THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:   380/2008

PETRUS JOHANNES RUDOLPH                                First Appellant

WENTZEL LAUBSCHER                                          Second Appellant

MARTHINUS ANDRIES VAN DER WALT              Third Appellant

and

THE MINISTER OF SAFETY AND
SECURITY                                                                    First Respondent

THE MINISTER OF CORRECTIONAL
SERVICES                                                                 Second Respondent

Neutral citation: Rudolph
v
Minister
of
Safety
and
Security
(380/2008)[2009] ZASCA 39 (31 March 2009)

Coram:
Farlam, Mthiyane, Brand, Lewis and Van Heerden
JJA

Heard:
9 March 2009
Delivered:
31 March 2009

Summary:
Claim for damages ─ Arrests and detention of
appellants unlawful as no offence committed in the
presence of peace officer ─ Prosecution of
appellants malicious ─ Requirement of ‘malice’
considered in the context of animus injuriandi  held
to have been met ─ Substantial damages awarded
on appeal.

___________________________________________________________

ORDER

On appeal from: Transvaal Provincial Division (Mokgoatlheng AJ
sitting as court of first instance)

The appeal succeeds with costs, the costs to be paid by the first
respondent. The order of the court a quo is set aside and replaced
with the following order:
‘1.
Judgment is granted in favour of the first plaintiff as follows:
(a)
(i)
against the first and second defendants jointly and
severally, the one paying the other to be absolved, for
payment of damages in the sum of R100 000 in respect of
claim 1;
(ii)
against the first defendant for payment of damages in
the sum of R50 000 in respect of claim 2;
(iii)
against the first defendant for payment of damages in
the sum of R50 000 in respect of claim 3.
(b)
Interest on each of the above amounts will run at the
prescribed rate a tempore morae (from 5 April 2007) to date
of payment.
(c)
The first defendant is ordered to pay the costs of suit.
2.
Judgment is granted in favour of the second plaintiff as follows:
(a)
(i)
against the first and second defendants jointly and
severally, the one paying the other to be absolved, for
payment of damages in the sum of R100 000 in respect of
claim 1;
(ii)
against the first defendant for payment of damages in
the sum of R50 000 in respect of claim 2.

(b)
Interest on each of the above amounts will run at the
prescribed rate a tempore morae (from 5 April 2007) to date of
payment.
(c)
The first defendant is ordered to pay the costs of suit.’
___________________________________________________________

JUDGMENT

MTHIYANE and VAN HEERDEN JJA (FARLAM, BRAND and
LEWIS JJA concurring):

[1] This is an appeal from a judgment of the Pretoria High Court
(Mokgoatlheng AJ) dismissing with costs three claims instituted by the
appellants against the respondents, in which they claimed damages
arising out of their alleged unlawful arrest, detention and malicious
prosecution. The appeal is with the leave of the trial judge.

[2] The first claim arises out of the unlawful arrest of the first
appellant on 18 July 2003 near Capital Park in Pretoria and the
subsequent unlawful detention of both appellants. Both were taken to
Pretoria Moot Police Station (via Wonderboompoort Police Station) and
detained in a police cell until 21 July 2003. On that day they appeared
before a magistrate where they were granted bail of R500 each. Although
a member of the first appellant’s group, the second appellant was
apparently not arrested, as will be discussed in more detail below.

[3] When the appellants tendered payment of bail at the magistrate’s
court on the afternoon of Monday 21 July 2003, the prisoner’s friend was
not available to receive bail money. The appellants were then removed to
the Pretoria Central Prison. At the prison the appellants again tendered
payment of bail in vain; there, too, nobody was prepared to receive

payment of it.

[4] The appellants remained in custody until the following day, viz
Tuesday 22 July 2003, having been arrested on the previous Friday.
Although their bail was paid at 08h30, they were only released at 12h00.
They were therefore detained from about 17h00 on the Friday until
approximately midday on the Tuesday.

[5] After several appearances in the magistrate’s court, the charge
against the appellants was withdrawn by the State in January 2004.

[6] The second claim, for damages for malicious prosecution, is based
on the fact that the members of the South African Police Service (SAPS)
brought false charges against the appellants, in that the former had neither
evidence, nor reason to believe, that the appellants had committed any
offence; that they acted with ‘malice’, and that the charges were
subsequently withdrawn.

