THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1393/2018

In the matter between:
J E MAHLANGU
FIRST APPELLANT
I T MAILELA NO
SECOND APPELLANT
and
MINISTER OF POLICE
RESPONDENT

Neutral citation: Mahlangu & Another v Minister of Police (1393/2018)
[2020] ZASCA 44 (21 April 2020)
Coram:
PETSE DP, CACHALIA and VAN DER MERWE JJA and
KOEN and DOLAMO AJJA
Heard:
18 November 2019
Delivered: This judgment was handed down electronically by circulation to
the parties’ legal representatives by email, publication on the
Supreme Court of Appeal website and release to SAFLII. The
date and time for hand-down is deemed to be 10h00 on 21 April
2020.

Summary: Delict – judicial detention – damages – inadmissible confession
induced by assault extracted by police from accused – whether police liable
for the appellants’ incarceration subsequent to first court appearance.

_________________________________________________________________

ORDER
________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Kollapen J,
Molopa-Sethosa and Ranchod JJ concurring) sitting as a full court:

1 The appeal is upheld with costs, such costs to include the costs consequent
upon the employment of two counsel where employed.
2 The order of the full court is set aside and substituted with the following:
‘(a)
The appeal succeeds with costs, including the costs of two
counsel where employed;
(b)
The order of the trial court is set aside and replaced with the
following:
“The first defendant is ordered to pay:
(i)
The amount of R190 000 to the first plaintiff;
(ii)
The amount of R150 000 to the second plaintiff;
(iii)  Costs of suit, including the costs of two counsel where
employed.”’
_________________________________________________________________

JUDGMENT
________________________________________________________
Koen AJA (Cachalia JA and Dolamo AJA concurring)

[1] The issue in this appeal is whether the respondent, the Minister of Police
(the Minister), should be held liable for damages to Mr Johannes Eugen
Mahlangu (Mr Mahlangu) and the second appellant, the representative of the

deceased estate of Mr Phanie Johannes Mtsweni (Mr Mtsweni),1 for the period
that Mr Mahlangu and Mr Mtsweni (the plaintiffs) were detained pursuant to
various court orders, from the time of their first appearance in court after their
arrest, until the charges against them were withdrawn and they were released.
No relief2 is sought in this appeal against Inspector Sikheto Emson Mthombeni
(Lieutenant Mthombeni),3 who arrested the plaintiffs.

Background
[2] The plaintiffs were arrested without a warrant on four counts of murder
by Lieutenant Mthombeni on Sunday 29 May 2005. Mr Mahlangu was
arrested at around 10h00 and Mr Mtsweni around 16h30. They were brought
before a magistrate’s court, for their first court appearance, on the morning of
31 May 2005. Their rights to apply for bail were explained and the magistrate
recorded that ‘both wish to apply for bail’. The magistrate recorded that the
prosecutor requested a remand for further investigation and for the bail hearing
and that ‘the state intended opposing bail’. They were accordingly remanded
in custody until 14 June 2005.

[3] Subsequent appearances before the magistrate’s court on numerous
remand dates4 resulted in their further detention. A third accused, Mr
Dumisani Dingani Makhubela, and later two further accused, Mr Buti
Johannes van Rooyen and Mr Penuel Mkhonto, and an additional charge of
rape, were added. The plaintiffs remained in custody until 10 February 2006,

1 Mr Mtsweni died before the trial was finalized. He was substituted by the second appellant, the representative
of his estate in terms of s 18(3) of the Administration of Estates Act 66 of 1965.
2 See footnote 11 below.
3 At the time he testified before the trial court, Inspector Mthombeni had been promoted to the rank of
lieutenant.
4 A perusal of the magistrate’s notes reveal that the plaintiffs were detained pursuant to 13 separate court
orders, granted on 31 May 2005, 14 June 2005, 21 June 2005, 15 July 2005, 10 August 2005, 30 August 2005,
27 September 2005, 19 October 2005, 7 November 2005, 24 November 2005, 8 December 2005, 10 January
2006, and 7 February 2006 until they were released on 10 February 2006.

when they were released after the Director of Public Prosecutions had decided
to withdraw the charges against them.5

The proceedings before the trial court
[4] Arising from their arrest, subsequent detention until their first
appearance in court (the police detention), an alleged assault by the police on
Mr Mahlangu, and their detention in terms of various court orders from the
time of their first appearance in court until their release (the judicial detention),
the plaintiffs claimed damages for infringement of their ‘dignitas, fama, bodily
integrity and their right to freedom.’ They each claimed R85 000 for loss of
income and earning capacity and R2 700 000 in respect of general damages.6
The general damages were alleged to be in respect of ‘severe emotional and
psychological trauma, contumelia, (and) the loss of enjoyment of life’.

[5] Lieutenant Mthombeni testified that Mr Mahlangu told him, after his
arrest, that ‘he knows about the murder of these people’ and that ‘during the
murder of these people, he was not alone, but was with Mr Mtsweni’. That
communication caused him to arrest Mr Mtsweni. Mr Mahlangu testified that
he was assaulted by Lieutenant Mthombeni and other unidentified policemen,
which, he said, resulted in him doing a pointing out to Senior Superintendent
DS Mabunda at 16h20 on 29 May 2005,7 and deposing to a confession before
Captain Mokgopodi Justice Mogayane (Captain Mogayane) the next morning.
In this confession he admitted his role in the murders and also implicated
Mr Mtsweni. Lieutenant Mthombeni disputed the allegations of assault, but

5 Mr Makhubela and Mr van Rooyen were subsequently convicted on the charges as they were linked to the
crime scene by DNA evidence.
6 In their original particulars of claim each claimed R585 000 in respect of unlawful and wrongful arrest,
R 1 700 000 in respect of unlawful and wrongful detention and R500 000 in respect of the assault.
7 These details appear from the documents in the police docket which formed part of the trial bundle of
documents. At the pre-trial conference it was agreed that the documents in the trial bundle are what they
purport to be, without admitting the contents thereof.

confirmed that after Captain Mogayane recorded the confession, he took
possession thereof. When the plaintiffs appeared in court at their first
appearance, the prosecutor was given the entire docket with all the statements,
including the confession. Lieutenant Mthombeni confirmed that ‘[he] knew
that the state prosecutor or whoever was going to deal with this matter at the
Department of Justice would rely on this statement for the continued detention
of [the plaintiffs]’. He was asked by the court whether it was correct that ‘apart
from the [confession] that [Mr Mahlangu] had made there was no other
evidence which incriminated him’, to which he replied, ‘No, except a
statement . . . that I had at my disposal that (Mr Mahlangu) had a relationship
with the female deceased and the possibility was that it was him’.

