Mulaudzi v Minister of Safety and Security and Others (1088/2016; 1700/2019) [2024] ZALMPTHC 23 (14 February 2024)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO LOCAL DIVISION, THOHOYANDOU

CASE NO:1088/2016

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED.

DATE: 14/02/2024

In the matter between: MULAUDZI NDATENI MARCUS Plaintiff And MINISTER OF SAFETY AND SECURITY First Defendant NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Second Defendant THE MINISTER OF JUSTICE Third Defendant CASE NO:1700/2019 In the matter between: NNDWAMBI NTSHAVHENI SAMUEL Plaintiff And NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS First Defendant THE MINISTER OF JUSTICE Second Defendant

JUDGMENT

MPHAHLELE AJ

INTRODUCTION

[1] The Plaintiffs in the above actions claim damages against the National Director of Public Prosecutions (“the NDPP”) based on malicious prosecution.

[2] In the light of the facts giving rise to each of the actions being substantially the same (arising out of the prosecution of the Plaintiffs as co-accused), the actions have been consolidated for hearing.

[3] The parties agreed that the matters be adjudicated upon by the Honourable Court in the form of a special case in terms of Rule 33 of the Uniform Rules of Court.

[4] In terms of Rule 33(1) - 33(2)(a), the parties agree upon a written statement of facts as set out herein setting forth the facts agreed upon; the questions of law in dispute between the parties and their contentions thereon.

[5] For purposes of this written statement of facts:

a. the Plaintiff in the action instituted under case number 1088/2016 (Marcus Ndateni Mulaudzi) was be referred to as the First Plaintiff;

b. the Plaintiff in the action instituted under case number 1700/2019 (Samuel Ntshavheni Nndwambi) was be referred to as the Second Plaintiff;

c. the First Plaintiff and the Second Plaintiff where appropriate were referred to collectively as the Plaintiffs.

[6] The First Plaintiff does not persist in his claim of unlawful arrest and detention against the Minister of Safety and Security (as the First Defendant in the action instituted under case number 1088/2016).

[7] Leave was granted separating the issue of merits (liability) and quantum in terms of Rule 33(4).

STATEMENT OF AGREED FACTS:

[8] The parties agreed upon the following facts in respect of the Plaintiffs:

a. On 26 March 2006 the First Plaintiff was arrested by members of the SAPS on charges of murder, robbery with aggravating circumstances and attempted murder.

b. During or about March 2006 Adv D B Manyuha, acting in the course and scope of his employment with the NDPP, set the law in motion by instituting the prosecution against the First Plaintiff on charges of murder, robbery with aggravating circumstances and attempted murder.

c. On 24 May 2006 the Second Plaintiff was arrested by members of the SAPS on the same charges of murder, robbery with aggravating circumstances and attempted murder.

d. During or about May 2006 Adv Manyuha (acting in the course and scope of his employment with the NDPP) set the law in motion by instituting the prosecution against the Second Plaintiff on charges of murder, robbery with aggravating circumstances and attempted murder.

e. On 22 August 2006 the Plaintiffs were convicted by the Limpopo High Court, Thohoyandou (per Makgoba AJ, as he then was) of murder and robbery with aggravating circumstances and were sentenced:

i. to life imprisonment on the count of murder;

ii. in the case of the First Plaintiff, to ten years’ imprisonment on the count of robbery with aggravating circumstances;

iii. in the case of the Second Plaintiff, to twenty years’ imprisonment on the count of robbery with aggravating circumstances (ten years of which sentence was to run concurrently with the sentence on the count of murder).

f. On 13 March 2007 the Limpopo High Court, Thohoyandou (per Makgoba AJ) refused the application for leave to appeal brought by the Second Plaintiff against his conviction and sentence.

g. On 24 March 2009 the Limpopo High Court, Thohoyandou (per Hetisani J) refused the application for leave to appeal brought by the First Plaintiff against his conviction and sentence.

h. On 5 May 2016 the Supreme Court of Appeal (“SCA”) set aside the convictions and related sentences of the First Plaintiff (pursuant to leave to appeal having been granted by the SCA).

i. On 14 June 2018 the SCA set aside the convictions and related sentences of the Second Plaintiff (pursuant to leave to appeal having been granted by the SCA).

PARTIES CONTENTIONS IN TERMS OF THEIR RULE 33 STATEMENT

[9] The Plaintiffs avers that Adv Manyuha, instigated their prosecution based on the statements contained in SAPS docket Siloam CAS 66/07/2005, but it is disputed by the NDPP that:

a. there was no reasonable and probable cause for the prosecution of the Plaintiffs;

b. in instigating the prosecution against the Plaintiffs, Adv Manyuha was actuated by malice;

c. Adv Manyuha acted animo injuriandi in instigating the prosecution against the Plaintiffs; and

d. that the institution of criminal proceedings against the Plaintiffs was not justified.

[10] The Defendant avers that (irrespective of whether or not the facta probanda for a claim based on malicious prosecution are met) that:

a. the detention of the First Plaintiff up until 22 August 2006 pursuant to bail having been refused, was as a consequence of a judicial act in terms of which he was remanded in custody from time to time;

b. the NDPP is accordingly not liable towards the First Plaintiff for damages in respect of his detention pursuant to bail having been refused (as a consequence of which he was detained up until 22 August 2006);

c. the incarceration of the Plaintiffs from 22 August 2006 until 5 May 2016 and 14 June 2018 respectively was as a consequence of a judicial act in terms of which the Plaintiffs were sentenced after having been convicted by the Limpopo High Court, Thohoyandou;

d. the NDPP is accordingly not liable towards the Plaintiffs for damages arising out of their incarceration pursuant to the Plaintiffs having been convicted and sentenced.

ISSUES TO BE DETERMINED.

