Matsose v Minister of Police and Another (CIV APP FB 14/21;814/2016) [2023] ZANWHC 117; [2023] 4 All SA 136 (NWM) (28 July 2023)

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

NORTH WEST DIVISION - MAHIKENG

CIV APP FB 14/21

CASE NO.: 814/2016

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates:

YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between

FREDDY MAKGARITHLA MATSOSE APPELLANT

and

THE MINISTER OF POLICE

FIRST RESPONDENT

NATIONAL DIRECTOR OF PUBLIC

PROSECUTIONS

SECOND RESPONDENT

CIVIL APPEAL

CORAM: HENDRICKS JP, PETERSEN J AND MAKAANE AJ

ORDER

In the result, the following order is made:

(i) The appeal in respect of the claim for unlawful arrest and detention and malicious prosecution is upheld with costs, which costs shall include the costs of one Counsel.

(ii) The order of the court a quo is set aside and replaced with the following order:

“(a) The first defendant is liable for the plaintiff’s unlawful arrest and detention for the duration of his incarceration from the date of his arrest on 15 March 2013 until the date of his release on 26 February 2015.

(b) The second defendant is liable for the malicious prosecution of the plaintiff.

(c) The first and second defendants are ordered to pay the costs of action on the merits, jointly and severally the one paying the other to be absolved.”

(iii) The issue of quantum is referred back to the court a quo for determination with due regard to the findings of this Court on appeal.

JUDGMENT

PETERSEN J

Introduction

[1] This appeal with leave of the court a quo (Mahlangu AJ) is against the whole of the judgment and order of the court a quo.

[2] The action was instituted by the plaintiff Mr Tshepiso Matsose (the deceased plaintiff) against the defendant for his alleged unlawful arrest and detention and malicious prosecution at the hands of the servants of the respondents. The deceased plaintiff passed away on 24 August 2020, after he had already testified in the action against the respondents in the court a quo. An application to substitute the deceased plaintiff with his uncle Mr Freddy Makgarithla Matsose (the appellant), who was appointed the executor in the deceased plaintiff’s estate was granted on 29 September 2020, on an unopposed basis.

Background

[3] The background and chronology relevant to the arrest, detention and prosecution of the deceased plaintiff are in the main common cause and may be succinctly summarized as follows. The evidence of Constables Ncube and Mothlale for the defendant and the deceased plaintiff is relevant in this regard. On 15 September 2013, a certain Mr B[...], a resident of Zeerust was murdered at his home and his wife raped during a home invasion which appears to have occurred during the course of the evening of 14 September 2013. Constables Ncube and Malebogo were on duty dressed in uniform and doing patrols in the Zeerust policing precinct in a marked police motor vehicle. At around midnight of the 14 September 2013 they received a call regarding a shooting incident at [...] K[...] Street, Zeerust and proceeded to the police station to gather further information about the incident.

[4] Whilst en route to the police station they met a person who can safely be described as an informant, who gave them information about the incident. They drove to the scene of the crime with the said informant where they found a Community Service Centre police motor vehicle with Sergeant Tongwane and Constable Mosimane. Upon inspection of the scene Constable Ncube observed, inter alia, the deceased Mr B[...] laying in a pool of blood in his garage, and he established that Mrs B[...] had been raped. Once the scene was cordoned off all the police officers in attendance were requested to leave.

[5] Constables Ncube, Malebogo, Motlhale and Mkhondo remained at the scene until sunrise as they wanted to track All Star and Puma tekkie prints which were left behind at the scene. They tracked the prints which at times disappeared in rocky, sandy and bush terrain. When they emerged from the bushes they encountered a group of four (4) men, with three (3) seated and facing a Village ahead of them. The deceased plaintiff who was standing saw them emerging from the bushes.

[6] On the deceased plaintiff’s version, he had gathered around a communal tap awaiting his turn to draw water. At a distance of approximately 25 meters away he noticed a group of some 15 persons who turned out to be police officers. It is common cause that the deceased plaintiff started running away from the police officers and away from the Village towards a mountain. Constable Ncube gave chase and apprehended the deceased plaintiff who explained that he was smoking a dagga cigarette and threw it away and fled for fear of being arrested for possession of dagga. The deceased plaintiff was searched by Constable Ncube and no dagga was found on his person.

[7] Constable Ncube at this stage observed that the deceased plaintiff was wearing All Star tekkies and without further ado asked the deceased plaintiff why he murdered Mr B[...]. The deceased plaintiff is then alleged to have told him that it was his friends who murdered Mr B[...] and not him. The deceased plaintiff made no further admission to Constable Ncube about how he knew about the murder or who his friends were. Constable Ncube at this stage arrested the deceased plaintiff, reason being that he reasonably suspected him of being involved in the murder of Mr B[...]. None of the three men in

whose company the plaintiff was arrested, as they were not wearing any of the shoes that matched those at the scene of crime and the deceased plaintiff indicated that he did not know them. The Puma prints were tracked to a shack where a shootout occurred between the occupants and the police officers, with no arrests being made.

[8] On the deceased plaintiff’s version he was taken to his house a few meters from the scene of the arrest by the police officers. A search was conducted of his house and nothing implicating him in the killing of Mr B[...] was found at his house.

[9] The deceased plaintiff was taken to Zeerust Police Station where he refused to respond to any further questioning by Constable Ncube after his Constitutional Rights were read to him. He was detained for three (3) days at Zeerust Police Station prior to his first appearance in court on 18 September 2013 on charges of murder, robbery and housebreaking with intent to rob.

[10] In cross examination Constable Ncube conceded that no shoe prints were lifted at the scene where Mr B[...] was murdered for comparison with the deceased plaintiff’s shoes. Constable Mothlale who portrayed himself as an expert in shoe prints conceded in cross examination that no prints were taken and it could not be said that the prints left at the scene, necessarily belonged to the All Star tekkies worn by the deceased plaintiff. Constable Ncube remained adamant that his decision to arrest the deceased plaintiff and detain him was not based solely on the shoe print, but also on his reaction when he saw the police officers and his response to the questioning about the murder of Mr B[...].

[11] It is telling that on Constable Ncube’s evidence, that during October 2013 or during 2014, he discussed the matter with the investigators assigned to the matter, one being Captain Mpunzi enquiring why the deceased plaintiff was still in detention, whilst there was no evidence implicating him in the matter. According to Constable Ncube, Captain Mpunzi told him it was because the deceased plaintiff did not want to co-operate with them.

[12] In chronological sequence the evidence of Mr Bondesio called by the second respondent is relevant. Mr Bondesio, a public prosecutor with seven (7) years experience as at 18 September 2013 when the deceased plaintiff made his first appearance in court, received the police docket and he was responsible for taking the decision to enroll the matter and prosecute the deceased plaintiff. On his evidence he did so based on the statement of Constable Ncube and a J88 which was in the police case docket.

[13] The statement of Constable Ncube on which the decision to prosecute was made, was not commissioned. Mr Bondesio, when alerted to this, maintained that he thought the statement of Constable Ncube was commissioned and notwithstanding the withdrawal of charges against the deceased plaintiff, he maintained that he was still of the view that based on Constable Ncube’s statement, the State had a prima facie case against the deceased plaintiff. This view according to Mr Bondesio was based on what he termed a spontaneous admission made by the deceased plaintiff to Constable Ncube, which according to Constable Ncube’s un-commissioned statement is recorded as follows at paragraph 4:

“4. Upon our arrival at Mmamokete the suspect ran away. I then chose to chase him, I then shouted at him requesting him to stop and he stopped immediately and I did ordered him to go down, he then lay down on the sand and I did asked him why did you murdered the white man? Mr S[...] B[...], he then said its not him but his friends.”

[14] The evidence of Advocate Munyai who took the decision to withdrew the charges against the deceased plaintiff and Advocate Ndimande in my view are not relevant to the pivotal question on the alleged malicious prosecution which turns in the main of the evidence of Mr Bondesio. It is noteworthy though that Adv Ndimande, who as with Mr Bondesio, remained adamant that he did not withdraw the charges against the deceased plaintiff as he too believed there was a prima facie case against him. Adv Ndimande, however, eventually conceded when paragraph 4 supra, was read to him that nothing in the paragraph justified the matter against the deceased plaintiff being enrolled.

