arisen. Some instances were listed in the judgment of the court below, namely an arrest to frighten or harass the suspect, for example, to appear before mobile traffic courts with the intent to expedite the payment of fines (Van Heerden at 416g – h); to prove to colleagues that the arrestor is not a racist (Le Roux in para 41); to punish the plaintiff by means of arrest (Louw at 184j); or to force the arrestee to abandon the right to silence (Ramphal in para 11). To this can be added the case where the arrestor knew that the State would not prosecute.”

[19] I cannot find any fault in Col. Mkhaliphi exercising his discretion in favour of effecting arrest on the Plaintiffs. It does not appear from the evidence presented that there was any reason for him to have acted otherwise. Some of the reasons that would persuade a peace officer to exercise the discretion against executing a warrant of arrest would be when a suspect gives a version upon arrest, that suggests that he may have been wrongly accused, or when there are developments in the case that were not there or known when a warrant of arrest was obtained. A peace officer would not be expected to simply exercise the discretion in favour of not arresting a suspect, based on what he already knew when he applied for a warrant; otherwise he should rather have applied for a less drastic measure of bringing a suspect before court than apply for a warrant of arrest. Approaching this discretion differently has a potential of abuse and suspicions (real or perceived) of corruption. In casu, it does not appear from the evidence presented that there were developments in the case warranting the police to exercise the

discretion against effecting an arrest.

[20] In Maphosa v Minister of Police[2], Mahalelo J said,

“An arrest in terms of a J50 warrant is unlawful if the warrant of arrest is improperly sought and obtained.[3] Dawood J, with reference to Minister of Safety and Security v Sekhoto and Another[4] stated at paragraph 28 (x- and xi): “…the court reaffirmed that an arrest is in fraudem legis when the arrestor has used a power for an ulterior purpose, but a distinction must be made between the object of the arrest and the arrestor’s motive - ‘'object relevant while motive is not. Courts do sometimes interfere to protect an injured party against abuse of power, example, in those well recognized cases in which powers, given to public bodies to be used for certain purposes, are wrongly used by them to achieve other purposes.

[21] There was no suggestion that the police acted with ulterior motive in the case against the Plaintiffs. In fact, Col Mkhaliphi and the Plaintiffs did not know each other prior to their arrest. While he could have proceeded to effect arrest based on section 40 of the Criminal Procedure Act, he opted to consult a senior Public Prosecutor and secured a warrant of arrest instead. The decision to prosecute the Plaintiffs was taken and evaluated independently by three different senior members of the NPA starting with Adv. Lusenga who applied for the warrant of arrest. Adv. Thenga consulted with the police and studied the docket and decided to oppose the application by the Plaintiffs, to be released on bail. Lastly, Adv. Sihlangu also studied the docket, consulted with the witnesses and led the prosecution in the criminal trial against the Plaintiffs.

[22] The court is mindful of the matter of Mphaleni v Minister of Safety & Security,[5] where the plaintiff attacked the validity of a warrant of arrest on the basis that (a) it was improper because the police officer applied for and obtained it without properly investigating the allegation against the plaintiff and without having sufficient or any information to form a reasonable suspicion that the plaintiff committed an offence of fraud but nonetheless deposed to an affidavit

to that effect; and (b) the police officer had no reasonable grounds to suspect that the plaintiff had committed the offence he alleged that the plaintiff was suspected of having committed.

[23] This matter is however distinguishable from Mphaleni in that there was no suggestion that the statement by Ms. Bembe was not investigated first. There is equally no suggestion that the contradictory evidence led by Ms. Marivate in the trial, existed in the docket before she could testify, in which case, the State would have been expected to weigh the two versions. If there was, I would expect such evidence to have been presented during the trial, and it was not. About six members of the society had been murdered, three of whom in revenge by those who took the law into their hands. The presence of Ms. Bembe at the time the members of Wrong Turn Gang were being rounded up, was confirmed by the Plaintiff in the first case. There was therefore no basis for the police and members of the NPA to doubt the veracity of her statement.