[7] The third claim arises out of the first appellant’s arrest by Captain
Ngobeni near Rayton on 26 July 2003, on a charge of sedition. The first
appellant was thereafter taken (via Cullinan Police Station) to Mamelodi
Police Station, where he was detained in a police cell. On 28 July 2003 he
appeared before a magistrate on a charge of contravening the provisions
of an administrator’s notice in respect of the unauthorised display of
placards or flags next to a public street.

[8] The arrests and detention of the appellants are not in dispute. What
is disputed is the lawfulness or otherwise of these arrests and detention.
In argument, counsel for the first respondent contended that, in relation to

the arrest of 18 July 2003 and subsequent detention, an offence was
committed in the presence of one Captain Bekker. A similar argument
was advanced in respect of the arrest and detention of the first appellant
by Captain Ngobeni on 26 July 2003.

[9] As to the claim for damages arising out of the alleged malicious
prosecution of the appellants, the sole issue is whether the appellants
proved that members of SAPS acted with ‘malice’.

[10] Captain Bekker gave evidence for the first respondent in relation to
the events of 18 July 2003. She testified that, after receiving a report, she
went to the Low Water Bridge in Capital Park where she found eight
persons: four adults and four children. The first and second appellants,
the first appellant’s wife and Mr M A van der Walt (nominally the third
appellant, who did not pursue his appeal before us) formed the adult
component of the group and the rest were children. Upon arrival she
informed them that their assembly was an unlawful gathering as they did
not have the requisite permission to hold it. The first appellant enquired
who she was and, after she had identified herself, he gave her his full
names, his ID number and the name of the political organisation of which
he formed part. Captain Bekker then asked if they had permission to hold
the gathering and when, none was produced, she asked them to disperse.
The first respondent refused and maintained that they were in law entitled
to be there.

[11] Captain Bekker then gave the group 15 minutes to disperse. The
deadline came and went and Captain Bekker was compelled to extend it
by a further 10 minutes. The extended time did not have the desired effect
and, an hour or so after the deadline, the first appellant and his group

were still on the scene.

[12] After consulting with a Captain Sithole and a SAPS legal adviser,
one Mr Nel, Captain Bekker arrested the first appellant for contravening
the provisions of the Regulation of Gatherings Act 205 of 1993 (‘the
Gatherings Act’). As already indicated, the second appellant was also told
to accompany the police to the police station, but it would appear that he
was not actually arrested. He testified that he had not been arrested, but
had accompanied the police voluntarily. Captain Bekker also said that she
only arrested the first appellant.

[13] The court below accepted that the appellants had held an unlawful
gathering in contravention of the provisions of the Gatherings Act in that
they did not have the required permission. The trial judge appears to have
accepted also that the arrest without a warrant was effected in terms of
s 40(1)(a) of the Criminal Procedure Act 51 of 1977.1 In addition, the
learned judge held that Captain Bekker was ‘not unreasonable in
entertaining a suspicion that a crime listed in Schedule 1 of the Criminal
Procedure Act was being committed’. This apparent reliance on
s 40(1)(b) of the Criminal Procedure Act2 was clearly incorrect, in that a
contravention of the Gathering Act is not one of the offences listed in
Schedule 1.

[14] The onus of justifying  the arrests and detention of the appellants
lies upon the first respondent. See Zealand v Minister of Justice and

1 Section 40(1)(a) reads as follows:
‘(1) A peace officer may without warrant arrest any person ─
(a) who commits or attempts to commit any offence in his presence’.
2 Section 40(1)(b) reads as follows:
‘(1) A peace officer may without warrant arrest any person ─

. . .
(b) whom he reasonably suspects of having committed an offence referred to in Schedule1’.

Constitutional Development.3 In concluding that the appellants had
committed an offence, the court below clearly erred. The first appellant
and his group were only eight in number and the Gatherings Act
proscribes an assembly of more than 15 persons in a public place without
permission. The first appellant and his small group did not constitute a
‘gathering’ within the meaning of that Act. In section 1, a ‘gathering’ is
defined as follows:
‘“gathering” means any assembly, concourse or procession of more than 15 persons
in or on any public road as defined in the Road Traffic Act, 1989 (Act 29 of 1989), or
any other public place or premises wholly or partly open to the air . . .’.
There was therefore no evidence of a ‘gathering’, no offence had been
committed in the presence of Captain Bekker, and the first respondent
accordingly failed to discharge the onus of proving that the arrest of the
first appellant on 18 July 2003 without a warrant and the subsequent
detention of both appellants in a police cell at the Pretoria Moot Police
Station were justified.