[15] From the deceased plaintiff’s first appearance in court, he was detained for a further 520 (five hundred and twenty days). The deceased plaintiff did not apply for bail at his first appearance, abandoned an application for bail on 16 October 2013, and ultimately applied for bail on 23 April 2014, which was refused by the presiding magistrate. The deceased thereafter remained in detention until the charges were withdrawn against him on 26 February 2015.

[16] The Minister of Justice and Constitutional Development was initially cited as a defendant on the basis of the detention orders granted by the magistrates who presided over the matter. On 15 July 2019 before the trial commenced, the claim was abandoned against the latter on the basis that the plaintiff believed that the said magistrates could not have known that they were being misled by one Captain Mpunzi, and the prosecutor Mr Bondesio, as to the nature of the case against the deceased plaintiff.

[17] The deceased plaintiff instituted the action against the respondents in 2018. For purposes of this judgment the issues related to the relevant statutory notices need not detain this Court. The appellant’s pleaded case in the particulars of claim is formulated as follows:

“PARTICULARS OF CLAIM

1. The Plaintiff is TSHEPISO MATSOSE, a major male person with chosen domicilium citandi et executandi 2[...] K[...], Zeerust.

2. The First Defendant is MINISTER OF POLICE in his official capacity as Minister of the South African Police Service situated at Wachthuis 7[...] floor, P[...] Street 2[...], Pretoria with address of service regulated in terms of Rule 9(3)(g) at the offices of The State Attorney, situated at SALU-Building, T[...] S[...] Street 3[...], Pretoria, 0001.

3. The second defendant is MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT in his official capacity as situated at 3[...] P[...] Street (c/o P[...] and Sisulu Street), Pretoria with address of service as regulated in terms of Rule 9(3)(g) at the offices of the State Attorney, situated at SALU-Building, Thabo Mbeki 3[...], Pretoria, 0001.

4. The Third Defendant is NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS, who is responsible for the affairs of the national Prosecuting Authority and / or Public Prosecution in the country, sued herein in his official capacity as a responsible person in respect of all liability of all Public Prosecutors, with address of service as regulated in terms of Rule 9(3)(g) at the offices of the State Attorney, situated at SALU-Building, Thabo Mbeki 3[...], Pretoria, 0001.

5. The entire cause of action arose within the jurisdiction of the above mentioned Honourable Court.

6. On or about the 15th day of September 2013 at about 08:40 at or near Mmamokete, Kruiseriver in Zeerust, the Plaintiff was arrested without a warrant,

detained and charged for Murder, house robbery and rape under Case No: 65/09/2013 which offence was allegedly committed at Zeerust,

North West.

7. On the day of the arrest, the Plaintiff was stopped by police officers in police uniform, on his way home from fetching water at the water tank in Mamokete, Kruiseriver Zeerust. The police officers were heavily armed with firearms and the Plaintiff ran away out of shock and was eventually caught. The Plaintiff was accused by warrant officer Ncube Manong for being involved in the commission of crime of murder, robbery and rape at Zeerust, which allegation was denied by the Plaintiff.

8. The arresting officer proceeded to arrest the Plaintiff on charges of House Robbery and Murder. The Plaintiff was then transported and detained at the instance of the arresting officer in the cells at Zeerust wherein the Plaintiffs constitutional rights were read to him and Plaintiff was cooperative.

9. The Plaintiff continued to be detained at Zeerust Police station when there was no evidence linking him with the commission of the offence he is charged with.

10. The Plaintiff appeared on several occasion at Zeerust Court where bail was opposed by the Public prosecutor and eventually refused by the Magistrate.

11. The first defendant set the law in motion by laying false charges against the plaintiff, and by so doing the first defendant committed act of malicious arrest and prosecution on the plaintiff.

11.1 The Plaintiff was thereafter kept in custody at the instance and request of the Second Defendant from 15th September 2013 until 6th March 2015 when the case was withdrawn against the Plaintiff by the State Advocate due to lack of evidence.

11.2 The Plaintiff was therefore kept in custody at the instance and request of the Second Defendant for a period of 18 (eighteen) months.

CLAIM 1: FIRST DEFENDANT

12. The arrest and/or subsequent detention of the Plaintiff were unlawful in the fact that:

12.1 the arresting officer did not take into account the Plaintiff’s right in term of Section 12 of the Constitution, Act 106 of 1996.

12.2 the Plaintiff was arbitrarily and without good cause deprived of his freedom;

12.3 the arresting officer had no grounds to interfere with the Plaintiff’s Constitutional right, in that:

12.3.1 the Plaintiff did not pose any risk to the community;

12.3.2 the plaintiff would not have evaded his trial;

12.3.3 there were no grounds presented to believe the Plaintiff would harm or any other person of the public;

12.3.4 the Plaintiff was in a position and had the will to refute the allegations against him;

12.3.5 there was no urgency for the arrest of the Plaintiff;

12.3.6 the fact that the Plaintiff had a known and fixed address was not taken into consideration;

12.3.7 The strength of the state case against the Plaintiff was not taken into account when considering the Plaintiff’s bail application.

FIRST ALTERNATIVE:

13. The arrest and/or subsequent detention of the Plaintiff was unlawful due to the fact that the arresting officer had no prima facie and/or reasonable grounds to believe that the Plaintiff committed the said offence.

SECOND ALTERNATIVE:

14. The arrest and or the subsequent detention of the Plaintiff was unlawful due to the fact that the arresting officer did not exercise his discretion or did exercise his discretion properly in that:

14.1 that there was no obligation on his to arrest and or detain the Plaintiff’

14.2 that he did not consider alternative methods to bring the Plaintiff before court;

14.3 that he did not exercise their discretion properly and bona fide.

15. As a result of the unlawful arrest and or subsequent detention by the arresting officer the Plaintiff suffered damages in the sum of R2 000 000.00 (Two Million Rand) for:

15.1 depriving the Plaintiff of his freedom;

15.2 contumelia;

15.3 severe emotional stress and Psychological trauma;

15.4 embarrassment suffered by the Plaintiff keeping him in the cells, and being arrested in front of the public;

15.5 humiliation and discomfort by being detained in the police cell;

15.6 legal expenses incurred by the Plaintiff in his defence;

The amount of R2 000 000.00 (Two Million Rand) is a global amount of the Plaintiff’s damages.

16. A letter of demand in terms of Section 3 of Act 40 of 2002, also containing a request for condonation, which letter is annexed hereto marked Annexure “A” was sent to which no reply was received.

17. Notwithstanding demand the Defendant refuses and/or neglected to pay the amount.

18. At all relevant times the arresting officer (Manong Ncube: persal 7[...]) and other police officers in uniform were acting in their official capacity and furtherance of is employment, hence the defendant is vicariously liable for the unlawful conduct of his employee.

…

CLAIM 3: THIRD DEFENDANT

23. The further unlawful detention of the Plaintiff was caused by the sole wrongful conduct of the third Defendant in that:

23.1 The Third defendant through its Public Prosecutor caused the case to be postponed with the Plaintiff in custody when there was nothing linking the Plaintiff with the commission of the offence.

23.2 The Third defendant though its Public Prosecutor failed to read the docket to establish how the Plaintiff is linked with the alleged offence and also to determine whether there was justifiable reason to keep the Plaintiff in custody.

23.3 Despite the fact that nothing linked the Plaintiff with the commission of the offence, the third Defendant failed to withdraw the case against the Plaintiff upon his first appearance or subsequent appearances, instead caused the matter to be postponed for investigation several times until it was transferred to High Court for trial, where the matter was withdrawn against the Plaintiff due to lack of evidence.

24. A letter of demand in terms of Section 3 of Act 40 of 2002, also containing a request for condonation, which letter is annexed hereto marked Annexure “C” was sent to the third defendant which no reply was received.