[6] The action for the recovery of the non-patrimonial damages claimed by
the appellants for the infringement of the plaintiffs’ ‘dignitas, fama, bodily
integrity and (the) right to freedom’, is the actio injuriarum.8 In respect of an
unlawful arrest, the actio iniuriarum is subject to special features, namely that
liability for wrongful arrest is strict. Neither fault nor awareness of the
wrongfulness of the arrestor’s conduct is required.9 The onus of proving that
the deprivation of liberty was not wrongful was on the police.10

[7] The trial court (Mabuse J) concluded that the information which
Lieutenant Mtombeni relied upon to justify the arrest of Mr Mahlangu ‘was
not of such a nature that he could . . . reasonably have suspected that [he] had
committed the offence.’ It also found that Mr Mahlangu’s confession was

8 There was no claim for patrimonial damages in respect of the assault.
9 L T C Harms Amler’s Precendents of Pleadings 9 ed (2018) at 53.
10 Brand v Minister of Justice and Another 1959 (4) SA 712 (A) 714; Mabona and Another v Minister of Law
and Order and Others 1988 (2) SA 654 (SE) at 656I-657A, Mhaga v Minister of Safety and Security [2001]
2 All SA 534 (Tk) at 537; Zealand v Minister for Justice and Constitutional Development [2008] ZACC 3;
2008 (2) SACR 1 (CC).

‘irregularly obtained from him without him having been warned of his rights .
. . [and] . . . because he had been tortured.’ In respect of Mr Mtsweni, the trial
court found that it was ‘common cause that [he] was arrested following the
confession made by Mr Mahlangu to the police’ (more correctly, Mr Mtsweni
was arrested based on what Mr Mahlangu told Lieutenant Mthombeni after his
arrest). It observed that the confession, and the extent to which it implicated
Mr Mtsweni, was irrelevant in determining whether the arrests of Mr
Mahlangu and Mr Mtsweni were lawful, as the confession only came into
existence after they had been arrested. The trial court thus held that the arrest
and police detention of the plaintiffs were unlawful. Following on the findings
above it awarded damages11 of R90 000 to Mr Mahlangu and R50 000 to Mr
Mtsweni, and directed the Minister to pay their legal costs on the magistrates’
court scale.

[8] No damages were awarded in respect of the claims for alleged loss of
income and earning capacity,12 nor in respect of the claim for non-patrimonial

11 The trial court granted the following order:
‘1.
Judgement is granted against the defendants (the Minister of Police was the first defendant and
Lieutenant Mthombeni was the second defendant) in favour of the first and second plaintiffs.
2.
The first defendant is hereby order to compensate the first plaintiff in the amount of R90 000.
3.
The first defendant is hereby order to compensate the second plaintiff in the amount of R50 000.
4.
The first defendant is hereby order to pay the costs of this action on a Magistrate’s Court scale.’
(Emphasis added.)
The reason for the discrepancy between para 1, and paras 2, 3 and 4 of the trial court’s judgment is not clear.
Before the full court both the Minister and Mr Mthombeni opposed the appeal. The name of Lieutenant
Mthombeni still featured in the heading to the judgment of the full court but had been omitted from the
judgment of the trial court and has been omitted from the heading of all documents in the record from the
time of the issue of the court order dismissing the appeal before the full court. He has not been cited in the
petition for leave to appeal to this court, nor in the order granted, nor in the application for leave to appeal. In
seeking that the appeal be upheld before this court, the appellants seek a substitution only of paras 2, 3 and 4
of the order of the trial court, to take account of the period of the judicial detention, and to provide that:
‘2.
The first defendant is hereby ordered to compensate the first plaintiff in the amount of R1 200 000;
3.
The first defendant is hereby ordered to compensate the second plaintiff in the amount of R650 000; and
that
4.
The defendant is ordered to pay the costs of the plaintiffs, including the costs consequent upon the
employment of two counsel.’
The respondents’ heads of argument refer only to the Minister. This appeal shall accordingly be treated as an
appeal claiming relief against the Minister only.
12 The cause of action for those damages would be the actio legis Aquiliae.

damages in respect of the plaintiffs’ judicial detention. The trial court, relying
on this court’s judgments in Isaacs v Minister van Wet en Orde13 and Minister
of Safety and Security v Sekhoto and Another,14 held that the plaintiffs’
unlawful detention came to an end once they were detained in terms of a court
order after their first appearance in court.

[9] The trial court granted the appellants leave to appeal against ‘the award
of damages’ to the full court of the Gauteng Division of the High Court,
Pretoria (the full court). The appellants did not appeal against the disallowance
of their claims for loss of income and earning capacity. There was also no
cross appeal in respect of the trial court’s award of damages, and hence the
findings that the arrests of the plaintiffs and their police detention had been
unlawful, that Mr Mahlangu had been tortured, and that the confession was
irregularly obtained.15

The proceedings before the full court
[10] The full court correctly construed the appeal as being not only against
the quantum of damages awarded for the unlawful arrests and the period of
police detention, but also the merits, insofar as it concerned the claims for
damages for the period of the plaintiffs’ judicial detention. It pointed out that
Isaacs was qualified in Minister of Safety and Security v Tyokwana,16 where
this court clarified that:
‘. . . 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 s 50(1) of the CPA, will

13 Isaacs v Minister van Wet en Orde 1996 (1) SACR 314 (A). In Abrahams v Minister of Justice and Others
1963 (4) SA 542 (C) at 545G-H the general rule was stated as, ‘. . . once there is a lawful detention, the
circumstances of the arrest and capture are irrelevant.’
14 Minister of Safety and Security v Sekhoto and Another [2010] ZASCA 141; 2011 (5) SA 367 (SCA).
15 No argument has been advanced in this appeal that these factual findings were incorrect.

16 Minister of Safety and Security v Tyokwana [2014] ZASCA 130; 2015 (1) SACR 597 (SCA) para 38.

automatically render such continued detention lawful. This was not an issue that the court
in Isaacs was called upon to adjudicate . . . ‘
Tyokwana recognised that the police could instigate and perpetuate a malicious
prosecution that ultimately results in the deprivation of freedom of an
individual.

[11] Dealing with the facts of the matter, the full court continued:
‘The view of … the appellants, was that the unlawfully obtained confession would have
had a strong and overwhelming influence on how the prosecutor would have viewed the
case before him/her as well as ultimately the Court. While there may well be some merit in
that contention, it ignores the notion that the prosecutor is to bring to bear his/her own mind
to the matter, to interrogate the docket in its entirety, and to bring out a view with regard to
the further prosecution, and by implication, detention, of the appellants.
On the evidence before the Court a quo there is simply no way of knowing if that happened
and if it did not, whether the locus of legal liability may well rest with the prosecution. The
case advanced by the appellants was not for malicious prosecution, and the absence of any
evidence on this aspect cannot be the fault of the respondents. Simply put, that was not the
case on the pleadings they were required to meet. If indeed it was the case for the appellants
that the police failed in their duty to properly inform the prosecutor of the correct state of
affairs, including the arrest of other suspects, then they were obliged to plead that, and to
lead the necessary evidence in support of that.
That it was not done cannot now mean that the police continue to attract liability for all the
results that follow from the extraction of an unlawful confession and its presentation in the
docket. Odious and offensive as that conduct may be, its further role in the prosecution
process cannot simply be the product of conjecture and speculation.
It can hardly be unreasonable to assume that a prosecutor viewing the docket in its entirety
may have reached the conclusion that despite the confession, the case against the first
appellant was not sustainable or even if it was, that his release on bail may well have been
considered if a bail application was launched . . . .
Thus what emerged is a significant gap in the case for the appellants in seeking to hold the
respondents liable for their judicial detention. That gap relates in its entirety to the
proceedings before the Court on the 30th May 2005 and thereafter until the release of the

appellants and includes the decisions taken for their further detention, the basis for such
decisions, the absence of a bail application and the reasons therefore. Under those
circumstances the existence of the unlawfully obtained confession cannot be dispositive of
the matter. To do so would be to ignore the important role of the prosecutor and the Court,
both of whom have constitutional and legal obligations with regard to the decisions taken
on the further detention of the appellants.’