[15] As regards the detention of the appellants at the Pretoria Central
Prison between the time of their arrival there in the late afternoon of
Monday 21 July (at which time bail was tendered and should have been
accepted by the prison authorities), and the release of the appellants on
bail the following day at about midday, counsel for the respondents did
not seriously contend that this period of detention could be justified. In
our view, therefore, the second respondent must be held liable for this
period of unlawful detention. Counsel for the appellants submitted that,
should this appeal succeed, both respondents should be held liable for the
damages in respect of claim 1, but that the first respondent should be
ordered to pay all the costs. This submission was not disputed by counsel

3 2008 (2) SACR 1 (CC) paras 24 and 25.

for the respondents and appears to be a practical one.

[16] We will now deal with the appellants’ claim for damages for
malicious prosecution (claim 2). The requirements for successful claims
for malicious prosecution have most recently been discussed in Minister
of Justice & Constitutional Development v Moleko4 as follows:
‘In order to succeed (on the merits) with a claim for malicious prosecution, a claimant
must allege and prove ─
(a)
that the defendants set the law in motion (instigated or instituted the
proceedings);
(b)
that the defendants acted without reasonable and probable cause;
(c)
that the defendants acted with “malice” (or animo injuriandi); and
(d)
that the prosecution has failed.’
As already indicated, in so far as this claim is concerned, requirements (a)
(b) and (d) above are not disputed by the respondents.

[17] Counsel for the respondent was content to pin his colours to the
mast solely in respect of requirement (c), arguing in this regard that it had
not been established that Captain Bekker had acted with malice. It was
submitted that, because Captain Bekker had sought legal advice before
effecting an arrest, malicious prosecution had not been established.

[18] The requirement of ‘malice’ has been the subject of discussion in a
number of cases in this court. The approach now adopted by this court is
that, although the expression ‘malice’ is used, the claimant’s remedy in a
claim for malicious prosecution lies under the actio injuriarum and that
what has to be proved in this regard is animus injuriandi. See Moaki v
Reckitt & Colman (Africa) Ltd & another5 and Prinsloo & another v

4 [2008] 3 All SA 47 (SCA) para 8.
5 1968 (3) SA 98 (A) at 103G-104E.

Newman.6 By way of further elaboration in Moleko it was said:
‘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). Negligence on the part of
the defendant (or, I would say, even gross negligence) will not suffice.’ (Para 64).

[19] The respondent’s argument as set out in para 14 above is
misconceived. The ‘malice’ must be that of the person responsible for
initiating the prosecution against the appellants. In this case, the
appellants were formally charged ─ with contravening the Gatherings Act
─ on Saturday 19 July 2003 by members of the SAPS at the Pretoria
Moot Police Station. It would appear that this is the stage at which the
proceedings were initiated. Although Captain Bekker’s police statement
was made only on 18 August 2003, it is safe to assume that the member
of SAPS who charged the appellants did so on the basis of the
information furnished to him or her by the arresting officer, viz that there
were only eight persons (four adults and four children) gathered at the
scene of the supposed ‘illegal gathering’. By no stretch of the imagination
could this ‘demonstration’ be regarded as a ‘gathering’ within the
meaning of the Gatherings Act.

[20] In this case, there can be no question that the person who charged
the appellants was aware of the fact that, by so doing, the appellants
would in all probability be ‘injured’ and their dignity (‘comprehending
also . . . [their] good name and privacy’)7 in all probability negatively
affected.8 Knowing that the ‘gathering’ in question comprised only eight

6 1975 (1) SA 481 (A) at 492A-B.
7 Relyant Trading (Pty) Ltd v Shongwe & another (2007) 1 All SA 375 (SCA) para 5.
8 See also the Moleko case para 65.

persons, the police member concerned must at the very least have
foreseen the possibility that no offence in terms of the Gatherings Act had
been committed and that, in charging the appellants with a contravention
of that Act, he or she was acting wrongfully. He or she nevertheless
continued so to act, reckless as to the possible consequences of his or her
conduct. In our view, he or she thus acted animo injuriandi.9 This being
so, the appellants proved the requirements of malicious prosecution and
their claim in this regard should have succeeded.

[21] We turn to the third claim based on the unlawful arrest of the first
appellant by Captain Ngobeni on 26 July 2003 and his subsequent
unlawful detention. It is not disputed that the first appellant was arrested
for sedition on 26 July 2003. There was, however, simply no evidence
that the first appellant had committed this offence.