25. The unlawful arrest and detention of the Plaintiff was caused jointly and severally by the wrongful conduct of the first, second and third defendants as mentioned in the preceding paragraphs 12, 19 and 23, and all the Defendants are liable for restraining the liberty of the Plaintiff without lawful justification.

26. As a result of the unlawful detention by the Public Prosecutor / third defendant the Plaintiff has suffered damages in the sum of R2 000 000.00 (Two Million Rand) for:

26.1 Unlawful detention

26.2 Malicious prosecution

27. Notwithstanding demand the Defendant has refuses and/or neglects to pay the amount.

WHEREFORE the plaintiff prays for judgment against the first defendant for:

1. Payment of the sum of R2 000 000.00 (Two Million Rand);

2. Mora interest at the rate of 10.25% calculated from date of summons until date of payment;

3. Costs of the action on the Attorney client scale.

4. Further and or alternative relief.

WHEREFORE the plaintiff prays for judgment against the third defendant for:

4. Further and or alternative relief.”

[18] The court a quo considered various authorities relevant to unlawful arrest and detention and malicious prosecution. Save for its misplaced reliance on the Supreme Court of Appeal judgment in Mahlangu and another v Minister of Police [2020] All SA 656 (SCA), which was overturned by the Constitutional Court, the court a quo in respect of the arrest of the deceased plaintiff, found in favour of the appellant but only for the detention prior to his first

appearance in court. The claim for malicious prosecution (claim 3) was dismissed with each party to bear its own costs.

[19] In respect of the finding on the unlawful arrest and detention of the deceased plaintiff, the court a quo reasoned as follows:

“79. I will firstly deal with the issue of the wrongful arrest and detention. Since the defendants had admitted the arrest and detention, they bore the onus on a preponderance of probability that their version is the truth and that the arrest and detention was lawful. This onus is discharged if the defendants can show by credible evidence that their version is the more probable and acceptable version. The credibility of the witnesses, the probability and the improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of a defendant’s version, an investigation where questions of demeanor and impression are measured against the content of a witness’s evidence, where the importance of any discrepancies or contradictions are assessed and where a particular story is tested against facts which cannot be disputed and against the inherent probabilities so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and maybe rejected with safety. ln this regard Mabona and another v Minister of Law and order and others 1988 (2) SA 654.

80. lt is common cause that the offence for which plaintiff was arrested for was not committed in the presence of the arresting officer, Constable Ncube. There is no evidence before me that the arresting officer had conducted any investigation in this matter before he had affected the arrest except for stating that plaintiff was wearing All Star sneakers and that plaintiff informed him that his friends are

the ones who killed Mr B[...]. He was therefore required to analyze and assess the quality of the information at his disposal critically

and should not accept it lightly or check it where it could be checked, for example by obtaining statement of the complainant and

ascertaining that plaintiff is linked to the offence. lt is only after he had done this that would allow himself to entertain a

suspicion that would justify any arrest. The suspicion must be based in reasonable grounds failing which it would be lightly or

arbitrarily and not reasonable suspicion.

81. Constable Ncube’s version is that he arrested plaintiff for having committed murder, house robbery and rape at number [...] K[...] Street. The plaintiff had not committed the offences for which he was arrested for in the presence of Ncube. Constable Ncube arrested plaintiff based the AII Star -sneakers and plaintiff telling him that Mr B[...] was killed by his friends which plaintiff has denied and which was not recorded anywhere in the docket. Adv Munyai also stated that, the spontaneous statement of Constable Ncube would not stand the Constitutional test. Constable Ncube also confirmed during cross examination that All Star sneakers are popular shoes and no shoe print test were made during the investigation to show that All Star prints found or seen at the scene of crime belonged to the plaintiff. Since that is the case, the second, third and fourth jurisdictional facts mentioned in paragraph 50 herein above not satisfied by the arresting officer before making the arrest. It follows therefore that the arrest and subsequent detention of the plaintiff was unlawful since there was no reasonable suspicion that plaintiff has committed the said offences.”

(my emphasis)

[20] The court a quo in respect of the further detention of the deceased plaintiff and the claim for malicious prosecution reasoned as follows:

“82. This brings me to the claim against the second defendant for malicious prosecution. The plaintiff bears the onus to prove that the prosecution was malicious. The plaintiff was initially arrested for house breaking and robbery. The prosecutor, Mr Bondesio, was handed a docket that contained inter alia the arresting officer’s statement, J88 which is the doctor’s report and the complainant statement. After studying the contents of the docket, he decided to charge the plaintiff with housebreaking, robbery and rape. Mr Bondesio denied any malice when instituting the proceedings against plaintiff. He placed the matter on the roll with the honest belief that plaintiff would be found guilty of the offences charged with.

83. On 29 October 2014 the case dockets were taken to the DPP’s office for Adv Ndimande to decide if the matter was ready for trial or not. Adv Ndimande got sick and the dockets were handed to Adv Munyai for a decision who withdrew the matter against plaintiff on 26 February 2015.

84. ln order to prove the absence of reasonable and probable cause the plaintiff must prove that the second defendant either did not

honestly believe that he was guilty of the offences he was charged with, or if the second defendant had such belief, and even if he or she held it honestly, that such a belief was not based on information which would persuade a person of ordinary discretion and prudence to believe in the plaintiff's guilty.

85. Based on what was placed before the prosecutor, especially the statement of Constable Ncube, there was sufficient information to

make the prosecutor conclude that the plaintiff was guilty of the offences that he was charged with.

86. Mr Bondesio and Adv Ndimande were of the opinion that the second defendant had a prima facie case against plaintiff and they generally

believed in the prosecution of this matter based on the evidence before them. They held an honest belief that the plaintiff was guilty of the offences which he was charged with.

87. This brings me to the requirement of malice. Malice or improper motive on the part of the second defendant is an independent or standalone requirement of a malicious prosecution action. lt is incumbent on the plaintiff to prove that the second defendant was actuated by an improper act of malice. lf the second defendant had any other motive other than that of having the plaintiff convicted, it was actuated by malice. Mr Bondesio testified that he had no intentions of malice when prosecuting the plaintiff, he had no reason of maliciously prosecuting plaintiff.

88. It is trite that a prosecutor has the duty to prosecute a matter if there is a prima facie case, and if there is no compelling reason for refusal to prosecute. A prima facie case means the allegations, as supported by statements and where applicable combined with real and documentary evidence available to the prosecution, are of such a nature that if proved in a court by the State on the basis

of admissible evidence, the court should convict.

89. It is trite that animus iniurandi is defined as ‘consciously wrongful intent’ or an intention to injure, that is, a deliberate intent to harm. ln order to succeed in their action, the plaintiff would, therefore, have to establish a desire on the part of the second defendant to cause harm to him or a conscious or deliberate intention to injure him by setting in motion the legal proceedings against him.

90. The claim for malicious prosecution brought by plaintiff against the second defendant stand to be dismissed.

91. No evidence was led to suggest that Mr Bondesio had any intention than to have plaintiff convicted of the charges that he was charged with. To succeed with a claim for malicious prosecution the plaintiff must prove all the requirements mentioned in paragraph 74 herein above. Failure to prove one requirement will lead to dismissal of the claim of malicious prosecution. Mr Bondesio enrolled this matter based on the statement of Constable Ncube.

The grounds of appeal

[21] The grounds of appeal are set out as follows in the Notice of Appeal:

“Grounds of Appeal

7. This appeal is with the leave of the court quo heard and granted on 1st September 2021.

7.1 The application for leave to appeal was granted on an unopposed basis, the respondents having elected not to participate in these proceedings.

7.2 The application for leave to appeal was served on the respondents on 14 June 2021. The respondents defaulted in filing their intention to defend and/or any other compulsory affidavits as required by the Rules of court and/or the Practice Directive.

TAKE FURTHER NOTICE that the findings of fact and/or rulings of law appealed against and the grounds upon which this application is founded, are fully set out hereunder:

RE: FIRST RESPONDENT – SOUTH AFRICAN POLICE SERVICE

8. The learned Judged erred in finding:

8.1 That the first respondent was only liable for R45 000.00 (Forty-five thousand rand) which amount represents damages for the unlawful arrest and detention of the plaintiff for three pre-court appearance dates.