[24] In line with the above authorities is the judgment in Mtolo v Minister of Police[6] to which I was referred by the counsel for the Plaintiff in the first case. It is a recent decision by the Kwazulu-Natal Division of the High Court, Pietermaritzburg, in which the High Court made a finding on merits to the effect that a police witness, one Leremu, had lied in his evidence either before it or in his evidence at the trial of Mr Ngcobo regarding the arrest of Mr Ngcobo. The High Court was singularly unimpressed with the defendant’s witnesses. Before finding the arrest to have been unlawful, and the prosecution to have been malicious, it held,

“Regarding the detention and prosecution of the Plaintiff, the evidence points to [sic] strongly to the possibility that Bheki Cele, Leremu, Phungula and Sibiya, acting in concert, conspired to fabricate evidence against the Plaintiff which formed the basis for his detention and prosecution on charges of theft of the white Toyota Hilux motor vehicle and the theft of the saddles. There can be no debate about the fact that the Defendant’s servants had instigated the prosecution of the Plaintiff on both charges.

Apart from the evidence of those police officials involved in the conspiracy referred to in the preceding paragraph hereof, there is not a single iota of independent and objective evidence against the Plaintiff linking him with either the theft of the motor vehicle or the theft of the saddles, yet he was charged with both. Any chance which the Plaintiff might have had of getting bail on his first appearance in court was extinguished when the magistrate was informed, at the instance of Sibiya, that he had another charge pending against him.”

[25] The approach adopted in Mtolo when it comes to malicious prosecution, mirrors that of the Supreme Court of Appeal (the SCA) in Minister for Justice and Constitutional Development v Moleko[7]. In Moleko, the SCA held that in order to succeed (on the merits) with a claim for malicious prosecution, a claimant must allege and prove (a) that the defendants set the law in motion (instigated or instituted the proceedings); (b) that the defendants acted without reasonable and probable cause; (c) that the defendants acted with 'malice' (or animo injuriandi); and (d) that the prosecution has failed.

[26] In matters such as Mtolo, it is easier to determine as to who set the law in motion (instigated or instituted the proceedings) as it was the police who made the foundational statement in the docket. The lines are however blurry when it is a member of the society that lays a criminal charge such as Ms. Bembe did as she was an eye witness and a victim of the crime herself. I raise these reservations having noted that the defendants have acceded to the suggestion that they did set the law in motion. However, in Waterhouse v Shields[8] Gardiner J said,

“The first matter the plaintiff has to prove is that the defendant was actively instrumental in the prosecution of the charge. This is a matter more difficult to prove in South Africa, where prosecutions are nearly always conducted by the Crown, than it is in England, where many cases are left to the private prosecutor. Where a person merely gives a fair statement of the facts to the police, and leaves it to the latter to take such steps thereon as they deem fit, and does nothing more to identify himself with the prosecution, he is not responsible, in an action for malicious prosecution, to a person whom the police may charge. But if he goes further, and actively assists and identifies himself with the prosecution, he may be liable. “The test,” said Bristowe J in Baker v Christiane 1920 WLD 14, “is whether the defendant did more than tell the detective the facts and leave him to act on his own judgment”[9]

[27] In Minister of Safety and Security v Lincoln,[10] the SCA remarked about setting the law in motion by a police officer (Sgt Smith) who made a foundational statement that led to the investigations against the respondent, saying,

“In this court it was argued that Smith was the root of all evil, that he set the law in motion and that he had no reasonable and probable cause to do so. His statement formed the foundation for the investigation which followed in which he made serious allegations

about Lincoln, many of which have no bearing on the charges in the criminal trial. The concession on behalf of the Minister that

employees of the SAPS had initiated the process does not equate to ‘setting the law in motion’ or ‘instigating’

a prosecution. In Relyant Trading Malan JA noted that the concept of ‘instigation’ is one of some complexity.[11] In Lederman, this court noted that inherent in the concept of ‘set the law in motion’, ‘instigate’ or ‘institute the proceedings’, is the causing of a certain result, namely a prosecution, which involves the vexed question of causality.