[22] Captain Ngobeni’s evidence was that, upon his arrival at the scene,
he found more than 100 people. They were carrying banners with the
words ‘Vryheid vir die Boerevolk’, ‘May 1902 women and children
killed’, ‘Stem vir die doodstraf’, ‘Mbeki flies high while hungry children
die’ and ‘Democratic right to Freedom of speech, no to police state’. The
sentiments displayed on the banners do not by themselves suggest that the
first appellant was advocating unlawful insurrection. Captain Ngobeni’s
explanation as to what the banners meant showed a complete lack of
insight and can hardly be accepted as having founded a reasonable belief
that the offence of sedition was being committed.

[23] Another shortcoming in Captain Ngobeni’s evidence is the extent
to which it is contradicted by his police statement. In that statement he

9 See the passage from the Moleko case para 64, quoted in para 17 above.

did not mention that upon his arrival he found 100 persons on the scene.
On the contrary, he said that he noticed ‘two males standing next to the
banners and flags’ and that, when he told them to ‘stop and pack their
belongings’, they ‘refused by sitting down on their chairs while some
other members of the public [came] and signed some documents on their
tables’. This version tied up with the evidence given by the first appellant
and is at variance with Captain Ngobeni’s testimony during the trial.

[24] Captain Ngobeni’s evidence was that the purpose of the gathering
was to overthrow the government. On the contrary, the established facts
indicate that what the appellant was involved in was no more than a
peaceful protest. He stood there collecting donations from persons who
were supportive of his beliefs and policies. The petition that he was
asking people to sign stated that the person signing supported ‘die Orde
Boerevolk se poging om deur middel van onderhandeling ons vryheid te
verkry’ and further that, ‘in die proses van onderhandeling, ook in
gesprek getree sal word met ander organisasies waarvan die huidige Suid-
Afrikaanse regering deel is of deel kan uitmaak’ (emphasis added in both
instances). There was nothing seditious about his conduct or utterances. It
is probable that Captain Ngobeni was annoyed by his conduct or by the
tone of the placards, but such is the democratic society in which we find
ourselves. It behoves us to be tolerant even of views which may seem
unpalatable.

[25] The court below found that Captain Ngobeni was justified in
effecting the arrest without a warrant. It bears noting that the offence of
sedition is indeed one of the offences listed in Schedule 1 to the Criminal
Procedure Act. It is not, however, at all clear whether the trial court
applied s 40(1)(a) or s 40(1)(b) of the Act (or both) in coming to the

conclusion that the arrest was lawful. As no offence of sedition was
committed, s 40(1)(a) is clearly not applicable. Moreover, as it can hardly
be said that Captain Ngobeni reasonably suspected the first appellant of
committing sedition, the arrest also cannot be justified under s 40(1)(b). It
follows that the arrest was unlawful and that the trial court was wrong in
concluding otherwise.

[26] As regards the quantum of damages, the first and second appellants
claimed payment of R100 000 each in respect of claim 1 and R50 000
each in respect of claim 2. The first appellant also claimed R100 000 in
respect of claim 3. Counsel for the respondent did not contend that the
damages claimed were excessive. It needs to be pointed out at the outset
that the award of damages is by no means an easy task. The ever-
changing value of money makes reference to previous decisions not
altogether helpful. As was stated in Minister of Safety and Security v
Seymour,10 in the assessment of general damages the facts of the
particular case must be looked at as a whole. There the court dealt with
the case of a 63-year-old man who had been unlawfully arrested and
detained for five days. He was awarded damages in the amount of R500
000 by the trial court, but the award was reduced to R90 000 on appeal.
This court considered that the plaintiff had had free access to his family
and doctor throughout his detention at the police station and that he had
suffered no degradation beyond that inherent in being arrested and
detained. It also considered that, after the first 24 hours, the plaintiff had
spent the remainder of his detention in a hospital bed at a clinic and that,
although the experience had been traumatic and distressing, it warranted
no further medical attention after his release.

10 2006 (6) SA 320 (SCA) para 17.