8.2 That the first respondent was not liable for the entire period of plaintiff’s incarceration – from the date of arrest to date to date of release when charges against the plaintiff were withdrawn.

9. In respect of the first respondent the learned presiding judge should have found:

9.1 That the first respondent set the law in motion and is, as such, liable for the entire period the plaintiff spent in detention.

9.2 That, on Constable Ncube’s (the arresting officer) own words, plaintiff could not be linked to the murder at [...] K[...] Street, Zeerust.

9.3 That Captain Mpunzi (the investigating officer), on his own admission ignored advise from Constable Ncube and Sargant Ntsele that plaintiff was innocent and as such should be released.

9.4 That the admission by Captain Mpunzi that plaintiff “refused to speak to me and I ignored him (“ka mmeela kwa”) is unquestionable intentional, vindicative and unlawful.

9.5 That the admission by Captain Mpunzi that plaintiff “refused to speak to me and I ignored him (“ka mmeela kwa”)is the main reason the plaintiff stayed in detention for the entire duration of the proceedings.

10. Furthermore, the learned presiding judge should have found in respect of Mpunzi that had members of the first respondent, in particular Captain Mpunzi informed the presiding judge that:

10.1 There was at the time no evidence under oath linking plaintiff to the commission of any crime and as such, plaintiff should be released.

10.2 Captain Mpunzi disclosed to the presiding judge that he, in his capacity as Investigating Officer was “punishing” the plaintiff’s purported “refusal to co-operate”. Captain Mpunzi admitted that had the plaintiff cooperated with the police the plaintiff would have been released at the earliest.

10.3 It will be submitted that: -

(a) On first day Seargant Ntsele presented the docket at the court (for a decision by the prosecutor); and

(b) On the day in October 2013 when Constable Ncube and Captain Mpunzi discussed the non-involvement/innocence and the unlawful detention of the plaintiff.

10.4 That at each subsequent court appearance, Captain Mpunzi had a “duty to speak” yet he intentionally withheld information from the prosecutor and the magistrate.

11. The learned presiding judge should have made specific analysis and findings in the judgment on the admissions made by Captain Mpunzi.

12. The court should have found in the circumstances that the police were liable for the full period for the full period plaintiff spent in detention.

RE: SECOND RESPONDENT – PROSECUTING AUTHORITY

13. The learned presiding judge erred in not finding that:-

13.1 The prosecutor should have with reasonableness noticed that, at the time of taking the decision to prosecute the plaintiff, there was still no witness statement against the plaintiff.

13.2 The prosecutor should have with reasonableness and diligence noticed that, at the time of taking the decision to prosecute there was no warning statement by the plaintiff.

14. The honourable Judge should found that the prosecution of the plaintiff was malicious in that the prosecutor Bondesio, during the bail hearing deliberately lied to the presiding judge by stating on the bail application record that:

“Plaintiff made a pointing out which let to the discovery of the fire-arms” used in the commission of the offences allegedly committed by the plaintiff.

15. The prosecutor Bondesio misled the court by failing to explain, when asked by the magistrate around the issue of the pointing out by plaintiff, that he (the prosecutor) would revert to the false, malicious representation that plaintiff had made a pointing out.

15.1 The prosecutor deliberately misled the court, the plaintiff had not made any pointing out.

16. The non-commissioning of Constable Ncube’s arrest statement offends the requirements that a prosecution should be commenced in the event that there is a prima facie evidence under oath.

16.1 A fair prosecution demands at the very least, a statement.

17. The court a quo erred in failing to give reasons in the judgment why, in light of the admission by the prosecutor that “he made a mistake” the prosecution of the plaintiff was not found to be malicious.

18. Having testified that there was no evidence in the docket implicating the plaintiff in the commission of the murder and robbery, the court misdirected itself in not finding that the prosecution was not malicious and unlawful.

19. The judgment of the honourable court does not dwell on the full examination and the credibility of Bondesio and all prosecutors who testified.

19.1 Furthermore, the honourable court’s judgment lacks detail in the manner in which the material evidence of Mpunzi, Bondesio and Ndimande was restated, conveyed and analyzed.

20. The learned Judge failed to give reasons why she found the evidence of the second respondent credible without furnishing reasons for the conclusion reached that the plaintiff’s prosecution is not malicious.

21. The learned judge failed to consider that the conduct of both respondents implicated plaintiff’s rights to:-

21.1 silence in terms of section 35 of the Constitution; as well as the

21.2 freedom of movement entrenched in section 31(1) of the Constitution; as well as the

21.3 security of the person in section 12 of the Constitution.

22. In respect of the second respondent, the learned Judge should have found that plaintiff’s prosecution was malicious.

COSTS

23. In the consideration of costs, it was necessary for the learned Judge to have gone into some detail in regard to the facts giving rise to the plaintiff’s claims.

24. The learned Judge erred in finding in these circumstances that costs are payable on a magistrate’s court scale, this scale is not borne out by the supporting facts.

18.1 the judgment of the court a quo not explain the reasoning informing the decision.

25. The conduct of both respondents constituted exceptional circumstances that do not justify the court’s deviation from established practice around the issue of costs.

26. It will be submitted that the learned Judge’s discretion in relation to the issues of costs was not judicially exercised.

26.1 The scale of costs determined by the court a quo negates the fact that the prosecution aspect was not dealt with.

26.2 The learned Judge should have investigate the merits of both claims in order to decide whether the order as to costs made in the dispute amongst the parties was properly made out.

27. The court misapplied the well-established general rule that “costs follow the results”.

27.1 it will be submitted that the learned Judge’s failure to exercise her judicial discretion correctly in relation to costs constitutes an exceptional circumstance and as such, should be overturned.

28. The learned Judge should have in the circumstances awarded costs on the high court scale.

APPLICANT’S MAIN SUBMISSIONS:

FIRST RESPONDENT:

29. It will be submitted that the learned quote court a quo misapplied the law and the authority of the court cases.

29.1 The main judgment relied on by the court a quo Mahlangu and Another v Minister of Police and another: 2020 (2) SACR 136 SCA (12 April 2020), Extensively quoted and emphasized between pages 31 and 40 of the judgment, had been overturned by the Constitutional Court in Mahlangu v Minister of Police and Another 2021 BCLR 698 (CC) (14 May 2021).

30. There is no question that the two investigating officers Ntsele and Mpunzi’s attitude that the plaintiff refuses to co-operate with them factually caused plaintiff’s detention up to his court appearance.

30.1 A question that arises is whether public policy dictates that this conduct of the investigating officers – accompanied by their silence throughout is too remote for delictual liability to attach to the police beyond first appearance.

30.2 A related question being whether, despite the police’s concealed criminal conduct, the plaintiff bore the onus to sue the magistrate. This approach we submit, constituted an error of law.

30.3 Furthermore, the court a quo did not properly consider the fact that at the magistrate level, the police maintained their opposition to the grant of bail and denying any wrong doing during the bail application and the trial in the court a quo.

31. It will be submitted that the appaorch adopted by the court a quo to determine liability of the first respondent is contrary to the jurisprudence of the Supreme Court and the Constitutional Court.

32. Thus we submit that the court a quo erred in refusing to award damages for the full period of detention.

APPELLANT’S MAIN SUBMISSIONS

SECOND RESPONDENT

33. In respect of the prosecuting authority, we submit that the count a quo misdirected herself and/or erred in finding against the plaintiff in circumstances where:

33.1 Prosecutor Bondesio admitted that when he took the decision to prosecute, the statement of the arresting officer was un-commissioned;

33.2 That Bondesio misled the magistrate by stating that applicant made pointing out which let to discovery of the firearms used in the murders when he knew that no such evidence was contained in the docket.

33.3 He informed the magistrate that plaintiff informed him [Bondesio] that plaintiff intended pleading guilty when he knew this was a lie.