[11] The parties submitted that, in the light of the parties’ contentions respectively as set out above, the questions of law which arise are:

a. whether or not the facta probanda for a claim based on malicious prosecution are met in respect of each of the Plaintiffs;

b. in the event of the facta probanda for a claim based on malicious prosecution being met, whether or not the NDPP is liable to either of the Plaintiffs in the light of paragraphs above.

SUBMISSIONS BY THE PLAINTIFFS.

[12] Adv Mpshe SC for the Plaintiffs submitted that, on the basis of the statements in the police docket, there was no basis upon which the prosecutor should have charged both Plaintiffs. He further stated that:

a. the Plaintiffs were convicted on the basis of section 217 of the Criminal Procedure Act No. 51 of 1977 (“CPA”) confession, which confession was not admissible against the Plaintiffs;

b. section 219 of the CPA provides that no confession made by any person shall be admissible as evidence against another person;

c. the prosecution initiated a prosecution of the Plaintiffs which resulted in their incarceration. The incarceration is therefore the consequences of the act of the prosecution.

d. The SCA said that evidence of Leroy Mushweu has not been corroborated to an extent that conviction will follow thereof.

SUBMISSIONS BY THE DEFENDANT

[13] Adv Bester SC for the Defendant submitted that:

a. the statement made by Leroy Mushweu was not section 217 of CPA confession but a statement made in terms of section 219 A of the CPA;

b. the statement made was thus not a confession but admission made extra-judicially in terms of section 219 A of CPA;

c. the SCA never said that there was no probable cause. There was more than reasonable and probable cause to charge the Plaintiffs. Both were refused leave to appeal;

d. Leroy Mushweu was at the scene of the murder and linked with DNA to the scene and such one of the perpetrators and he incriminated both Plaintiffs in his warning statement made before a police officer, which is an extra curial statement and not a confession but admission made extra-judicially in terms of section 219 A of the CPA;

e. Leroy Mushweu made serious admissions in his statement short of a confession. Not only did Leroy Mushweu implicate First and Second Plaintiffs but also Mudzunga implicated the Second Plaintiff.

[14] Adv Bester SC for the Defendant submitted that the Second Plaintiff was released on bail which is a judicial act that breaks the chain of events and conviction a fortiori a deliberate act and the liability of NDPP is truncated. NDPP can only be liable up until bail was granted in respect of the Second Plaintiff and in respect of the First Plaintiff up until bail was refused.

IS a statement of leroy Mushweu a confession or extra curial statement.

[15] Before I could deal with the claim of malicious prosecution, it is important that I should clarify whether the Statement made by Leroy Mushweu was a confession in terms of section 217 of the CPA or an extra curial statement in terms of section 219 A of the CPA.

[16] The importance of a finding in this respect is to address the submissions of Adv Mpshe SC which were to the effect that the NDPP should have been aware that Leroy Mushweu’s confession was not admissible as against the Plaintiffs and as a result should not have prosecuted the Plaintiffs.

[17] Adv Bester SC disputed that Leroy Mushweu made a confession in terms of section 217 of the CPA but instead submitted that the statement was an extra curial statement made in terms of section 219 A of the CPA.

[18] A confession is an unequivocal acknowledgement of guilt, made out of court[1] whilst an informal admission is a statement made out of court which is adverse to that party's case.[2] The rules for admissibility for a confession are detailed in section 217 of the CPA and the rules for admissibility for an informal admission are detailed in the same act in section 219A.

[19] All that is required for an informal admission to be admitted is that it is proved to have been voluntarily made. The rules for the admissibility of a confession require that it be made voluntarily, in sound and sober senses and without undue influence.

[20] In S v Ndhlovu the SCA held that where the interest of justice, which are constitutionally measured, require the admission of the statement, the constitutional right to a fair trial (or indeed any constitutional right) is not infringed.[3]

[21] The Supreme Court of Appeal in S v Litako[4] reconsidered the landmark decision of the same court in S v Ndhlovu[5] in which the court held that an informal admission made by one accused could be admitted against a co-accused even if the accused in court denies making the statement and the statement itself is therefore considered to be hearsay.

[22] The court in S v Ndhlovu applied section 3 of the Law of Evidence Amendment Act[6], and found that the hearsay extra curial admission could be admitted in the interests of justice. In S v Litako, however, the court found that section 3 did not overrule an existing common law rule, which is that the extra curial statement of an accused (whether an informal admission or a confession) cannot be tendered against a co-accused.[7] This is because section 3 does not expressly overrule this common law rule. Rather, the provision itself requests that its application be subject to the common law.[8]

[23] It seems on the considered authorities that section 219A of the CPA is capable of two interpretations. The SCA in S v Ralukukwe[9] ( an authority referred to by the defendant in their submissions) and the trial court in Ndhlovu[10] have both interpreted the provision to not constitute a prohibition on the use of an informal admission against a co-accused.

[24] I align myself with both S v Ndhlovu[11] and S v Ralukukwe.[12] I am satisfied that the statement made by the Leroy Mushweu was an admission made extra-judicially in terms of section 219 A, wherein

both First and Second Plaintiffs were implicated.

[25] In my view, the statement made by Leroy Mushweu in terms of section 219 A of CPA can be admissible against his co-accuseds on the basis of section 3 of the Law of Evidence Amendment Act.[13]

[26] However, whether such a statement extra-judicially in terms of section 219 A of CPA is admissible or not; is not an issue relevant to the decision or whether the co-accuseds should be charged or not. In casu, the statement is relevant in determining whether the Plaintiffs were implicated by Leroy Mushweu in the statement when a decision to charge the Plaintiffs has to be made by the prosecution.

[27] It was, thus, not unreasonable for the prosecution to have considered the extra curial statement of Leroy Mushweu to determine if they were implicated in the commission of the crime and to charge the Plaintiffs taking into consideration the doctrine of common purpose.

APPLICABLE LEGAL PRINCIPLES TO A CLAIM OF MALICIOUS PROSECUTION

[28] It is trite that in order to succeed (on the merits) with a claim for malicious prosecution, a claimant must allege and prove the following elements:[14]

"(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."