[28] This court finds itself in the same situation as in Lincol as no facts were presented supporting the submission to the effect that the members of the SAPS or the NPA set the law in motion, when all they did was to decide to arrest and/or prosecute based on a statement presented by a victim of crime and/or a witness. While the Plaintiff in the first case concedes that he was implicated by Ms. Bembe and that the police had to act, he argues that the police acted on a lie. For unexplained reason, he and the Plaintiff in the second case chose not to make any claim against her or join her in these proceedings, which they could have done if their contention that she lied is to be taken serious.[12]

[29] Finally, the Plaintiff in the second case claims in his particulars of claim that his unlawful detention started when a certain police officer advised him not to pay for bail that was set for him in another case. The court is unable to assess if the advice was sound as no reasons were furnished for this advice. It would appear though that the Plaintiff in the second case decided to accept the advice and not pay for bail after he was told he was about to be charged for murder. No evidence was presented on this

aspect or even the proof of bail that was fixed. The court cannot find any fault in the police giving advice or the Plaintiff accepting

that advice.

[30] From the requirements set out in Moleko, it would appear that the only requirement the Plaintiffs met for a claim based on malicious prosecution is that the prosecution failed. I am not able to find, from the evidence presented that, that the defendants set the law in motion; that in arresting and prosecuting the Plaintiffs, the defendants acted without reasonable and probable cause; or that the defendants acted with 'malice' (or animo injuriandi).

[31] For the aforesaid reasons, I make the following order:

The plaintiff’s claims in the two cases (case no. 1718/2015 & 1925/2015) are dismissed with costs.

TV RATSHIBVUMO

JUDGE OF THE HIGH COURT

MPUMALANGA DIVISION

MBOMBELA

FOR THE PLAINTIFF IN THE 1ST: ADV. S LUBISI CASE INSTRUCTED BY: NTULI MANANA ATTORNEYS MBOMBELA FOR THE PLAINTIFF IN THE 2ND: ADV. SP NKOSI CASE INSTRUCTED BY: NTULI MANANA ATTORNEYS MBOMBELA FOR THE FIRST & SECOND DEFENDANT: ADV. GK SLABBER INSTRUCTED BY: STATE ATTORNEYS MBOMBELA DATES HEARD: 14 & 21 AUGUST 2023 JUDGMENT DELIVERED: 01 NOVEMBER 2023

[1] 2011 (5) SA 367 (SCA) at paras 23, 28 & 29.

[2] (10505/18) [2022] ZAGPJHC 486 (26 July 2022) at paras 38-39.

[3] See Mahlangu v Minister of Safety and Security and Others [2012] ZAGPPHC 12 (9 February 2012).

[4] Supra.

[5] (1495/2007) [2013] ZAECMHC 28 (4 October 2013).

[6] (10144/2015) [2023] ZAKZPHC 86 (23 August 2023)

[7] 2009 (2) SACR 585 (SCA) at para 8.

[8] 1924 CPD 155 at 160.

[9] See Lederman v Moharal Investments (Pty) Ltd 1969 (1) SA 190 (A) fn 9, where the Appellate Division referred to the passage above with approval.

[10] (682/19) [2020] ZASCA 59; [2020] 3 All SA 341 (SCA); 2020 (2) SACR 262 (SCA) (5 June 2020) at paras 25 & 26.

[11] Relyant Trading op cit at fn 11 para 9.

[12] See for example CS and Another v Swanepoel and Others (19027/13) [2022] ZAWCHC 37; [2022] 2 All SA 810 (WCC); [2022] 7 BLLR 660 (WCC) (17 March 2022).