33.4 Conceded under cross examination that at the time the docket was presented to him, it did not contain any prima facie evidence against the plaintiff.”

The law

[22] A good starting point in considering the merits of the appeal is the seminal judgment of the majority in De Klerk v Minister of Police (CCT 95/18) [2019] ZACC 32; 2019 (12) BCLR 1425 (CC); 2020 (1) SACR 1 (CC); 2021 (4) SA 585 (CC) (22 August 2019). In my view the following paragraphs of the De Klerk judgment provide a useful basis to consider the grounds of appeal in the present matter:

“[14] A claim under the actio iniuriarum for unlawful arrest and detention has specific requirements:

(a) the plaintiff must establish that their liberty has been interfered with;

(b) the plaintiff must establish that this interference occurred intentionally. In claims for unlawful arrest, a plaintiff need only show that the defendant acted intentionally in depriving their liberty and not that the defendant knew that it was wrongful to do so;

(c) the deprivation of liberty must be wrongful, with the onus falling on the defendant to show why it is not; and

(d) the plaintiff must establish that the conduct of the defendant must have caused, both legally and factually, the harm for which compensation is sought.

[15] The unlawfulness of the arrest is not at issue before us. The High Court held that the arrest and subsequent detention were lawful and dismissed the claim. This reasoning was unanimously overturned by the Supreme Court of Appeal and the majority held – with the minority concurring – that the arrest was unlawful. This finding is not challenged on appeal. There is also no issue of fault before us.

[16] Similarly, there is no appeal against the finding by the Supreme Court of Appeal that the respondent is liable for the applicant’s unlawful detention from the time of his arrest until his first appearance in court, a period of about two hours. This application is about whether the harm associated with the applicant’s detention on the order of the Magistrate fter his first court appearance until his release on 28 December 2012 can be attributed to the unlawful arrest by the police. As mentioned, the respondent contends that the unlawful detention of the applicant ceased when the Magistrate ordered his further detention.

[17] This application accordingly implicates the causation requirement in the context of alleged unlawful detention. As will become evident from the discussion below, there is a subtle relationship between the elements of causation and unlawfulness that must be considered in matters like these.

[19] In my view, on the case as brought before us, there is one potential delict; namely, the unlawful arrest of the applicant. I understand the basis of the second judgment to be that a different delict lies at the heart of this matter: an omission by the arresting officer at the applicant’s first appearance to prevent the further detention. The second judgment concludes that because there is no duty on the arresting officer to do anything at the first appearance of an arrested person, the omission by the arresting officer in this case cannot be wrongful. The arresting officer cannot then be liable for the applicant’s subsequent detention. I might have agreed with this reasoning if the only issue before us was an omission by the arresting officer at the first appearance. In this case there was prior wrongful, negligent conduct by the arresting officer that factually caused the applicant to suffer harm. It is that conduct, the wrongful arrest of the applicant, which we are called to adjudicate. The applicant has pleaded that because of that wrongful arrest, he was detained for over a week…

[20] The applicant’s particulars of claim in the High Court state that the applicant “was arrested without a warrant by members of the Sandton SAPS” and “[a]s a result of the [applicant’s] wrongful and unlawful arrest and detention”, he suffered the harm in respect of which he seeks to hold the respondent liable (the entire period of detention). The applicant’s pleaded case is that the unlawful arrest, rather than an omission by the police at the time of his first appearance before the Magistrate, was the cause of the harm he suffered.

[21] The applicant further avers in his particulars of claim that “[t]he members of the SAPS wrongfully failed and/or unreasonably refused to release the [applicant] on bail” and “[a]s a result of the aforegoing the [applicant’s] further detention was unlawful”. At best, the particulars of claim appear to allude to a failure by the police to give the applicant police bail – not to cause his release at the first appearance. It seems to me that the applicant pleaded that the police wrongfully failed to “release” him on bail at the Sandton Police station rather than failed to cause his release on bail before the Magistrate. This would tie in with the allegation in the applicant’s pre-summons notice that Constable Ndala “was aware that [the applicant] can be released on bail” in the amount of R1 000 but failed to make the applicant aware of this.

[22] In any event, even if we interpret the pleadings as meaning that the applicant was suing the police for an omission during his first appearance before the Magistrate, it is quite clear that he was also suing them for the week’s detention that flowed from the unlawful arrest. Before us, there was no suggestion, in the pleadings or in argument, of liability for an omission by the police at the first appearance before the Magistrate. The parties have not been heard on this issue. The application for leave to appeal filed before us unequivocally frames the question as one of legal causation. Paragraph 4.3 of the applicant’s founding affidavit in this Court reads:

“The issue to be considered and ventilated is why the respondent, subsequent to its unlawful interference with my physical liberty,

should not be subjected to the same criteria and tests applicable to other wrongdoers in a delictual claim. On a reading of the [Supreme Court of Appeal] majority judgment the normal test of causation is not applied. The principle applied by the majority judgment was that, absent proof that the consequence of the unlawful breach of my right to personal liberty was also, independent of the initial unlawful breach, unlawful, I am not entitled to compensation, from the respondent, for such consequences. Such finding was made notwithstanding that such consequence was not only foreseeable by the respondent but in fact known at the time when my physical liberty was unlawfully interfered with.” (Emphasis added.)

[23] There is, in my view, no basis to frame the issue in this matter as one of wrongfulness (based on an omission by the arresting officer at the first appearance).

[62] The principles emerging from our jurisprudence can then be summarised as follows. The deprivation of liberty, through arrest and detention, is per se prima facie unlawful. Every deprivation of liberty must not only be effected in a procedurally fair manner but must also be substantively justified by acceptable reasons. Since Zealand, a remand order by a Magistrate does not necessarily render subsequent detention lawful. What matters is whether, substantively, there was just cause for the later deprivation of liberty. In determining whether the deprivation of liberty pursuant to a remand order is lawful, regard can be had to the manner in which the remand order was made.

[63] In cases like this, the liability of the police for detention post-court appearance should be determined on an application of the

principles of legal causation, having regard to the applicable tests and policy considerations. This may include a consideration of whether the post-appearance detention was lawful. It is these public policy considerations that will serve as a measure of control to ensure that liability is not extended too far. The conduct of the police after an unlawful arrest, especially if the police acted unlawfully after the unlawful arrest of the plaintiff, is to be evaluated and considered in determining legal causation. In addition, every matter must be determined on its own facts – there is no general rule that can be applied dogmatically in order to determine liability.

Foresight

[76] A reasonable arresting officer in the circumstances may well have foreseen the possibility that, pursuant to an unlawful arrest, the arrested person would routinely be remanded in custody after their first appearance.

[81] As explained, subjective foresight of harm cannot itself necessarily imply that harm is not too remote from conduct. It is, however, a weighty consideration… 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 for 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 a fresh causative event breaking the causal chain.

Apportionment of damages and concurrent wrongdoers

[82] The applicant did have alternative avenues of recourse regarding his unlawful detention after the remand order beyond only pursuing a claim against the respondent. There appears to have been multiple, concurrent wrongdoers in this matter. They all contributed to a systemic failure that led to the applicant being unlawfully detained for seven days. These parties were not joined and are not before us and we are thus unable to pronounce definitively on their liability.

[83] The Minister of Justice and Director of Public Prosecutions might be jointly and severally liable with the Minister of Police, but it is sufficient for one of them to be sued for their proven delict for the applicant to succeed. A plaintiff may elect to sue only one person whose delict caused her harm, even if another person’s independent delict also caused that same harm. It is not obligatory that all joint wrongdoers be sued in the same action. Where all joint wrongdoers have not been sued, a court is not barred from determining the liability, if any, of the party or parties before it. This happened in Carmichele (and K and F), where the plaintiff sued only the state officials for their delict, and not the party who had actually assaulted her.

Conclusion

[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 court appearance. She knew that 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.

[87] Public policy considerations, based on the norms and values of our Constitution, and the principles emerging from Zealand, point to the respondent being liable for the entire period of the detention. To impose liability on the respondent for the entire period of the detention, in the circumstances of this matter, would not be exceeding the bounds of reasonableness, fairness and justice. On the contrary, following this line of reasoning, it would be fair and just to impute liability to the respondent.”