[29] The Supreme Court of Appeal in Minister for Justice and Constitutional Development and 2 Other v Moleko[15] said the following:

"Reasonable and probable cause, in the context of a claim for malicious prosecution, means an honest belief founded on reasonable grounds that the institution of proceedings is justified. The concept there- fore involves both a subjective and an objective element- 'Not only must the defendant have subjectively had an honest belief in the guilt of the plaintiff, but his belief and conduct must have been objectively reasonable, as would have been exercised by a person using ordinary care and prudence."'

[30] If reasonable grounds are absent but the defendant honestly believes that the plaintiff is guilty or that there are reasonable grounds,

wrongfulness is lacking. This would also occur in the event of a mistake on the part of the defendant.

[31] It was held in Relyant Trading (Pty) Ltd v Shongwe and another[16]: “although the expression ‘malice’ is used, it means, in the context of the actio iniuriarum, animus iniuriandi”.

[32] For the shifting of the evidentiary burden to occur, the plaintiff must first establish that a defendant is proved to have initiated a prosecution without reasonable grounds.

[33] In Eis v Minister of Law and Order and Others[17] the Court stated that the general acceptance in our law is that an action for malicious prosecution may not be instituted until criminal proceedings have been terminated in favour of the Plaintiff.

[34] The SCA in S v Lubaxa[18] at par 19, held as follows:

“Clearly a person ought not to be prosecuted in the absence of a minimum 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 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 minimum evidence, so too should it cease when the evidence finally falls below that threshold”

[35] In Pelle v Minister of Police and Others[19], the Court said that one also needs to consider the interests of the community. The law enforcement agencies and the National Prosecuting

Authority are under pressure to regain the trust of the public and be effective in their pursuit to bring criminals to book. There needs to be a balance between the public and all individuals who are involved in the system, including suspects, the accused, witnesses, and victims of crime. The rule of law must prevail.

[36] The CC De Klerk v Minister of Police[20] clearly dealt with when is detention be regarded as unlawful and who should be responsible. A delict comprises wrongful, culpable conduct by one person that factually causes harm to another person that is not too remote.[21] When the harm in question is a violation of a personality interest caused by intentional conduct, then the person who suffered the harm must institute the actio iniuriarum (action for non-patrimonial damages) to claim compensation for the non-patrimonial harm suffered. The harm that a person complains

of in respect of detention is the deprivation of his or her liberty – a significant personality interest.[22]

[37] The plaintiff must establish that the conduct of the defendant must have caused, both legally and factually, the harm for which compensation is sought.[23]

[38] The unlawfulness of the arrest is not at issue before me. I also not required to determine what happened during the bail proceedings in order to determine whether any conduct of the prosecution adversely affected any rights of the Plaintiffs or not. I can assume that because of the nature and seriousness of the offences the plaintiffs were facing, section 60(11)(a) of the Act required that they be detained in custody until they were dealt with in accordance with the law, unless they, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist which in the

interest of justice permit their release.

IS THE DEFENDANT LIABLE FOR THE DETENTION OF THE PLAINTIFFS BEFORE THEIR FIRST APPEARANCE IN COURT.

[39] A decision to prosecuted the Plaintiffs was taken before their first appearance. It is thus important to deal with the legal principles relating to the period of detention before the first appearance in court. In so doing, determine if the Defendant is responsible for the said period of detention.

[40] In Mahlangu and Another v Minister of Police[24], it was held that it is only when a causal link is established between the arresting officer’s conduct and the subsequent harm suffered by the plaintiff that the defendant is said to be liable for detention after first appearance. The Constitutional Court held that ‘the unlawful continued concealment by the police of the fact that the confession was obtained illegally therefore provides the applicants

with a basis for holding the Minister delictually liable for the full detention period.’

[41] Causation comprises a factual and legal component.[25] Factual causation relates to the question whether the act or omission caused or materially contributed to the harm.[26] The “but-for” test (conditio sine qua non) is ordinarily applied to determine factual causation.[27] If, but for a wrongdoer’s conduct, the harm would probably not have been suffered by a claimant, then the conduct factually caused the harm.[28]

[42] Legal causation is concerned with the remoteness of damage. This entails an enquiry into whether the wrongful act is sufficiently

closely linked to the harm for legal liability to ensue.[29] Generally, a wrongdoer is not liable for harm that is too remote from the conduct concerned[30] or harm that was not foreseeable.[31]The function of legal causation is to ensure that liability on the part of the wrongdoer does not extend indeterminately.[32]

[43] The question of legal causation is whether that further harm is too remote from the initial conduct for liability to be imputed to the defendant.[33] In this way, remoteness operates along with wrongfulness as a measure of judicial control regarding the imposition of delictual liability and as a “‘longstop’ where most right-minded people will regard the imposition of liability in a particular case as untenable, despite the presence of all other elements of delictual liability”.[34]

[44] In S v Mokgethi[35], the then Appellate Division adopted an “elastic” approach to legal causation. This approach is sensitive to public policy considerations and aims to keep liability within the bounds of reasonableness, fairness, and justice.

[45] It is trite that these considerations of public policy are grounded in the Constitution and its values. In Mashongwa v PRASA[36], the Constitutional Court held:

“No legal system permits liability without bounds. It is universally accepted that a way must be found to impose limitations

on the wrongdoer’s liability. The imputation of liability to the wrongdoer depends on whether the harmful conduct is too remotely connected to the harm caused or closely connected to it. When proximity has been established, then liability ought to be imputed to the wrongdoer provided policy considerations based on the norms and values of our Constitution and justice also point to the reasonableness of imputing liability to the defendant.”[37] (Emphasis added.)