[12] The full court confirmed the trial court’s refusal to award the plaintiffs
damages for the period of their judicial detention and dismissed the appeal
with costs.  The present appeal is against that decision, special leave having
been granted by this Court.

The constitutional framework
[13] The claims of the plaintiffs must be viewed against the provisions of the
Constitution, the common law and the provisions of the Criminal Procedure
Act (CPA).17 Section 12(1)(a) of the Constitution guarantees the right of
security and freedom of the person, which includes the right ‘not to be
deprived of freedom arbitrarily and without just cause’. Section 35(1) provides
that anyone who is arrested for allegedly committing an offence has the right,
amongst others:
‘(d) to be brought before a court as soon as reasonably possible, but not later than—
(i)
48 hours after the arrest; or
(ii)
the end of the first court day after the expiry of the 48 hours, if the 48 hours expire
outside ordinary court hours or on a day which is not an ordinary court day;
(e)
at the first court appearance after being arrested, to be charged or to be informed of
the reason for the detention to continue, or to be released; and
(f)
to be released from detention if the interests of justice permit, subject to reasonable
conditions.’

17 Act 51 of 1977.

These rights are echoed and somewhat elaborated on in s 50 of the CPA.
Section 60 of the CPA deals with the release of detained persons on bail.
Section 35(2)(d) of the Constitution furthermore provides that, ‘Everyone who
is detained … has the right to challenge the lawfulness of the detention in
person before a court and, if the detention is unlawful, to be released.’

[14] Froneman J,18 writing the second judgment in De Klerk v Minister of
Police,19 in his dissent explained the effect of s 35 of the Constitution in this
context as follows:
‘Subsections 35(1)(d)-(f) impose constitutional obligations on three different institutions of
government: the police services, the National Prosecuting Authority and the judiciary. The
police carry the responsibility to ensure a criminal suspect is brought before a court as
required by s 35 (1)(d). This is an administrative function to be exercised within the broader
executive authority of government. The decision to charge a suspect under s 35(1)(e) is one
that falls under the authority and competence of the National Prosecuting Authority, an
independent institution under the Constitution. The decision to release or detain a suspect
falls within the independent judicial authority or competence of the judiciary.’

[15] Mogoeng CJ, in the third judgment in De Klerk, also a dissent, stressed
that:20
‘In this context, considerations of public policy based on our constitutional norms and
values demand a commitment to the fulfilment of constitutional obligations, especially
those that affect the liberties of individuals, the respect for and observance of separation of
powers, and the need for courts to make just and equitable orders.’

18 With whom Goliath J and Mhlantla J concurred.
19 De Klerk v Minister of Police [2019] ZACC 32; 2020 (1) SACR 1 (CC) para 132. (Citations omitted.)
20 See para 183. (Citations omitted.) At para 178 observed that the first judgment relied ‘on the minority
judgment of the Supreme Court of Appeal that has made no effort to grapple with the imperatives of our
Constitution.’ The Supreme Court of Appeal judgment is reported as De Klerk v Minister of Police [2018]
ZASCA 45; 2018 (2) SACR 28 (SCA). He concluded at para 184 that, ‘(f)or these reasons, I am satisfied that
the constitutional obligations imposed on the court are an automatic novus actus interveniens’.

The first judgment of Theron J21 and the separate concurring judgment of
Cameron J22 did not take issue with these principles. This delineation of
constitutional responsibilities also accords with what was said by Harms DP
in Sekhoto,23 who added that:
‘The discretion of a court to order the release or further detention of the suspect is subject
to wide-ranging, and in some cases stringent, statutory directions. Indeed, in some cases the
suspect must be detained pending his trial, in the absence of special circumstances. I need
not elaborate for present purposes, save to mention that the [CPA] requires a judicial
evaluation to determine whether it is in the interests of justice to grant bail; that in some
instances a special onus rests on a suspect before bail may be granted; and the accused has
in any event a duty to disclose certain facts, including prior convictions, to the court. ...
While the purpose of arrest is to bring the suspect to trial, the arrestor has a limited role in
that process. He or she is not called upon to determine whether the suspect ought to be
detained pending a trial. That is the role of the court (or in some cases a senior officer). The
purpose of the arrest is no more than to bring the suspect before the court (or the senior
officer) so as to enable that role to be performed.’24

[16] The roles performed by the prosecuting authority and the court in the
further detention of a detained person at the first and subsequent court

21 With whom Basson AJ, Dlodlo AJ, Khampepe J and Petse AJ concurred. See paras 1-96.
22 See paras 97-113.
23 Sekhoto op cit fn 14 paras 42-44. (Emphasis added; citations omitted.)
24 The appeal in Sekhoto admittedly only concerned the lawfulness of the arrest and not the issue of subsequent
detention.

appearances, are significant. As regards the prosecutorial decision 25 it was
held in Minister of Police and Another v Du Plessis that: 26
‘Once an arrestee is brought before a court, in terms of s 50 of the Criminal Procedure Act
51 of 1977 (CPA), the police’s authority to detain, inherent in the power of arrest, is
exhausted.  . . . . As pointed out . . . in the court below, before the court makes a decision
on the continued detention of an arrested person comes the decision of the prosecutor to
charge such a person. A prosecutor has a duty not to act arbitrarily. A prosecutor must act
with objectivity and must protect the public interest.’