[23] In Minister of Safety and Security v Tyokwana 2015 (1) SACR 597 (SCA) Fourie AJA stated as follows:

“It has often been stressed by our courts, that the duty of a policeman who has arrested a person for the purpose of having him or her prosecuted, is 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. See: Prinsloo and Another v Newman 1975 (1) SA 481 (A) at 492G and 495A and Minister for Justice and Constitutional Development v Moleko, supra, at para 11. In Carmichele v Minister of Safety and Security and Another 2001(4) SA 938 (CC) para 63, it was held that the police has a clear duty to bring to the attention of the prosecutor any factors known to them relevant for the exercise by the Magistrate of his discretion to admit a detainee to bail.”

(my emphasis)

[24] The court a quo correctly identified the test for malicious prosecution as follows in its judgment:

“[69] Malicious prosecution is an abuse of the process of the court by intentionally and wrongfully setting the law in motion on a criminal charge. In order to succeed with the claim, the Plaintiff must show:

69.1. that the Defendant instituted or instigated the proceedings;

69.2. that the Defendant acted intentionally or with animus iniuriandi;

69.3. that the Defendant acted without reasonable and probable cause;

69.4. that the Defendant was actuated by an improper motive or malice;

69.5. that the proceedings terminated in the Plaintiff’s favour; and

69.6. that the Plaintiff suffered damage.

[70] The case of Minister of Justice and Constitutional Development v Moleko 2009 (2) SACR 585 (SCA), is more relevant in that the SCA reaffirmed the law that a claim for malicious prosecution lies under the actio iniuriandi. It was held that animus iniuriandi means that the prosecuting authority, while being aware of the absence of reasonable grounds for the prosecution, directs his or her will to prosecuting the Plaintiff. If no reasonable grounds exist, but the prosecutor honestly believes either that the Plaintiff is guilty, or that reasonable grounds are present, the second element of animus iniuriandi namely consciousness of wrongfulness, will be lacking. The court further stated the following with regard to the element of animus iniuriandi:

“The 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).””

[25] From the authorities on malicious prosecution it is clear that at the outset any wrongfulness or unlawfulness in the prosecution of a plaintiff is dependent on whether or not the prosecution had reasonable and probable cause to initiate, instigate or continue with the prosecution. This is then coupled with any animus inuriandi motivated by malice or an intent to harm the plaintiff.

[26] The absence of reasonable and probable cause to initiate, instigate or continue with the prosecution was formulated as follows in Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A):

“When it is alleged that a defendant had no reasonable cause for prosecuting… this means 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.”

[27] In Relyant Trading v Shongwe 2007 (1) All SA 375 (SCA) at paragraphs 5 and 14 the following was said:

‘Malicious prosecution consists in the wrongful and intentional assault on the dignity of a person comprehending also his or her good name and privacy. The requirements are that the arrest or prosecution be instigated without reasonable and probable cause and with “malice” or animo iniuriarum. Although the expression “malice” is used, it means, in the context of the actio iniuriarum, animus iniuriandi. In Moaki v Reckitt & Colman (Africa) Ltd and Another Wessels JA said:

“Where relief is claimed by this actio the plaintiff must allege and prove that the defendant intended to injure (either dolus directus or indirectus). Save to the extent that it might afford evidence of the defendant’s true intention or might possibly be taken into account in fixing the quantum of damages, the motive of the defendant is not of any legal relevance.”

[28] In Minister of Justice and Constitutional Development and Others v Moleko (131/07) [2008] ZASCA 43; [2008] 3 All SA 47 (SCA) ; 2009 (2) SACR 585 (SCA) (31 March 2008) the SCA expressed itself further on the issue of malice as follows:

“The 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 consequence of his or her conduct (dolus eventualis). Negligence on the part of the defendant (or, I would say, even gross negligence) will not suffice.’

[29] The liability of the second respondent is closely linked to the unlawful arrest of the deceased plaintiff by Constable Ncube. With causality being a central consideration in regard to malicious prosecution, the sentiments expressed in Lederman v Moharal Investments (Pty) Ltd 1969 (1) SA 190 (A) at 197A-B are apposite:

“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 is sought to hold someone responsible for the prosecution. Amerasinghe, Aspects of the Actio Iniuriarum in Roman Dutch Law, recognises that “the problem is essentially one of causation” and suggests (at p 20):

“The principle is that where a person acts in such a way that a reasonable person would conclude that he (i.e. the defendant) is acting clearly with a specific view to a prosecution of the plaintiff and such prosecution is the direct consequence of that action, that person is responsible for the prosecution.”’ (my emphasis)

[30] In terms of law of general application, the authority to institute criminal proceedings vests in the National Prosecuting Authority. Section 20 of the National Prosecuting Authority Act 32 of 1998 provides as follows:

“20 Power to institute and conduct criminal proceedings

(1) The power, as contemplated in section 179 (2) and all other

relevant sections of the Constitution, to-

(a) institute and conduct criminal proceedings on behalf of the State;

(b) carry out any necessary functions incidental to instituting and conducting such criminal proceedings; and

(c) discontinue criminal proceedings, vests in the prosecuting authority and shall, for all purposes, be exercised on behalf of the Republic.

[31] In exercising the aforesaid power of instituting prosecutions, prosecutors are bound by the Code of Conduct for Members of the National Prosecuting Authority issued under section 22(6) of the National Prosecuting Authority Act, 1998 published in Government Gazette No. R. 1257 of 29 December 2010. Paragraph D.1 (c) and (d) is apposite:

“D. ROLE IN ADMINISTRATION OF JUSTICE

1. Prosecutors should perform their duties fairly, consistently and expeditiously and –

(c) give due consideration to declining to prosecute, discontinuing criminal proceedings conditionally or unconditionally or diverting criminal cases from the formal justice system, particularly those involving young persons, with due respect for the rights of suspects and victims, where such action is appropriate;

(d) in the institution of criminal proceedings, proceed when a case is well-founded upon evidence reasonably believed to be reliable and admissible, and not continue a prosecution in the absence of such evidence; …”

Discussion

[32] As in De Klerk, the unlawfulness of the arrest of the deceased plaintiff in this matter is not an issue before us. The finding by the court a quo is not challenged on appeal. There is further no issue taken before us by the respondents with the finding of the court a quo, regarding the deceased plaintiff’s unlawful detention from the time of his arrest until his first appearance in court.

[33] Similar to the position in De Klerk, the question is whether the harm associated with the deceased plaintiff’s detention on the order of the magistrate after his first court appearance until his release on 26 February 2015 when charges were withdrawn against him, can be attributed to the unlawful arrest by the police.

[34] To borrow from De Klerk, the present appeal “…accordingly implicates the causation requirement in the context of alleged unlawful detention.” In respect of the first claim for unlawful arrest and detention, the main issue implicated in this appeal is the detention of the deceased plaintiff. As in De Klerk, and moving from the premise that the court a quo found in favour of the appellant that the arrest was unlawful, it remains uncontroverted that “there was prior wrongful, negligent conduct by the arresting officer that factually caused the applicant to suffer harm. It is that conduct, the wrongful arrest of the applicant, which we are called to adjudicate. The applicant has pleaded that because of that wrongful arrest, he was detained for over a week…”. By way of analogy it was because of the unlawful arrest of the deceased plaintiff, so the argument goes, that he was detained

for 523 days [eighteen (18) months] and the causal connection between the wrongful conduct of Constable Ncube to the detention for 523 days is what we are to adjudicate in this appeal.

[35] In respect of claim 1 for unlawful arrest and detention against the first respondent, the claim is pleaded as a main claim with two alternatives as follows:

“CLAIM 1: FIRST DEFENDANT

12. The arrest and/or subsequent detention of the Plaintiff were unlawful in the fact that:

12.1 the arresting officer did not take into account the plaintiff’s right in term of section 12 of the Constitution, Act 106 of 1996.

