Malinga v Minister of Police (A3115/2016) [2021] ZAGPJHC 858 (22 July 2021)

Malinga v Minister of Police (A3115/2016) [2021] ZAGPJHC 858 (22 July 2021)

The court found that the arresting officer did not know under which schedule perjury falls and did not entertain a suspicion that the appellant committed a Schedule 1 offence as required by section 40(1)(b) of the Criminal Procedure Act. The absence of the third jurisdictional fact rendered the arrest unlawful. The Magistrate’s finding that the arrest was lawful was a material misdirection on the facts and law. Consequently, the appeal succeeded, and the appellant was entitled to damages for his unlawful detention.

Citation
[2021] ZAGPJHC 858
Parties
Appellant: Benfol Kehla Malinga; Respondent: Minister of Police
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
22 July 2021
Case Number
A3115/2016
Procedural Posture
Civil Appeal / Appeal From Magistrates’ Court Judgment
Outcome
Appeal upheld. Magistrates’ Court order set aside. Respondent ordered to pay damages and costs.
Judges
Mkhabela, Meyer
Legal Topics
Unlawful Arrest, Quantum of Damages, Perjury, Arrest Without Warrant
Civil Procedure Delict Unlawful Arrest Quantum of Damages Perjury Arrest Without Warrant

Case Brief

Summary, issues, holding and outcome

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Parties

Benfol Kehla Malinga

Appellant

Minister of Police

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrates’ Court Judgment

Legal Issues

  1. 1 Whether the arrest of the appellant for perjury was lawful under section 40(1)(b) of the Criminal Procedure Act.
  2. 2 Whether the arresting officer entertained a reasonable suspicion that the offence committed fell under Schedule 1 of the CPA.
  3. 3 If the arrest was unlawful, what is the appropriate quantum of damages for the appellant’s detention.

Ratio Decidendi

The court found that the arresting officer did not know under which schedule perjury falls and did not entertain a suspicion that the appellant committed a Schedule 1 offence as required by section 40(1)(b) of the Criminal Procedure Act. The absence of the third jurisdictional fact rendered the arrest unlawful. The Magistrate’s finding that the arrest was lawful was a material misdirection on the facts and law. Consequently, the appeal succeeded, and the appellant was entitled to damages for his unlawful detention.

Court Disposition

Appeal upheld. Magistrates’ Court order set aside. Respondent ordered to pay damages and costs.

Orders

  • The appeal is upheld with costs.
  • The order of the court a quo is set aside and replaced with the following order: (a) The defendant is to pay to the plaintiff an amount of R120,000.00. (b) The defendant is to pay the plaintiff’s costs of suit.