[17] Court orders providing for judicial detention are constitutionally
significant. As a general principle, all court orders (other than some which
concern constitutional invalidity) have force from the moment that they are
issued, and are binding until set aside (irrespective of whether or not the orders
concerned are valid,27 and whether correctly or incorrectly granted),28 or
otherwise impugned at the instance of the person who alleges that it should be

25 The prosecutorial decision will inform the decision of the magistrate’s order – see Minister of Safety and
Security v Magagula [2017] ZASCA 103; 2017JDR 1486 (SCA) para 15.
See also Minister of Police and Another v Du Plessis [2013] ZASCA 119; 2014 (1) SACR 217 (SCA) paras
30-31:
‘A prosecutor exercises a discretion on the basis of the information before him or her. In S v Lubaxa 2001 (2)
SACR 703 (SCA) (2001 (4) SA 1251; [2002] 2 All SA 107) para 19 this court said the following:
“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.”
Courts are not overly eager to limit or interfere with the legitimate exercise of prosecutorial authority.
However, a prosecuting authority’s discretion to prosecute is not immune from the scrutiny of a court which
can intervene where such a discretion is improperly exercised. See generally National Director of Public
Prosecutions v Zuma 2009 (1) SACR 361 (SCA) (2009 (2) SA 277; 2009 (4) BCLR 393; [2008] 1 All SA
197) para 37. Indeed, a court should be obliged to, and therefore ought to, intervene if there is no reasonable
and probable cause to believe that the accused is guilty of an offence before a prosecution is initiated.’
(Citations omitted.)
26 Minister of Police and Another v Du Plessis [2013] ZASCA 119; 2014 (1) SACR 217 (SCA) para 28.
(Citations omitted.)
27 Department of Transport and Others v Tasima (Pty) Ltd [2016] ZACC 39; 2017 (2) SA 622 (CC) paras
179-181.
28 Harms Civil Procedure in the Superior Courts June 2018 A3.7.

impugned,29 where it might not be required to actually set the order aside. 30
An invalid order is not a nullity. 31 Even in the absence of a contested bail
application, every court order, including the initial order for detention, should
be a deliberative judicial act and must consider the rights of the arrested person
and weigh those in the scales of justice against the interest of the public to
have persons reasonably suspected of being perpetrators of crime detained,
where appropriate, pending their prosecution. A court order which simply
directs the detention of an accused person without giving due consideration to
these constitutional imperatives, as occurred in the notorious ‘reception
courts’ and De Klerk, is liable to be impugned. Where an order for detention
is impugned successfully, it is desirable that such order should be set aside
rather than be allowed to remain in existence with an uncertain status.32

The liability of the police for detention ordered by a court
[18] Although the lawfulness or otherwise of a court order for an arrested
person’s judicial detention depends primarily on the conduct of the prosecutor
and/or the magistrate, the police can incur liability for damages for detained
persons being denied their freedom after their appearance before a court,

29 Minister of Law and Order and Another v Dempsey 1988 (3) SA 19 (A) at 37H-38G. Airports Company
South Africa v Big Five Duty Free (Pty) Ltd and Others [2018] ZACC 33; 2019 (5) SA 1 (CC) para 99.
30 Master of the High Court (North Gauteng High Court, Pretoria) v Motala NO and Others [2011] ZASCA
238; 2012 (3) SA 325 (SCA) paras 12 -14 and the authorities there referred to.
31 Ibid.
32 In Minister of Justice and Constitutional Development Another v Zealand [2007] ZASCA 92; 2007 (2)
SACR 401 (SCA) para 17 this court held that ‘[a] decision by a court to remand an accused person in custody
results in lawful detention of that person. Such a decision needs to be set aside before lawful detention in
terms thereof ceases’. The subsequent decision of the Constitutional Court in Zealand v Minister of Justice
and Constitutional Development and Another [2008] ZACC 3; 2008 (4) SA 458 (CC) must be understood in
its correct context on the facts of that case. The Constitutional Court disagreed that the series of magistrates’
court orders remanding the accused in custody rendered the detention of the accused – who was detained as
a convicted prisoner, contrary to his status as an awaiting trial detainee – lawful. It held that the reasoning
that the accused was detained in terms of a court order, and therefore that this does not affect the lawfulness
of his detention, is to ignore the substantive protection afforded by the right not to be deprived of freedom
arbitrarily or without just cause, as contained in s 12(1)(a) of the Constitution. Zealand was however not
concerned with whether the accused should be detained, but with the place or manner of detention. The breach
of s 12(1)(a) of the Constitution, because he was detained as a sentenced offender, was sufficient in the factual
circumstances of that case to render the detention unlawful for the purposes of a delictual claim for damages.

notwithstanding the court having ordered such detention. This occurred in,
amongst others, De Klerk and Woji v Minister of Police.33 It is necessary to
discern the applicable principles which resulted in liability in these decisions.
Two possible situations arise. It is important to distinguish between these
situations as the incidence of the burden of proof, which could be decisive, is
different in each.

[19] In De Klerk, Mr de Klerk was, within hours of his arrest for assault on
20 December 2012, taken to court for his first appearance. This court was in
the nature of a ‘reception court’ which, notwithstanding the comments in
Minister of Safety and Security and Another v Ndlovu, 34 on the facts of De
Klerk still existed. 35 Mr de Klerk was not afforded the opportunity to apply
for bail. No consideration was given by the prosecutor or the magistrate as to
whether he should be released on bail, or otherwise. He was simply informed
by the magistrate that he would be remanded in custody, and an order to that
effect was granted as a matter of routine. Mr de Klerk was released on
28 December 2012, before his second appearance in court and before any bail
application could have been pursued,36 after the complainant withdrew the
charges against him.

[20] The judgments of Theron J and Cameron J considered the issue to be
decided as one of causation;37 that is whether the arresting officer at the time
of unlawfully arresting Mr De Klerk foresaw his continued detention by the
court at his first appearance. Theron J held: 38

33 Woji v Minister of Police [2014] ZASCA 108; 2015 (1) SACR 409 (SCA).
34 Minister of Safety and Security and Another v Ndlovu [2012] ZASCA 189; 2013 (1) SACR 339 (SCA)
para 13.
35 De Klerk op cit fn 19 para 49.
36 De Klerk v Minister of Police [2018] 2 All SA 597 (SCA); 2018 (2) SACR 28 (SCA) para 24.
37 The judgment of Theron J stated at para 22 that ‘[t]he application for leave to appeal filed before us
unequivocally frames the question as one of legal causation’.
38 De Klerk op cit fn 19 para 19. (Emphasis added.)

‘In my view, on the case as brought before us, there is one potential delict, namely, the
unlawful arrest of the applicant. . . . . 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 not argued, as the second judgement persuasively finds, that an omission by
the arresting officer to prevent his further detention after the first appearance is wrongful39
. . . Constable Ndala subjectively foresaw the precise consequence of her unlawful arrest of
the applicant. She knew that the applicant’s further detention after his court appearance
would ensue. She reconciled herself to that consequence. What happened in the reception
court was not, to Constable Ndala’s knowledge, an unexpected, unconnected and
extraneous causative factor – it was the consequence foreseen by her, and one which she
reconciled herself to. 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.’40

[21] Theron J concluded that:
‘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.41 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

39 The minority judgment of this court in De Klerk (op cit fn 31 para 44) held that ‘that balance is appropriately
struck by holding that an arresting officer is not liable for detention ordered by a court pursuant to a
deliberative or considered judicial process, unless the arresting officer has the full animus iniuriandi required
for malicious deprivation of liberty. The requisite animus iniuriandi might be present at the time of the arrest
or might come into existence afterwards. Either way, in such a case one is dealing with two wrongful acts,
namely the wrongful arrest and the malicious deprivation of liberty (ie instigating the judicial detention).’
40 De Klerk op cit fn 19 para 81. Emphasis added.
41 Emphasis added.