[46] Further, in Isaacs v Minister van Wet en Orde[38] it was common cause that the appellant’s arrest was unlawful and the question for determination was whether the appellant’s

unlawful arrest had the result that his detention following the Magistrate’s subsequent detention order was unlawful.[39]

[47] The Appellate Division concluded that competence afforded by section 50(1) of the Criminal Procedure Act was not dependent on the prior arrest being lawful. It found that a detainee’s continued detention pursuant to an order of court remanding him in custody in terms of section 50(1) of the Criminal Procedure Act may be lawful even though the detention followed from an unlawful arrest.

[48] In Minister of Safety and Security v Tyokwana[40], the Supreme Court of Appeal considered whether Isaacs laid down the rule that all detention following a court appearance is automatically lawful.[41] It answered this question in the negative and clarified that the principle emerging from Isaacs’ is that the fact that a person may have been unlawfully arrested does not automatically negate the lawfulness of their

continued detention arising from a court order in terms of section 50(1). Isaacs does not, however, mean that every remand order in terms of section 50(1) renders further detention lawful.[42]

[49] What we can discern from the SCA’s decision of Minister of Safety and Security v Tyokwana[43] is that an arrested person’s detention in custody after his first appearance is automatically lawful. The unlawful arrest does not preclude a lawful remand in custody but by the same token not every remand in custody will be lawful.[44]

[50] What matters is whether, substantively, there was just cause for deprivation of liberty.[45] Moreover, in determining whether the deprivation of liberty pursuant to a remand order is lawful, a court can consider the manner in which the remand order was made.[46] Hence, the Supreme Court of Appeal considered how the remand decision was materially influenced by a wrongful omission by the arresting officer.

[51] The Supreme Court of Appeal, in Woji v Minister of Police[47] having regard to section 12(1)(a) of the Constitution and the Constitutional Court’s decision in Zealand, concluded that:

“an examination of the legality of the manner in which the Magistrate’s discretion to further detain Mr Woji was exercised, cannot be precluded simply by the existence of the magistrate’s order. The Constitutional Court in Zealand did not require the decisions of the respective magistrates to be set aside, before the lawfulness of the appellant’s detention could be determined. Once it is clear that the detention is not justified by acceptable reasons and is without just cause in terms of section 12(1)(a) of the Constitution, the individual’s right not to be deprived of his or her freedom is established. This would render the individual’s detention unlawful for the purposes of a delictual claim for damages.”[48]

[52] The Court’s conclusion implies that the mere existence of a remand order is not enough to break the chain of causation.

[53] The liability of the police for detention after court appearance should not be determined solely on the basis of whether the further detention was lawful, although that is a relevant consideration. Instead, liability should be determined in accordance with the principles of legal causation, including constitutionally infused considerations of public policy.

[54] In the Minister of Police and Another v Erasmus[49] (Tsoka AJA (Dambuza, Van der Merwe and Mocumie JJA and Weiner AJA concurring), the Supreme Court of Appeal (‘SCA’)

considered the liability of the police for post-court appearance in a delictual claim based on the actio iniuriarum for unlawful arrest and detention, not caused by unlawful conduct of the police. The SCA in this regard considered the elements of malicious deprivation of liberty.

[55] The legal position regarding as encapsulated in Minister of Police and Another v Erasmus is follows:[50]

“[11] It is necessary, at the outset, to set out the basic principles of our law that are applicable to the determination of the liability of the Minister and the NDPP for the deprivation of the liberty of Mr Erasmus for this period. These are the following. Both wrongful and malicious deprivation of liberty are iniuria actionable under the actio iniuriarum. Wrongful deprivation of liberty (detention) takes place where the defendant himself, or his agent or employee, detains the plaintiff. Malicious detention takes place under or in terms of a valid judicial process, where the defendant makes improper use of the legal machinery of the state. The requirements to succeed in an action for malicious detention are therefore like those for malicious prosecution namely: that the defendant instigated the detention; that the instigation was without reasonable and probable cause; and that the defendant acted with animus iniuriandi. See Neethling et al Law of Delict 5 ed (2006) at 304-306. It follows that the NDPP could only be liable for the second period of detention if these stringent requirements were proved in respect of the relevant prosecutors.

[12] When the police wrongfully detain a person, they may also be liable for the post-hearing detention of that person. The cases show that such liability will lie where there is proof on a balance of probability that, (a) the culpable and unlawful conduct of the police, and (b) was the factual and legal cause of the post-hearing detention. In Woji v Minister of Police [2014] ZASCA 108; 2015 (1) SACR 409 (SCA), the culpable conduct of the investigating officer consisting of giving false evidence during the bail application caused the refusal of bail and resultant deprivation of liberty. Similarly, in Minister of Safety and Security v Tyokwana [2014] ZASCA 130; 2015 (1) SACR 597 (SCA), liability of the police for post-hearing detention was based on the fact that the police culpably failed to inform the prosecutor that the witness statements implicating the respondent had been obtained under duress and were subsequently recanted and that consequently there was no credible evidence linking the respondent to the crime. In De Klerk v Minister of Police [2019] ZACC 32; 2020 (1) SACR (CC) paras 58 and 76, the decisive consideration in both the judgments that held in favour of the appellant was that the investigating officer knew that the appellant would appear in a ‘reception court’ where the matter would be remanded without the consideration of bail. Finally, in Mahlangu and Another v Minister of Police [2021] ZACC 10; 2021 (2) SACR 595 (CC), the investigating officer deliberately supressed the fact that a confession which constituted the only evidence against the appellants, had been extracted by torture and thus caused their continued detention. “

EVALUATION OF ISSUES.

[56] In this matter, the lawfulness of the arrest is not an issue before me, I firstly need to deal with the deprivation of liberty of the Plaintiffs from the moment of the arrest until the first appearance. In my view, the such deprivation of liberty of the Plaintiffs from the moment of the arrest until the first appearance would be as a result of them being arrested.

[57] On the date of first appearance, the prosecution will have to make a decision on whether to continue with the prosecution or oppose bail. This has the effect on whether prosecution and detention were malicious, meaning whether the decision to continue with the prosecute and further detention resulting from the decision to prosecute was unlawful.