12.2 the Plaintiff was arbitrarily and without good cause deprived of his freedom;

12.3 the arresting officer had no grounds to interfere with the plaintiff’s constitutional right, in that:

12.3.1 the plaintiff did not pose any risk to the community;

12.3.3 there were no grounds presented to believe the plaintiff

would harm or any other person of the public;

12.3.4 the Plaintiff was in a position and had the will to refute the allegations against him;

12.3.5 there was no urgency for the arrest of the plaintiff;

12.3.6 the fact that the Plaintiff had a known and fixed address was not taken into consideration;

12.3.7 The strength of the state case against the Plaintiff was not taken into account when considering the plaintiffs bail application.

FIRST ALTERNATIVE:

13. The arrest and/or subsequent detention of the Plaintiff was unlawful due to the fact that the arresting officer had no prima facie case and/or reasonable grounds to believe that the plaintiff committed the said offence.

14. The arrest and or the subsequent detention of the Plaintiff was unlawful due to the fact the arresting officer did not exercise his discretion or did exercise his discretion properly in that:

14.1 that there was no obligation on him to arrest and or detain the plaintiff.

15. As a result of the unlawful arrest and or subsequent detention by the arresting officer the Plaintiff suffered damages in the sum of R 2 000 000.00 (Two Million Rand ) for:

15.1 depriving the plaintiff of his freedom;

15.3 severe emotional stress and psychological trauma;

15.6 legal expenses incurred by the Plaintiff in his defence. The amount of R 2 000 000.00 (Two Million Rand) is a global amount of the Plaintiff’s damages.”

[36] In my view, the main relief sought in the particulars of claim on claim 1 does not advance the appellant’s case so as to bring it in line with De Klerk. In De Klerk it was specifically pleaded that “the applicant was arrested without a warrant by members of the Sandton SAPS” and “[a]s a result of the [applicant’s] wrongful and unlawful arrest and detention”, he suffered the harm in respect of which he seeks to hold the respondent liable (the entire period of detention).”

[37] On the contrary, the relief sought in the first alternative in the particulars of claim on claim 1, accords with the case pleaded in De Klerk. In particular that the arrest and/or subsequent detention of the deceased plaintiff was unlawful due to the fact that the arresting officer had no prima facie case and/or reasonable grounds to believe that the deceased plaintiff committed the said offences. As will be demonstrated infra, these averments provide the causal link on the claim for malicious prosecution, which advanced the continued detention of the deceased plaintiff post first appearance in court. This therefore engages the question of legal causation, relevant to the entire period of the deceased plaintiff’s detention.

[38] As to how to determine the liability of the first respondent for detention post-court appearance, De Klerk made it plain that the issue should be determined on the principles of legal causation having regard to the applicable tests and policy considerations. In determining such liability, the considerations may include “a consideration of whether the post-appearance detention was lawful.” Again, this will touch on the causal connection between the unlawful arrest pre-court appearance and the conduct of the prosecutor who took the decision to enrol the matter and thereby initiating the prosecution. A further consideration is the conduct of the police after an unlawful arrest, “…especially if the police acted unlawfully after the unlawful arrest of the plaintiff…”.

[39] In the final analysis, De Klerk made it clear that “…every matter must be determined on its own facts – there is no general rule that can be applied dogmatically in order to determine

liability.” The peculiar facts of the present appeal must therefore be determinative of the outcome of the appeal, with due regard to the ratio in De Klerk on legal causation.

[40] I re-iterate that the court a quo’s findings on the unlawful arrest of the deceased plaintiff have not been assailed on appeal before us. Those findings in my view are crucial to the issue of legal causation which impacts the period of detention and the claim for malicious prosecution for that matter. The following extract from the judgment of the court a quo is particularly important on the question of legal causation. “lt is common cause that the offence for which plaintiff was arrested for was not committed in the presence of the arresting officer, Constable Ncube. There is no evidence before me that the arresting officer had conducted any investigation in this matter before he had affected the arrest except for stating that plaintiff was wearing All Star sneakers and that plaintiff informed him that his friends are

the ones who killed Mr B[...]. He was therefore required to analyze and assess the quality of the information at his disposal critically

and should not accept it lightly or check it where it could be checked, for example by obtaining statement of the complainant and

ascertaining that plaintiff is linked to the offence. lt is only after he had done this that would allow himself to entertain a

suspicion that would justify any arrest. The suspicion must be based in reasonable grounds failing which it would be lightly or

arbitrarily and not reasonable suspicion… The plaintiff had not committed the offences for which he was arrested for in the presence of Ncube. Constable Ncube arrested plaintiff based the AII Star sneakers and plaintiff telling him that Mr B[...] was killed by his friends which plaintiff has denied and which was not recorded anywhere in the docket. Adv Munyai also stated that, the spontaneous statement of Constable Ncube would not stand the Constitutional test. Constable Ncube also confirmed during cross examination that All Star sneakers are popular shoes and no shoe print test were made during the investigation to show that All Star prints found or seen at the scene of crime belonged to the plaintiff. Since that is the case, the second, third and fourth jurisdictional facts mentioned in paragraph 50 herein above not satisfied by the arresting officer before making the arrest. It follows therefore that the arrest and subsequent detention of the plaintiff was unlawful since there was no reasonable suspicion that plaintiff has committed the said offences.”

[41] I hasten to add in this regard, the sentiments expressed by Musi AJA in Biyela v Minister of Police 2023 (1) SACR 235 (SCA) at paragraphs [35] and [36] insofar as it impacts on Constable Ncube’s decision, to arrest the deceased plaintiff:

“[35] What is required is that the arresting officer must form a reasonable suspicion that a Schedule 1 offence has been committed based on credible and trustworthy information…

[36] The arresting officer is not obliged to arrest based on a reasonable suspicion because he or she has a discretion. The discretion to arrest must be exercised properly. Our legal system sets great store by the liberty of an individual and, therefore, the discretion must be exercised after taking all the prevailing circumstances into consideration.

[42] The basis on which the deceased plaintiff was arrested, was recorded in paragraph 4 of the statement of Constable Ncube, which was not commissioned. It is essentially on the facts recorded in paragraph 4 as echoed in Constable Ncube’s oral evidence, that the court a quo found that there was no reasonable suspicion that the deceased plaintiff committed the offences he was arrested for. That position did not change when the docket was presented to Mr Bondesio for a decision. Logically, if no reasonable suspicion

existed for the arrest of the deceased plaintiff as Constable Ncube’s suspicion was not based on credible and reliable information which emanated from the deceased plaintiff’s self-serving utterance to him, it is questionable on what basis Mr Bondesio could initiate the prosecution. This brings me to the next link in the causal connection in the detention of the deceased plaintiff.

[43] The statement of Constable Ncube was not commissioned at the time the time the docket was presented to Mr Bondesio on 18 September 2013. In fact, the uncontroverted evidence adduced in the court a quo is that Constable Ncube’s statement was not commissioned with the effect that it had no probative value. Mr Bondesio pleaded

ignorance on not knowing that the statement on which he based his decision to initiate the prosecution of the deceased plaintiff was not commissioned. That on its own constitutes gross negligence on his part. The basic premise is that in the absence of a commissioned

affidavit from Constable Ncube, Mr Bondesio should have declined to enroll the matter. Gross negligence, on its own, however has been held not to constitute a basis for liability for malicious prosecution per Moleko supra.

[44] Even if the content of paragraph 4 of Constable Ncube’s statement were to be construed as an affidavit, albeit that it is not, the question of a prima facie case comes to the fore. The court a quo emphatically found in respect of those allegations by Constable Ncube, and I re-iterate, that there was no reasonable suspicion that the deceased plaintiff committed the offences he was arrested for. It is inimical to a consideration of the claim for malicious prosecution that Mr Bondesio was confronted only with paragraph 4 of Constable Ncube’s statement, which contained no credible and trustworthy information or evidence implicating the deceased plaintiff in the commission of the crimes alleged.