Ndala knew it would not 42. . .On the facts of this case, the magistrate concerned should not
be exclusively liable for the subsequent detention, given the original delict by the arresting
officer and her subjective foresight of the subsequent detention, and the harm associated
therewith.’43
Cameron J agreed with the judgment of Theron J ‘that on the very particular
facts of Mr De Klerk’s case’ he should succeed with his claim ‘to hold the
police liable for [the] whole of his detention, pre- and post-court appearance’,
as ‘[t]he particular facts linked his post-appearance detention sufficiently to
the initial unlawful arrest.’44

Unlawful conduct following an arrest – a separate delict.
[22] In another instance, the police might be guilty of some wrongful
conduct independent of the arrest, intended to influence the prosecutorial
decision to request and/or the court’s discretion to direct the further detention
of the arrested person, where, but for such unlawful conduct by the police, the
further detention would not have been ordered by the court. In that instance
the police would foresee, as inevitable, at the time of such wrongful conduct,
that the detained person would be deprived of his/her liberty at the first
appearance before a court, until the validity of such detention could be
reviewed. Every case will depend on its own facts.45 In De Klerk Theron J said,
46 that ‘[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

42 De Klerk op cit fn 19 para 86. (Emphasis original.)
43 De Klerk op cit fn 19 para 88. (Emphasis added.) Neither the magistrate, nor the Department of Justice, had
been joined as parties to the action, which had the result of non-suiting Mr de Klerk in respect of any claim
against them.
44 Ibid para 103. (Italics my own.)
45 Jurgens and Others v Volkskas Bank Ltd 1993 (1) SA 214 (A) at 221G-H cautioned that:
‘At the outset it is useful to bear in mind the salutary reminder of the Earl of Halsbury LC in Quinn v Leatham
[1901] AC 495 (HL) at 506
“. . . that every judgment must be read as applicable to the particular facts proved, or assumed to be proved,
since the generality of the expressions which may be found there are not intended to be expositions of the
whole law, but governed and qualified by the particular facts of the case in which such expressions are to be
found . . . that a case is only authority for what it actually decides”.’
46 De Klerk op cit fn 19 para 63. (Emphasis added.)

evaluated and considered in determining legal causation. . .there is no general
rule that can be applied dogmatically in order to determine liability.’

[23] Where the police acted unlawfully ‘after’ the unlawful arrest,47 any
harm resulting from having ‘acted unlawfully’ is not caused by the unlawful
arrest, but is caused by that unlawful conduct, just as unlawful conduct by the
police after a lawful arrest would constitute a separate delict. Whether harm
was caused by that unlawful conduct must be assessed with reference to that
unlawful conduct, as distinct from the arrest, whether lawful or unlawful,
which preceded it. Whether that separate unlawful conduct affords a remedy
in law must be established in regard to that delict. If non-patrimonial damages
are sought to be recovered in respect of such unlawful act under the actio
iniuriarum, the special features pertaining to an unlawful arrest will not apply.
The onus, in accordance with general principle, would be on the plaintiff to
prove all the requirements of the actio iniuriarum, including fault in the form
of animus iniuriandi. Malice is not required, only legal intent, even in the form
of dolus eventualis, 48 to injure – even in the case of malicious prosecution 49
or malicious detention. 50

[24] In Woji v Minister of Police51 Mr Woji was lawfully arrested on a charge
of robbery. He was remanded in custody at his first appearance before court.
At the bail hearing conducted shortly thereafter, the investigating officer
untruthfully testified that Mr Woji was clearly identifiable on a video of the

47 The phrase used by Theron J in De Klerk para 63, as quoted above.
48 Barclays National Bank Ltd v Traub; Barclays National Bank Ltd v Kalk 1981 (4) SA 291 (W) at 297H-
298A.
49 Moaki v Reckitt and Colman (Africa) Ltd and Another 1968 (3) SA 98 (A) at 104E-F; Relyant Trading (Pty)
Ltd v Shongwe and Another [2006] ZASCA 162; [2007] 1 All SA 375 (SCA) para 5.
50 Sikhunana v Minister of Safety and Security [2013] ZAECPEHC 23 para 16. An arrest is malicious when
the defendant makes improper use of the legal process to deprive a plaintiff of his or her liberty. This is
similarly the case in respect of malicious detention.
51 Woji v Minister of Police [2014] ZASCA 108; 2015 (1) SACR 409 (SCA).

robbery for which Mr Woji was being detained, which he had viewed. This
evidence caused the court to refuse bail. Mr Woji was detained until the
prosecutor viewed the footage and saw that Mr Woji could not be identified as
one of the robbers, at which point he withdrew the charge. In an action for
damages for wrongful detention it was held that the investigating officer
foresaw the possibility that his untruthful evidence would lead to the refusal
of Mr Woji’s application for bail; differently stated, on the facts and evidence
the investigating officer subjectively foresaw that his evidence would lead to
the refusal of bail and he proceeded recklessly to assert that it was Mr Woji on
the video footage. This was in breach of the duty imposed by the Constitution
on the State and all of its organs not to perform any act that infringes an
entrenched right, such as the rights to human dignity and freedom and security
of the person. The fact that the investigating officer had made a false statement
which influenced the order, was raised pertinently on the pleadings52 and
canvassed fully in the evidence.

[25] Thus, if pleaded properly, the police will incur liability for wrongful
conduct subsequent to an arrest, whether lawful or unlawful, which caused a
detained person to be deprived further of his liberty after the first court
appearance, until that unlawfulness could be corrected. It is necessary then to
turn to consider the pleadings in this appeal.

The pleaded case
[26] The pleadings are of paramount importance in every civil dispute. They
identify the legal and factual issues in dispute that have to be decided,
determine what evidence is relevant, and determine which party bears the onus

52 The basis for Mr Woji’s claim was described as '… that the magistrate, in refusing to grant bail, acted upon
the information supplied by Insp Kuhn’ (Woji op cit fn 50 at 415C-D).

of proof proper, any evidentiary onus and the duty to begin. In Molusi and
Others v Voges NO and Others53 it was said that:
‘The purpose of pleadings is to define the issues for the other party and the court.  And it is
for the court to adjudicate upon the disputes and those disputes alone. Of course there are
instances where the court may of its own accord (mero motu) raise a question of law that
emerges fully from the evidence and is necessary for the decision of the case as long as its
consideration on appeal involves no unfairness to the other party against whom it is
directed.  In Slabbert54 the Supreme Court of Appeal held:
“A party has a duty to allege in the pleadings the material facts upon which it relies.  It is
impermissible for a plaintiff to plead a particular case and seek to establish a different case
at the trial.  It is equally not permissible for the trial court to have recourse to issues falling
outside the pleadings when deciding a case.”’