[58] My understanding of the statement of case is that I do not necessarily have to determine the deprivation of liberty or detention as a separate issue but that it is a consequence of the malicious prosecution. In other words, the submissions of the Plaintiffs are that they should not have been prosecuted as there was no prima facie case against them and that as a result of them being prosecuted maliciously they were unlawfully detained.

[59] The Second Plaintiff was arrested on 26 February 2006 and charged on 13 March 2006. He had spent almost 15 days in detention before being charged. The detention was as a result of the arrest and not the decision to prosecute and same will hold true in respect of the period between arrest and the First Defendant being charged. As alluded above, the deprivation of liberty of the Plaintiffs from the moment of the arrest until the first appearance would be as a result of they being arrested and not because the prosecution have decided to prosecute them. However, nothing prevents the prosecution from refusing to prosecute and not enrol the matter, in which case the accused person will have to be released.

[60] Secondly, need to deal with the deprivation of liberty of the Plaintiffs from the date of their first appearance to when they were convicted and sentenced. In my view, as correctly conceded by the Plaintiffs’ Counsel, the Defendant cannot be held liable for the incarceration of the Plaintiffs after they have been convicted and sentenced on the 22 August 2006. The chain of causation was broken by an actus novus intervinience constituted by a judicial act of Justice Makgoba of Thohoyandou High Court and as such the incarceration of the Plaintiffs after 22 August 2006 was not as a consequence of malicious prosecution by the Defendant.

[61] The First Plaintiff was arrested on 26 March 2006. His claim against the Defendant is from 06 March 2006 to 22 August 2006 which is a period of five months.

[62] The Second Plaintiff was arrested on 24 May 2006. His claim against the Defendant is from 24 May 2006 to 24 August 2006 which is a period of three months. The Plaintiffs’ claims makes no distinction between malicious prosecution on one hand and unlawful or wrongful detention on the other hand. They have been fused together as if their material facts are the same.

[63] In my view, any detention before the first appearance is as a result of an arrest by the police. In terms of section 35(1) of the Constitution, an arrested person has the right to be brought before court as soon as reasonably possible but not later than 48 hours after arrest (depending on court hours) and to be released from detention subject to reasonable conditions if the interests of justice so permit.

[64] Section 38 of the Criminal Procedure Act provides for four methods of securing the attendance of an adult in court for purposes of his or her trial. They are arrest, summons, written notice and indictment. Section 39(1) provides that arrests may be made with or without a warrant and section 39(3) states that the effect of an arrest is that ‘the person arrested shall be in lawful custody’ and he or she ‘shall be detained in custody until he [or she] is lawfully

discharged or released from custody’.

[65] The plaintiffs were arrested on a Schedule 6 offence – murder. In order for them to be admitted to bail they had an onus to show that exceptional circumstances exist which in the interests of justice permit his release on bail.[51]

[66] In terms of s 60(11)(b) of the CPA, the magistrate’s court was obliged to detain the Plaintiffs until they were dealt with in terms of the law. It was then up to Plaintiffs to satisfy that court that it was in the interest of justice for him to be admitted to bail. That court was only expected to afford him a reasonable opportunity to satisfy it, on a balance of probabilities, that the interests of justice

permitted his release on bail.

[67] Unless it has been established that there was unlawful conduct by the prosecutor during bail proceedings, the detention from the time of the bail proceedings until their release constitutes was as a consequence of a judicial act.

[68] The Constitutional Court in Minister of Police v De Klerk[52] stated that The issue as to whether the applicant’s detention was consistent with the principle of legality and his right to freedom and security of the person in section 12(1) of the Constitution is a constitutional matter.

[69] The issue in Minister of Police v De Klerk[53] was about whether the harm associated with the applicant’s detention on the order of the Magistrate after his first court appearance until his release on 28 December 2012 can be attributed to the unlawful arrest by the police. The respondent contended that the unlawful detention of the applicant ceased when the Magistrate ordered his further detention.

[70] The applicant’s pleaded case was 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.[54]

[71] In this matter, I must determine not only whether the decision to prosecute the plaintiffs was without probable cause but also whether the further detention of the plaintiff from the time of their first appearance can be attributed to the decision of the Defendant to prosecute them.

[72] The second question in my view will involve an element of causation. If the first question is answered in the affirmative, the second question becomes inconsequential.

[73] Malicious prosecution consists of wrongful and intentional assault on the dignity of a person encompassing his good name and privacy.’[55] The test of absence of reasonable and probable cause was set out in Beckenstrater v Rottcher and Theunissen[56] as follows:

“ When it is alleged that a defendant had no reasonable cause for prosecuting, I understand this to mean that he did not have such

information as would lead a reasonable man to conclude that the plaintiff had probably been guilty of the offence charged, if despite

his having such information, the defendant is shown not to have believed in the plaintiff’s guilt, a subjective element comes

into play and disproves the existence, for the defendant, of reasonable and probable cause.”

[74] A prosecutor exercises discretion on the basis of the information before him or her contained in the docket.[57]. He must believe that there was a prima facie case for a successful prosecution of the plaintiff when he enrolled the matter. On the strength of such of the information he or she must exercise a discretion to prosecute or withdrew the charges against the Plaintiff.

[75] On the facts before me and having considered the evidence in totality, I cannot conclude that the NDPP did not have an honest belief founded on reasonable grounds that the institution of these proceedings were not justified.

[76] Mr Ramusetheli was shot and killed with a gun. Accused No.1 in the criminal matter Leroy Mutshweu admitted to be at the scene of the crime and was also put on the scene by Masindra Ramusetheli. In the police statement Leroy Mutshweu implicated Peter Madzugu as the person who pulled trigger and shot the deceased. Peter Madzugu says it was Leroy Mutshweu who shot and killed the deceased. The High court found that between Leroy Mutshweu and Peter Madzugu it was immaterial who shot and killed the deceased as they were acting in common purpose.