[45] The role of Mr Bondesio in perpetuating the unlawful detention of the deceased plaintiff, is brought squarely to the fore in this regard. As highlighted above, Mr Bondesio was grossly negligent in not having regard to the fact that Constable Ncube’s statement was not commissioned. This is in direct contradiction to his role as a prosecutor in the administration of justice which, as set out supra, required of him to perform his duties, amongst others, fairly by giving due consideration to declining to prosecute either conditionally or unconditionally, in the circumstances of this matter.

[46] More importantly, however, when he decided to institute criminal proceedings against the deceased plaintiff, it was incumbent upon him to consider whether the contents of paragraph 4 of Constable Ncube’s statement provided a basis which was well-founded upon evidence, which if reasonably believed to be reliable and admissible, would constitute a prima facie case and could lead to a conviction. If not, he was duty bound not to initiate the prosecution as he elected to do.

[47] The conduct of Constable Ncube which was perpetuated by Mr Bondesio relevant to the question of causality, falls squarely within the ambit of the sentiments expressed in Lederman v Moharal Investments (Pty) Ltd, supra. Constable Ncube, by arresting the deceased plaintiff, clearly labored under a belief that the deceased plaintiff was involved in the charges he was arrested for, and by so doing a reasonable person would conclude that he acted with a specific view to a prosecution of the deceased plaintiff. This belief of Constable Ncube set out in paragraph 4 of his statement, is what Mr Bondesio perpetuated when he relied on same to initiate the prosecution of the deceased plaintiff. There is thus a clear causal connection between the conduct of Constable Ncube and that of Mr Bondesio.

[48] This begs the question whether the second respondent is immune from liability for the conduct of Mr Bondesio for malicious prosecution? Adv Munyai post the appearance and detention of the deceased plaintiff was the only voice of reason in the wilderness. He decided that in the absence of any other evidence, real or documentary, implicating the deceased plaintiff in the commission of the offence, that paragraph 4 of Constable Ncube’s statement did not suffice, even for instituting the prosecution. Whilst Mr Bondesio remained adamant even after the withdrawal of charges against the deceased plaintiff that paragraph 4 was sufficient basis for a prima facie case, he is wrong in that belief. Adv Ndimande harboured a similar belief to Mr Bondesio, but was ultimately swayed in conceding

that there was no prima facie case inherent in the content of paragraph 4 of Constable Ncube’s statement.

[49] It follows axiomatically that if there was no prima facie case against the deceased plaintiff, that there could have been no reasonable and probable cause to institute the prosecution. Mr Bondesio believed that the deceased plaintiff had information of the true perpetrators of the offences, based on what Constable Ncube stated in paragraph 4 of his statement. What he lost sight of was that the content of paragraph 4 constituted a self-serving statement from the deceased plaintiff, in which he exonerated himself from any involvement in the murder of Mr B[...]. No successful prosecution could ever have come from this statement. The position is succinctly stated in S v Lubaxa (372/2000) [2001] ZASCA 100; [2002] 2 All SA 107 (A) (25 September 2001), albeit in the context of the application of the provisions of section 174 of the Criminal Procedure Act 51 of 1977, as follows:

“[19] … Clearly a person ought not to be prosecuted in the absence of a minimum of evidence upon which he might be convicted, merely in the expectation that at some stage he might incriminate himself. That is recognised by the common law principle that there should be “reasonable and probable” cause to believe that the accused is guilty of an offence before a prosecution is initiated (Beckenstrater v Rottcher and Theunissen 1955(1) SA 129 (A) at 135C-E), and the constitutional protection afforded to dignity and personal freedom (s 10 and s 12) seems to reinforce it. It ought to follow that if a prosecution is not to be commenced without that minimum of evidence, so too should it cease when the evidence finally falls below that threshold.”

[50] By proceeding to institute the prosecution with a spes (hope) that the deceased plaintiff would implicate “his friends” whom he claimed were responsible for the murder was malicious on the part of Mr Bondesio, actuated by an improper motive and intentionally so. This intentional, improper motive is further demonstrated by Mr Bondesio’s opposition to bail when no further evidence was forthcoming against the deceased plaintiff some seven months later. The role of Captain Mpunzi in regard to the further detention of the deceased plaintiff is demonstrated through the evidence of Constable Ncube that when he enquired why the detention persisted in the absence of incriminating evidence, he was told it was because the deceased plaintiff did not want to co-operate. Those facts, however in my view, impacts on the issue of quantum.

[51] The appeal in respect of the claim for unlawful arrest and detention against the first respondent accordingly stands to be upheld, insofar as the first respondent is liable for the detention of the deceased plaintiff from the date of his arrest, until the charges against him were withdrawn.

[52] The appeal in respect of the claim for malicious prosecution similarly stands to be upheld.

The appeal against the cost order in the court a quo

[53] The court a quo ordered costs in respect of the claim for unlawful arrest and detention on the Magistrates Court scale, on the basis of the quantum awarded for the detention pre-court appearance. In respect of the claim for malicious prosecution which was dismissed, each party was ordered to bear its own costs. In light of the findings on appeal, the appeal against the cost orders stand to be upheld. The appellant is entitled to costs on the High Court scale on a party-party basis, which costs shall include the costs of counsel at trial.

Costs in this Court

[54] The appellant employed two counsel for the prosecution of the appeal. The argument for the employment of two counsel essentially being that the matter engages novel issues distinguishable from De Klerk. On a careful analysis of the grounds of appeal and applying the salient principles enunciated in De Klerk on causation, there are no novel issues. At most, the facts of this matter are distinguishable from De Klerk insofar as the deceased plaintiff was arrested in circumstances which did not justify an arrest, and where the prosecution on the basis of a statement which was not commissioned, initiated the prosecution. The matter is further exacerbated by the contents of paragraph 4 of Constable Ncube’s statement which absent the issue related to the statement which is not commissioned, did not muster the test for a prima facie case and on which basis there could be no reasonable and probable cause to initiate the prosecution. The utterance of Captain Mpunzi on which much emphasis was placed, to distinguish this matter from De Klerk as indicated above, impacts more on the merits and the issue of detention post first court appearance.

[55] I can accordingly find no basis to justify the employment of two Counsel by the appellant. As made clear in De Klerk, each matter must be adjudicated on its own facts and that is all that was required in this matter. A careful analysis of the peculiar

circumstances of this matter is all that was required. Costs in the appeal, which the appellant is entitled to, is therefore limited to the costs of one counsel.

Quantum

[56] On the issue of quantum, having regard to this Court’s findings, the court a quo, even if differently constituted, should be placed in a better position than this Court on appeal to determine an appropriate award on quantum. The issue of quantum is therefore referred back to the court a quo for determination, having due regard to the findings of this Court on appeal.

Order

[57] In the result, the following order is made:

(i) The appeal in respect of the claim for unlawful arrest and detention and malicious prosecution is upheld with costs, which costs shall include the costs of one Counsel.

(ii) The order of the court a quo is set aside and replaced with the following order:

“(a) The first defendant is liable for the plaintiff’s unlawful arrest and detention for the duration of his incarceration from the date of his arrest on 15 March 2013 until the date of his release on 26 February 2015.

(b) The second defendant is liable for the malicious prosecution of the plaintiff.

(c) The first and second defendants are ordered to pay the costs of action on the merits, jointly and severally the one paying the other to be absolved.”

A H PETERSEN

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

I agree

R D HENDRICKS

JUDGE PRESIDENT OF THE HIGH COURT

I agree.

S S MAAKANE

ACTING JUDGE OF THE HIGH COURT,

APPEARANCES

COUNSEL FOR APPELLANTS: ADV T. SEBOKO with ADV MZIKAZI Instructed by: Makgetha & Molemane Attorneys c/o Ntsamai Attorneys Inc. 54 Molopo Road, Golf View MAHIKENG COUNSEL FOR RESPONDENTS: ADV M. MOAGI Instructed by: State Attorneys First Floor, Mega City Cnr Sekame & James Moroka Ave MMABATHO DATE OF HEARING: 10 MARCH 2023 DATE OF JUDGMENT: 28 JULY 2023