[27] Although the imprisonment of the appellants in the present matter
was somewhat shorter that that in the Seymour case (viz for four nights
and three days), the humiliating conditions to which they were subjected
makes their case more serious than that of the plaintiff in Seymour. The
appellants were arrested and detained under extremely unhygienic
conditions in the Pretoria Moot police station. The cell in which they
were held was not cleaned for the duration of their detention. The
blankets they were given were dirty and insect-ridden and their cell was
infested with cockroaches. The shower was broken and they were unable
to wash. They had no access to drinking water. Throughout their
detention the first appellant, who suffers from diabetes, was without his
medication. They were not allowe to receive any visitors, not even family
members. The first appellant later wrote a letter to the Commissioner of
Police complaining about the conditions of their detention. As regards the
last night of their detention, viz the night spent in the Pretoria Central
Prison, there is no evidence regarding the conditions under which they
were detained. Both appellants testified, however, that their reputations
had been negatively affected by the detention ─ as the first appellant put
it, ‘in our country a jail bird is a jail bird’ ─ and the first appellant also
stated that his illness had been aggravated by his period of detention.

[28] After his arrest on 26 July by Captain Ngobeni, the first appellant
was taken to Mamelodi police station and detained there for two nights
and one full day (from about 18h00 on Saturday 26 July 2003 to about
08h00 on Monday 28 July 2003). The conditions were little better than at
the Pretoria Moot Police Station. He was made to sleep on a small coarse
mattress in a freezing cell and was not even provided with a blanket on
the first night. It was only on the Sunday that his wife was allowed to
visit him and bring him his medication and a sleeping bag.

[29] Counsel for the respondent advanced no argument in respect of the
amounts of damages claimed. However, in our view, there can be no
doubt that the indignity to which the appellants were subjected merits
substantial damages. For the arrest and detention of the appellants in
respect of the first claim, we consider that an award of R100 000 each (as
claimed) would be appropriate. Similarly, in respect of claim 2 (malicious
prosecution), the amount of R50 000 damages claimed by each appellant
is appropriate. As regards claim 3 (the second unlawful arrest and
detention of the first appellant), although the conditions of detention were
most unsatisfactory, it would appear that they were not as bad as in
respect of the first claim. Moreover, the period of detention was
considerably shorter. An appropriate award in respect of the third claim is
R50 000.

[30] In the result the appeal succeeds with costs, the costs to be paid by
the first respondent. The order of the court below is set aside and replaced
with the following order:
‘1.
Judgment is granted in favour of the first plaintiff as follows:
(a)
(i)
against the first and second defendants jointly and
severally, the one paying the other to be absolved, for
payment of damages in the sum of R100 000 in respect of
claim 1;
(ii)
against the first defendant for payment of damages in
the sum of R50 000 in respect of claim 2;
(iii)
against the first defendant for payment of damages in
the sum of R50 000 in respect of claim 3.
(b)
Interest on each of the above amounts will run at the
prescribed rate a tempore morae (from 5 April 2007) to date

of payment.
(c)
The first defendant is ordered to pay the costs of suit.
2.
Judgment is granted in favour of the second plaintiff as follows:
(a)
(i)
against the first and second defendants jointly and
severally, the one paying the other to be absolved, for
payment of damages in the sum of R100 000 in respect of
claim 1;
(ii)
against the first defendant for payment of damages in
the sum of R50 000 in respect of claim 2.
(b)
Interest on each of the above amounts will run at the
prescribed `rate a tempore morae (from 5 April 2007) to date of
payment.
(c)
The first defendant is ordered to pay the costs of suit.’

____________________________

KK MTHIYANE
JUDGE OF APPEAL

____________________________

BJ VAN HEERDEN

JUDGE OF APPEAL

Appearances:

For Appellant:
G C Muller

M B Matlejoane

Instructed by:

Coetzer Attorneys Pretoria

Azar & Havenga Bloemfontein

For Respondent:
B R Tokota  SC

K Mokotedi

Instructed by:

The State Attorney Pretoria

The State Attorney Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

31 March 2009

STATUS:
Immediate

Rudolph v Minister of Safety and Security (380/2008)[2009] ZASCA 39 (31
March 2009)

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal

The SCA today upheld an appeal by Mr Petrus Johannes Rudolph and Mr Wentzel
Laubscher against the dismissal of their claims by the Pretoria High Court for
damages against the Minister of Safety and Security and The Minister of Correctional
Services.

Mr Rudolph and Laubscher had claimed for damages for alleged unlawful arrests,
detention and malicious prosecution arising out of their arrest and detention on 18
July 2003.

Mr Rudolph also claimed for the unlawful arrest and detention on 26 July 2004.

The SCA found that the High Court erred in rejecting their claims and awarded each
substantial damages amounting to more than R100 000.