[77] Leroy Mutshweu stated that the firearm used to kill the deceased was that of the Second Plaintiff. Further that the First Plaintiff offered food to the Second Plaintiff, Leroy Mutshweu and Peter Madzugu and also transported Leroy Mutshweu and Peter Madzugu by a Toyota venture to the scene of the crime. There are no reasons why Leroy Mutshweu could just implicate the Plaintiffs if they were not involved.

[78] The SCA does not state that there was no evidence upon which Makgoba J could not have convicted the Plaintiffs. The SCA overturned the conviction and sentence because it found it inappropriate to accept the evidence of Leroy Mutshweu and reject that of the First Plaintiff because Leroy Mutshweu was a poor witness who went to great lengths not only to minimise his role at the expense of the First Plaintiff but also, most importantly, to exonerate himself.

[79] Further that Leroy Mutshweu — being the only witness who gave criminating evidence against the First Plaintiff at the trial — was a single witness. Consequently, his evidence was required to be clear and satisfactory in every material respect and the shortcomings inherent in the evidence of the Leroy Mutshweu detract from its trustworthiness.

[80] These impediments, upon which the High Court judgement was overturned, are not considerations for the prosecution when a decision has to be made whether to prosecute the Plaintiffs or not. They relate to the weight which has to be attached to the evidence of Leroy Mutshweu. This something which is within the judicial discretion and not the prosecuting authority.

[81] I am not suggesting that the prosecution should ignore the weight of the evidence before them when exercising its discretion to prosecute. I am only stating that it is something it cannot be able to determine with certainty to the extent that any failure to do so, in the circumstances of this case, can translate to negligence on their part or amount to prosecution without just cause. Each case will have to be determined based on its facts and on the facts of this case, I cannot find otherwise.

[82] What is required for the prosecution of the Plaintiffs is minimum evidence that the Plaintiffs have committed the offences they have been charged with hence the absence of a minimum evidence attracts a claim for malicious prosecution.

[83] In light of the fact before met I am not persuaded that the Defendant acted without reasonable and probable cause and that the Defendant acted with malice.

[84] In my own view the existence of a reasonable and probable cause is supported by the fact that the Plaintiffs were convicted and sentenced in the High Court. Not only a possibility existed of a reasonable and probable cause but a successful prosecution ensued in the High Court. This is what the prosecution set themselves to achieve and they did so and as a result they can be no question of whether there was a reasonable or probable cause existed or not.

[85] A determination of reasonable cause requires analysis and assessment of the quality of the information at the disposal of the prosecution critically. It is only after an examination of this information that the prosecution will entertain a probable cause. This is not to say that the information at his disposal must be of sufficient high quality and cogency to engender in him a conviction that the suspect is in fact guilty.

[86] When the prosecution is instigated, it is not on the basis of the existence of reasonable or probable cause of successful appeal but of a successful criminal prosecution. When the prosecution was instigated, the prosecution have their eyes set on successful criminal prosecution. A successful criminal prosecution was achieved and as a result there can be no question of malicious prosecution.

[87] Malicious prosecution may not be instituted until criminal proceedings have been terminated in favour of the Plaintiff. It is thus important to also determine when are criminal proceedings said to have been terminated? This begs the question: is termination of criminal proceedings, upon the conviction and sentencing of the accused person or criminal proceedings are said to have been terminated upon the exhaustion of all applicable legal remedies or subsequent appeals.

[88] In my view criminal proceedings are terminated upon the conviction and sentencing of the accused person.

[89] Further, it is a requirement of malicious prosecution that the prosecution must have failed.The reason why malicious prosecution proceedings are instituted upon termination of the criminal proceedings is intended to determine

whether the criminal proceedings have failed or not.

[90] The Plaintiffs were prosecuted in the Limpopo High Court, Thohoyandou. On 22 August 2006 the Plaintiffs were convicted by the Limpopo High Court, Thohoyandou (per Makgoba AJ, as he then was) of murder and robbery with aggravating circumstances and were sentenced:

a. to life imprisonment on the count of murder;

b. in the case of the First Plaintiff, to ten years’ imprisonment on the count of robbery with aggravating circumstances;

c. in the case of the Second Plaintiff, to twenty years’ imprisonment on the count of robbery with aggravating circumstances (ten years of which sentence was to run concurrently with the sentence on the count of murder).

[91] In my view, the prosecution in this matter has not failed but it was successful as against the Plaintiffs. Not only was the prosecution of the Plaintiff successful in the Limpopo High Court, Thohoyandou; the Court went further to deny the Plaintiffs’ leave to appeal.

[92] On 13 March 2007 the Limpopo High Court, Thohoyandou (per Makgoba AJ) refused the application for leave to appeal brought by the Second Plaintiff against his conviction and sentence.

[93] On 24 March 2009 the Limpopo High Court, Thohoyandou (per Hetisani J) refused the application for leave to appeal brought by the First Plaintiff against his conviction and sentence.

[94] The convictions and related sentences of the First Plaintiff (pursuant to leave to appeal having been granted by the SCA) were overturned on appeal on 5 May 2016 and that of the Second Plaintiff was overturned on 14 June 2018 the SCA by the SCA.

[95] The reasons for overturning the convictions and sentences of the Plaintiff has much more to do with the weight which was supposed to be attached to the nature of the evidence that was tendered in court.

[96] Every member of the authority is obliged to undertake an oath or affirmation prior to the commencement of their service to uphold this provision. The Constitution guarantees the professional independence of the National Director of Public Prosecutions and every professional member of his staff, with the obvious aim of ensuring their freedom from any interference in their functions.

[97] The untrammelled exercise of their powers in a spirit of professional independence is vital to the functioning of the legal system. The independence of the Judiciary is directly related to, and depends upon, the independence of the legal professions and of the National Director of Public Prosecutions. Undermining this freedom from outside influence would lead to the entire legal process, including the functioning of the Judiciary, being held hostage to those interests that might be threatened by a fearless, committed and independent search for the truth.”