[27] The pleadings in this matter were anything but a model of clarity.
Indeed, the amended particulars on which the trial commenced, and filed in
the record, possibly made out no cause of action. It seems that little attention
was paid to the formulation of the plaintiffs’ claims by the litigants. The
particulars remained in that deficient form for the whole of the appellants’
case. It was only during the evidence of Captain Mogajane that the amended
particulars of claim were amended further, allegedly to accord with the
evidence. These informal amendments were apparently reflected in amended
replacement pages that were handed up to the trial judge. The replacement
pages were however not incorporated in the record before this court. This
dereliction of responsibility caused unnecessary repeated reflection by this
court on the merits of the appeal.

53 Molusi and Others v Voges NO and Others [2016] ZACC 6; 2016 (3) SA 370 (CC) para 28. (Citations
omitted.)
54 Minister of Safety and Security v Slabbert [2009] ZASCA 163; [2010] 2 All SA 474 (SCA) para 11.

[28] The material allegations in the particulars of claim, as finally amended,
read as follows:
‘7.1
On or about the 29th of May 2005, in Extension 4, Mhluzi, Middelburg,
Mpumalanga, the Second Defendant, without a proper warrant, wrongfully and unlawfully
arrested the First Plaintiff and Second Plaintiff;
7.2
Resulting from the aforesaid arrest and the subsequent conduct of the Second
Defendant and other police officers as mentioned below, the First and Second Plaintiffs
were incarcerated for a period of 9 [nine] months in Police custody and the charges were
subsequently withdrawn against the First and Second Plaintiffs during February 2006;
7.3
Subsequent to the arrest of the First and Second Plaintiffs, and with the help of other
Police Officers, whose names and further particulars are unknown to the Plaintiffs, the
Second Defendant assaulted the First and Second Plaintiffs continuously when they were
handcuffed and faces covered, using clinched fists and open hands all of which caused the
First Plaintiff to make a statement incriminating himself and the Second Plaintiff.
As a result of the aforesaid unlawful arrest, detention and assault, the First and
Second Plaintiffs suffered damages due to the fact that their dignitas, fama, bodily integrity
and their right to freedom was infringed.’
The words in bold reflect the amendments effected informally during the trial.
The Minister denied liability for the for the appellants’ detention by pleading
that, ‘[s]ince or about 31 May 2005 until the date of their release, the plaintiffs
were detained by virtue of an order of Court.’55 No replication was filed.

[29] The pleadings did not receive any detailed examination by the trial
court. It simply observed that, ‘[the] battlefield between the parties, is
whether the arrest of the plaintiffs was lawful. The second one was whether
the further detention of the plaintiffs, after they had appeared in court, could
be attributed to the defendant.’ The full court also did not analyse the pleadings
but commented that ‘… in considering the factual matrix in this matter, regard

55 No consequential adjustment was made in terms of rule 28(8) in response to the amended particulars of
claim, nor was any consequential adjustment made to the plea in response to the informal amendment effected
during the trial.

must of necessity be had to the role of the prosecutor and that of the court in
the period from [31] May 2005 until 10 February 2006’.

[30] The allegations in paragraph 7.3 of the particulars referred to the assault
(which the trial court found to be established) and that the assault caused Mr
Mahlangu to make the confession (which the trial court found as a fact) in
which he incriminated himself and Mr Mtsweni. The allegations in paragraph
7.2 of the particulars of claim were however unsatisfactory. The plaintiffs’
judicial detention was not caused by their unlawful arrest. Nor were they
incarcerated because they were assaulted resulting in Mr Mahlangu making
the incriminating confession. The causative connection between the
confession and the judicial detention of the plaintiffs was not pleaded.
Allegations should have been included along the lines that, as a result of
Lieutenant Mthombeni submitting the improperly obtained and hence
inadmissible confession to the prosecutor at the first hearing, with the intention
that it be relied upon as admissible, he intended that it would be relied upon to
cause the plaintiffs to not be considered for release from custody, and that any
request by the plaintiffs to be released on bail would inevitably, as a matter of
practical reality, require an adjournment for a bail hearing to be held, with the
plaintiffs remaining in custody in the interim.

[31] The full court found that what caused the magistrate’s court to order the
detention of the plaintiffs at the first hearing was not dealt with in the evidence.
After much reflection as to whether that omission in the pleadings was fatal,
having reflected on the evidence of Lieutenant Mtombeni referred to in para 5
above, and considering that the Minister and Lieutenant Mtombeni defended
the claim for damages for the period of judicial detention seemingly fully
aware that the omitted allegation expressed the basis of the appellants’

claims,56 I conclude that the issues in the pleadings were widened by the
evidence57 and that the omission in the pleadings referred to above, was cured.
The Minister has not complained of any prejudice in this regard. The plaintiffs
would attract the onus of proving that such conduct on the part of Lieutenant
Mthombeni occurred with animus iniuriandi. Such animus iniuriandi could
however be implied from other allegations and need not be pleaded
expressly.58

Discussion
[32] There was no evidence that the court in which the plaintiffs appeared on
31 May 2005 was a reception-type court and that Lieutenant Mthombeni, at
the time of their arrest, foresaw their detention beyond their first appearance.
Nor was the confession made by Mr Mahlangu a day after his arrest foreseen
at that stage. This was also not a case where alternative methods to arrest were
available to the arresting officer, as were available to the arresting officer in
De Klerk.59 The wrongful arrests were not the legal cause of any part of the
appellants’ judicial detention.

56 The action forming the subject of this appeal was preceded by proceedings in the magistrate’s court, which
were withdrawn by the plaintiffs. In that action the plaintiffs formulated their cause of action as follows:
‘7.
The Plaintiffs appeared for the first time at Middleburg Magistrates’ Court on the 31 May 2005 and
consequently (Mthombeni) instructed the Prosecutor who attendant to the Case to deny them bail on the
strength that he had a strong case against the Plaintiffs and they appeared under case no 201/05/2005.
8.
As a result of the denial by the Prosecution to afford the Plaintiff to be released on bail Plaintiffs were
kept in custody from the 31 May 2005 until the matter was withdrawn on the 10 February 2006 due to
lack of evidence.
9.…
10.…
11. The arrest and detention were at all times caused or instigated by (Mthombeni) acting in the cause and
scope of his employment with the (respondent).’
This formulation was however not followed in the high court pleadings.
57 See Shill v Milner 1937 AD 101 at 105.
58 The factual basis and the findings from which it can be inferred are referred to in para 5 above.
59 These would include summons, written notice or indictment. In terms of s 38(1) of the CPA the attendance
of an accused person can be secured before a court by arrest, summons, written notice, or indictment.