[98] Due to fact that matter was brought before me as a stated case and the claim unlawful arrest having been abandoned, submissions before me were that the detention of the Plaintiffs were a consequence of the malicious prosecution. I, therefor, did not determine if there was a causal connection between the conduct of the police officer until the first appearance.

[99] There is no the evidence to suggest that the prosecutor acted with malice by ignoring relevant information or declining to withdraw charges when reasonably expected to have done so under the circumstances.

[100] In Minister of Justice and Constitutional Development and Others v Moleko[58], 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.”

[101] In my view, this is not a (case) where the prosecutor could be said to have acted without reasonable and probable cause or that he acted animo injuriandi when he decided to prosecute the Plaintiffs. As a result, the claim for malicious prosecution stands to be dismissed.

[102] I agree with the submissions of the Defendant that the incarceration of the Plaintiffs from 22 August 2006 until 5 May 2016 and 14 June 2018 respectively was as a consequence of a judicial act in terms of which the Plaintiffs were sentenced after having been convicted by the Limpopo High Court, Thohoyandou and that the Defendant is accordingly not liable towards the Plaintiffs for damages arising out of their incarceration pursuant to the Plaintiffs having been convicted and sentenced.

[103] The incarceration was not a consequence of the conduct of the Defendant. The Defendant was performing its legislative functions of undertaken prosecutions in the face of prima facie evidence against the Plaintiffs.

[104] There is nothing unlawful which was committed by the Defendant that resulted in the incarceration of the Plaintiffs. In casu, the Plaintiff alleges that post appearance detention was as a result of the malicious prosecution by the Defendant. Once the prosecution

is found not to be malicious ipso facto it is the end of the matter. There are no allegations that the detention on its own irrespective of the malicious prosecution was unlawful and no evidence was tendered for the determination of the lawfulness of the detention on its own. This is understandable because a determination of the lawfulness of the detention will require an examination of the conduct of the prosecutor and the presiding officer during the bail proceedings.

[105] The Defendants, however, submitted that the detention post bail appearance is a judicial act. As pointed out above, it is not only that. A party can still challenge his or her incarceration based on the conduct or either the prosecutor or police during the bail proceedings which resulted in the further incarceration post bail appearance.

[106] In the present matter, there is no conduct which rendered the further incarceration of the Plaintiffs unlawful. The claim of unlawful detention stands to be dismissed. In my view there are no reasons why costs should not follow the suit.

[107] There is evidence suggesting that the NDPP acted malice and I have found absolutely none.

[108] Plaintiffs have failed to establish the existence of the facta probanda for a claim based on malicious prosecution and wrongful detention.

[109] In the result, I grant the following order:

a. The claims of the First and Second Plaintiffs are dismissed.

b. The First and Second Plaintiffs shall also pay the cost of the Defendant jointly and severally, one paying the other to be absolved.

Acting Judge of the High Court of South Africa

Limpopo Local Division, Thohoyandou

APPEARANCES Counsel for Plaintiff : Adv M Mphse SC : Adv B Madavha Instructed by : Sigwavhulimu Attorneys Counsel for Defendants : Adv TWG Bester SC : Adv M Tjiana Instructed by : The State Attorney

[1] R v Becker 1929 AD 167 at 177.

[2] S v Molimi 2008 (2) SACR 76 (CC).

[3] S v Ndhlovu para 22.

[4] S v Litako 2014 (2) SACR 431 (SCA).

[5] S v Ndhlovu 2002 (2) SACR 325 (SCA).

[6] Law of Evidence Amendment Act No. 45 of 1988.

[7] S v Litako para 71.

[8] S v Litako para 52.

[9] 2006 (2) SACR 394 (SCA).

[10] S v Ndhlovu trial court para 48 - 49.

[11] S v Ndhlovu 2002 (2) SACR 325 (SCA).

[12] 2006 (2) SACR 394 (SCA).

[13] S v Litako para 26.

[14] 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).

[15] 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)

[16] 2007 (1) All SA 375.

[17] 1993 (1) SA 12 (C) at 15 F.

[18] 2001 (2) SACR 703 (SCA)

[19] Unreported Case No. (27525/14) [2022] ZAGPJHC 432 (28 June 2022) at para [32].

[20] (CCT 95/18) [2019] ZACC 32; 2019 (12) BCLR 1425 (CC); 2020 (1) SACR 1 (CC); 2021 (4) SA 585 (CC) (22 August 2019).

[21] Oppelt v Head: Health, Department of Health, Western Cape [2015] ZACC 33; 2016 (1) SA 325 (CC); 2015 (12) BCLR 1471 (CC) at para 34 and Loubser et al The Law of Delict in South Africa 2 ed (Oxford University Press Southern Africa (Pty) Ltd, Cape Town 2012) at 21.

[22] As the High Court held in Thandani v Minister of Law and Order 1991 (1) SA 702 (E) at 707B: “[T]he liberty of the individual is one of the fundamental rights of a man in a free society which should be jealously guarded at all times and there is a duty on our courts to preserve this right against infringement”.

[22] As the High Court held in Thandani v Minister of Law and Order 1991 (1) SA 702 (E) at 707B:

“[T]he liberty of the individual is one of the fundamental rights of a man in a free society which should be jealously guarded at all times and there is a duty on our courts to preserve this right against infringement”.

[23] Loubser above n 10 at 27.

[24] 2021 (7) BCLR 698 (CC).

[25] Lee v Minister for Correctional Services [2012] ZACC 30; 2013 (2) SA 144 (CC); 2013 (2) BCLR 129 (CC) at para 38; Premier of the Western Cape Province v Loots [2011] ZASCA 32; 2011 JDR 0250 (SCA) (Loots) at paras 16-7; and International Shipping Co (Pty) Ltd v Bentley [1989] ZASCA 138; 1990 (1) SA 680 (A) (Bentley) at 700E-I.