[33] The issue to consider then is whether the inclusion of the inadmissible
confession in the docket at the first appearance factually and legally caused
the plaintiffs to be detained thereafter. The full court concluded that one does
not know exactly what evidence and documents were before the court when
the plaintiffs appeared before the magistrate’s court for the first time. The
relevant evidence was, with respect, overlooked because the matter had not
been pleaded properly and hence there was no focus on what would be
relevant.

[34] On the pleadings, as now taken to have been widened, and the evidence
of Lieutenant Mtombeni that the confession had been placed before the
prosecutor as part of the docket, it is reasonable to conclude that, on
probability, the confession would have been the material consideration which
caused the continued detention of the plaintiffs at their first appearance.
Believing that the confession was an admissible confession, the prosecutor
would have been justified to request a remand with Mr Mahlangu being
detained further. Similar considerations would apply to Mr Mtsweni’s
detention. The only evidence implicating him was probably the confession of
Mr Mahlangu. It was argued that such evidence would be inadmissible against
Mr Mtsweni60 as a co-accused. However, Mr Mahlangu’s status as a co-
accused could be terminated in the discretion of the prosecution should it
decide not to indict Mr Mahlangu and Mr Mtsweni together. Alternatively, it
would also be reasonably probable for the prosecution to accept that Mr
Mahlangu, consistent with his confession, would plead guilty and be convicted
and would then become a competent and compellable witness to give such

60 In terms of section 219 of the CPA, an extra-curial confession cannot be used against a co-accused. The
confessor cannot be called as a witness by the prosecution in the same proceedings unless his status as a co-
accused is ended. There was no indication that the status of Mr Mahlangu as a co-accused would be terminated
for this purpose.

evidence 61 against Mr Mtsweni. Although these possibilities were not
explored in evidence, they would, in all probability, have justifiably caused
the further detention of Mr Mtsweni at the first appearance.

[35] Accepting that the confession, on probability, factually caused the order
for the further detention of the plaintiffs until 14 June 2005 being granted, the
next question is whether the confession was the factual cause for the
subsequent orders which resulted in the plaintiffs’ judicial detention. It is not
clear what transpired at the subsequent hearings from 14 June 2005. The
Minister was entitled to invoke the subsequent successive court orders as a
defence to the plaintiffs’ claims that their further detention was unlawful.
These court orders were all prima facie valid. Cameron J in De Klerk
cautioned,62 that:
‘The test of factual causation should be flexibly applied and was here plainly established.
By contrast, where a court has given judicial consideration to whether to remand the
arrestee, 63 the police, as instigators of the detention, would not be liable. In that case,
malice as understood under the actio iniuriarum would be required to establish liability.’

[36] The onus was on the plaintiffs to prove that these subsequent orders
somehow stood to be impugned, and/or that the confession remained the
decisive consideration which dictated their continued detention from the
second appearance. The evidence in that respect was superficial. The evidence
of Lieutenant Mthombeni, referred to in para 5 above, appears to be restricted
to when the plaintiffs ‘now appeared as accused in court’, that is at ‘the first

61 S v Hudson and Others 1998 (2) SACR 359 (W) at 360J-361A. The question which arose in that matter
was whether a confession implicating a co-accused was sufficient to refuse an application in terms of s 174
of the CPA. It was held that ‘where such confession contained an indication that the co-accused would
possibly implicate the applicant for discharge, the court could form an impression of how the trial might
unfold’ and that ‘[i]n such circumstances the court would fail in its duty to weigh also the interests of the State
and of the community, if it simply granted a discharge’ (359). That conclusion can no longer be good law
after the decision in S v Lubaxa (op cit fn 52).
62 Ibid. (Citations omitted; emphasis added.)
63 On the facts of De Klerk, in a non-reception court situation, as in the present appeal.

and second appearance.’ Lieutenant Mthombeni was not cross examined
specifically on what informed the court orders at the numerous subsequent
court appearances. This aspect should not be left to speculation, or inferences
on probabilities. In any event, there can be no inference drawn unless there are
objective facts from which to infer other facts sought to be relied upon. 64 What
this apparent lacuna does illustrate, is the importance of proper pleadings in
the first place. It was not for the Minister to negative every conceivable ground
on which a court order could be impugned, without the plaintiffs having
replicated any factual basis to do so. In the light of the view I have taken of
the matter, it is not necessary to address this question further.

[37] Assuming in favour of the plaintiffs that the factual cause of the
plaintiffs’ detention for the remainder of their entire judicial detention after 14
June 2005 was the inadmissible confession, the decisive enquiry in this appeal
is whether the plaintiffs proved legal causation, and whether the Minister
should be held liable for the full period of their judicial detention. That enquiry
raises the issue whether the plaintiffs could and should have applied to be
released on bail during the period of judicial detention, and what limits of
liability the legal convictions of the community and legal policy determine.

[38] Legal liability in delict is limited in accordance with the flexible test for
legal causation. Recently, in Nohour and Another v Minister of Justice and
Constitutional Development,65 this court again dealt with the requirement of
legal causation, stating inter alia that:
‘In order to prevent the “chilling effect” that delictual liability in such cases may have . . .
such proportionality exercise must be duly carried out and the requirements of

64 Caswell v Duffryn Associated Collieries Ltd (1939) 3 All ER 722 at 733; followed in S v Naik 1969 (2)
SA 231 (N) at 234D-E.
65 Nohour and Another v Minister of Justice and Constitutional Development [2020] ZASCA 27 paras 14-
15. (Citations omitted; emphasis supplied.).

foreseeability and the proximity of harm to the action or omission complained of, should
be judicially evaluated. .Legal causation entails an enquiry into whether the alleged
wrongful act . . . is sufficiently closely linked to the harm for legal liability to ensue. . . .
Legal causation is resolved with reference to public policy. . . . The result is that even if
conduct is found to have been wrongful (or even negligent, for that matter), a court may
still find, for other reasons of public policy, the harm flowing therefrom to have been too
remote for the imposition of delictual liability. The traditional tests for determining legal
causation (reasonable foreseeability, adequate causation, proximity of the harm etc) remain
relevant as subsidiary determinants. These traditional tests should be applied in a flexible
manner. They should be tested against considerations of public policy as infused with
constitutional values. Insofar as legal causation is concerned, every matter must be
determined on its own facts.’

[39] An important consideration in this regard, is that in accordance with the
constitutional order applicable to detained persons and their constitutional
rights, the plaintiffs could have applied to be released on bail. The issue of
legal causation did not arise in De Klerk as Mr de Klerk was released before
his next court appearance and before any bail application could have been
conducted. Similarly, in Woji the period of detention caused by the
investigating officer’s untruthful evidence was restricted to the period from
when bail was refused until when Mr Woji was released. On probability, had
the plaintiffs in this matter applied for bail, the magistrate hearing the bail
application, just like the judge in the trial court, would have had no difficulty
in concluding that the confession was inadmissible, which, if that was the
reason for their continued detention (as I have assumed above in favour of the
plaintiffs), would mean that the State would have no case against the plaintiffs
and they would have been released, whether on bail, or otherwise; that is, if
the charges were not withdrawn.