[26] Minister of Police v Skosana 1977 (1) SA 31 (A); [1977] 1 All SA 219 (A) at 34F-G: “Causation in the law of delict gives rise to two rather distinct problems. The first is a factual one and relates to the question as to whether the negligent act or omission in question caused or materially contributed to the harm giving rise to the claim. If it did not, then no legal liability can arise and cadit quaestio (the question falls). If it did, then the second problem becomes relevant, viz. whether the negligent act or omission is linked to the harm sufficiently closely or directly for legal liability to ensue or whether, as it is said, the harm is too remote. This is basically a juridical problem in which considerations of legal policy may play a part.”

[26] Minister of Police v Skosana 1977 (1) SA 31 (A); [1977] 1 All SA 219 (A) at 34F-G:

“Causation in the law of delict gives rise to two rather distinct problems. The first is a factual one and relates to the question as to whether the negligent act or omission in question caused or materially contributed to the harm giving rise to the claim. If it did not, then no legal liability can arise and cadit quaestio (the question falls). If it did, then the second problem becomes relevant, viz. whether the negligent act or omission is linked to the harm sufficiently closely or directly for legal liability to ensue or whether, as it is said, the harm is too remote. This is basically a juridical problem in which considerations of legal policy may play a part.”

[27] In Lee above n 23 at paras 41 and 74, the majority of this Court held that in appropriate cases, the “but-for” test should be relaxed.

[28] Minister of Safety and Security v Van Duivenboden [2002] ZASCA 79; 2002 (6) SA 431 (SCA) at para 25.

[29] mCubed International (Pty) Ltd v Singer N.O. [2009] ZASCA 6; 2009 (4) SA 471 (SCA) (mCubed) at para 22; Lee above n 23 at para 38; and Bentley above n 23 at 700H.

[30] Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd [2008] ZASCA 134; 2009 (2) SA 150 (SCA) (Fourway Haulage SA) at paras 30-2 and Standard Chartered Bank of Canada v Nedperm Bank Ltd [1994] ZASCA 146; 1994 (4) SA 747 (A) at 764I-J.

[31] Country Cloud Trading CC v MEC: Department of Infrastructure Development [2013] ZASCA 161; 2014 (2) SA 214 (SCA) at para 27. See the explanation advanced by Nkabinde J in Lee above n 23 at para 38: “The point of departure is to have clarity on what causation is. This element of liability gives rise to two distinct enquiries. The first is a factual enquiry into whether the negligent act or omission caused the harm giving rise to the claim. If it did not, then that is the end of the matter. If it did, the second enquiry, a juridical problem, arises. The question is then whether the negligent act or omission is linked to the harm sufficiently closely or directly for legal liability to ensue or whether the harm is too remote. This is termed legal causation.”

[32] See Para [30] De Klerk; Minister of Safety and Security v Scott [2014] ZASCA 84; 2014 (6) SA 1 (SCA) at para 37.

[33] Para [26]

[34] Fourway Haulage SA above n 28 at para 31; See also Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan Municipality [2017] ZASCA 77; 2018 (1) SA 391 (SCA) at para 45; and South African Hang and Paragliding Association v Bewick [2015] ZASCA 34; 2015 (3) SA 449 (SCA) at para 37.

[35] 1990 (1) SA 32 (A).

[36] (CCT03/15) [2015] ZACC 36; 2016 (2) BCLR 204 (CC); 2016 (3) SA 528 (CC) (26 November 2015)

[37] Mashongwa above n 36 at para 68.

[38] 1996 (1) SACR 314 (A),

[39] Isaacs at 321G.

[40] 2015 (1) SACR 597 (SCA).

[41] Tyokwana above.

[42] Fourie AJA, writing for the Court in Tyokwana id explained at para 38: “[I]t was held that the fact, that the person may have been arrested unlawfully, does not preclude him or her from being remanded

lawfully in terms of section 50(1) of the Criminal Procedure Act. However, what was not held in Isaacs is that an arrested person’s continued detention, by virtue of an order of court remanding him or her in custody in terms of section 50(1) of the Criminal Procedure Act, will automatically render such continued detention lawful. This was not an issue that the court in Isaacs was called upon to adjudicate.”

[42] Fourie AJA, writing for the Court in Tyokwana id explained at para 38:

“[I]t was held that the fact, that the person may have been arrested unlawfully, does not preclude him or her from being remanded

lawfully in terms of section 50(1) of the Criminal Procedure Act. However, what was not held in Isaacs is that an arrested person’s continued detention, by virtue of an order of court remanding him or her in custody in terms of section 50(1) of the Criminal Procedure Act, will automatically render such continued detention lawful. This was not an issue that the court in Isaacs was called upon to adjudicate.”

[43] 2015 (1) SACR 597 (SCA).

[44] At para 38.

[45] Woji above n 60 at paras 25-6.

[46] Id at paras 26-7.

[47] 2015 (1) SACR 409 (SCA).

[48] Id.

[49] (366/2021) [2022] ZASCA 57 (22 April 2022)

[50] Supra.

[51] See section 60(11)(a) of the Criminal Procedure Act No. 32 of 1944

[52] (CCT 95/18) [2019] ZACC 32; 2019 (12) BCLR 1425 (CC); 2020 (1) SACR 1 (CC); 2021 (4) SA 585 (CC) (22 August 2019) citing with approval Zeaaland v Minister for Justice and Constitutional Development [2008] ZACC 3; 2008 (4) SA 458 (CC); 2008 (6) BCLR 601 (CC) at para 22.

[53] Para [16].

[54] Para [20].

[55] See Relyant Trading (Pty) Ltd v Shongwe& another [2006] ZASCA 162 (2007) 1 ALL SA 375 (SCA at para.5.

[56] 1955 (1) SA 129 (AD).

[57] State v Lubaxa 2001 (2) SACR 703 (SCA) para.19.

[58] (131/07) [2008] ZASCA 43; [2008] 3 All SA 47 (SCA) ; 2009 (2) SACR 585 (SCA) (31 March 2008).