[40] The plaintiffs’ rights to be released on bail were fully explained to them
at their first court appearance, and according to Mr Mahlangu they indicated
that they wished to apply for bail. The matter was adjourned to 14 June 2005
for that purpose. Mr Mahlangu testified that he applied for bail at the ‘second
hearing;’ he was simply not sure of the date. It does not seem that the plaintiffs
applied for bail. Mr Maklangu’s evidence as to why a bail application was not
pursued, is confusing. He testified that he did not ‘get along’ with his legal
representative and that another representative was appointed, but made no
attempt to explain why that would impact on the plaintiffs applying for bail.
What is clear, however, is that neither Mr Mahlangu nor Mr Mtsweni was ever
prevented from applying to be released on bail.

[41] Public
policy
considerations,
determined
with
reference
to
constitutional values66 and the constitutional order referred to above, limit
liability for the continued judicial detention to the stage where it could
reasonably be expected of the plaintiffs to have pursued a bail application to
finality. In the present matter, there was no indication that a bail hearing could
not have been held and pursued to finality on 14 June 2005. The onus was on
the plaintiffs to prove why they did not pursue a bail application.  A bail
hearing was, on the probabilities, unlikely to have taken more than one day.
Mr Mahlangu would have testified of the assault upon him, Mr Mtsweni would
have denied all involvement in the matter, consistent with his previous
statement of 30 May 2005, Lieutenant Mthombeni would have testified (like
Mr Mahlangu and Lieutenant Mthombeni testified before the trial court) and
the magistrate, would, on the probabilities, have had no difficulty in
concluding that the confession was inadmissible, accordingly that no case

66 Barkhuizen v Napier 2007 (5) SA 323 (CC) para 28.

remained against Mr Mahlangu and Mr Mtsweni, and that the interest of
justice required their release.

[42] In summary then:
(a)
It is common cause that Lieutenant Mthombeni and other unidentified
policemen, tortured 67 Mr Mahlangu after his arrest, as a result of which he
made the confession in which he implicated himself and Mr Mtsweni;
(b)
The confession would not be admissible in evidence;
(c)
The confession was included in the police docket at the time of the
plaintiffs’ first appearance in court on 31 May 2005;
(d)
The inclusion of the confession in the docket with the intention that it
be relied upon, was the factual cause of the plaintiffs’ further detention from
their first appearance until they again appeared in court on 14 June 2005;
(e)
Even assuming that the inclusion of the inadmissible confession in the
docket was thereafter also the factual cause of the plaintiffs’ judicial detention,
it was not the legal cause of their detention beyond 14 June 2005, on which
date the plaintiffs could on probability have applied for bail, and would have
been released – that is, after a period of some two weeks’ judicial detention.

[43] An appropriate award of damages for the period of two weeks’ detention
would be R100 000. This amount will be in addition to the amounts awarded
by the trial court in respect of the damages suffered preceding their judicial
detention.

67 Art 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT) defines ‘torture’ to include ‘. . . (A)ny act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person
information or a confession . . . when such pain and suffering is inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in an official capacity . . . . ’ South
Africa ratified CAT on 10 December 1984, and it entered into force on 26 June 1987, 1465 UNTS 85. The
prohibition against torture is one of our most fundamental constitutional values. To torture anyone to obtain
a confession is a crime that the CAT requires all member states to investigate thoroughly to ensure that
perpetrators are severely punished. See S v Mthembu [2008] ZASCA 51; 2008 (2) SACR 407 (SCA) para 30.

Costs
[44] Although the plaintiffs have not been successful to the full extent
claimed by them, they have enjoyed substantial success. There is no reason
why they should not be awarded the costs of the appeal, the costs of the
proceedings before the full court, and the costs before the trial court. Both
sides employed two counsel. Having regard to the novelty and complexity of
the matter, the employment of two counsel appears reasonable and appropriate
and the costs occasioned thereby should be allowed.

Order
[45] In the result the following order is made:
1 The appeal is upheld with costs, such costs to include the costs consequent
upon the employment of two counsel where employed.
2 The order of the full court is set aside and substituted with the following:
‘(a)
The appeal succeeds with costs, including the costs of two
counsel where employed;
(b)
The order of the trial court is set aside and replaced with the
following:
“The first defendant is ordered to pay:
(i)
The amount of R190 000 to the first plaintiff;
(ii)
The amount of R150 000 to the second plaintiff;
(iii) Costs of suit, including the costs of two counsel where
employed.”’

____________________
P A KOEN
ACTING JUDGE OF APPEAL

Van der Merwe JA (dissenting)
[46] I have had the benefit of reading the judgment of Koen AJA. However,
I find myself in respectful disagreement with its reasoning and conclusion,
hence this judgment.

[47] The first appellant is Mr Johannes Eugen Mahlangu. The second
appellant is Ms I T Mailela, in her representative capacity as the duly
appointed executrix of the deceased estate of Mr Phannie Johannes Mtsweni.
Mr Mtsweni passed away after he and Mr Mahlangu had instituted action
against the respondent, the Minister of Police, as well as his employee,
Detective Inspector Emson Mthombeni, for damages arising from unlawful
arrest and detention.

[48] The matter proceeded to trial before Mabuse J in the Gauteng Division
of the High Court, Pretoria. That court held that the respondent was liable for
the unlawful arrest of Mr Mahlangu and Mr Mtsweni as well as for their
detention up to their first appearance in court, but not for their subsequent
detention. The appellants unsuccessfully appealed to the Full Court (Molopa-
Sethosa, Ranchod and Kollapen JJ) against the dismissal of their claims in
respect of post-appearance detention. The appeal is before us with the special
leave of this Court. Only the respondent opposes the appeal. The issues in the
appeal are whether the respondent is liable for damages arising from the
detention of Mr Mahlangu and Mr Mtsweni during the period from their first
appearance in court on 31 May 2005 to their release on 10 February 2006 and,
if so, the quantum of damages to be awarded.

[49] Mr Vusi Motebu, his partner, Ms Thuli Mathebula and three children
respectively approximately eight, six and three years old, resided at 12359,

Extension 7, Mhluzi, Middelburg, Mpumalanga. From Monday 23 May 2005
onwards no-one responded when relatives and friends visited the home of this
family. It was noticed that the children had not attended school and that the
house was dark at night. Eventually, on 27 May 2005, a visitor heard the
youngest child crying inside the house. This led to the gruesome discovery that
Mr Motebu, Ms Mathebula and the two elder children had been murdered. Mr
Motebu and Ms Mathebula were both hanged from rafters and suffered stab
wounds. One of the children was strangled with a wire around her neck and
the other appeared to have been suffocated but also had a stab wound in the
neck. It appeared that one of the girls may have been raped. The house was
ransacked and several items were missing. A case of murder, rape and robbery
was opened.

[50] Detective Inspector Emson Mthombeni was appointed as the
investigating officer in the case. On 27 and 28 May 2005 he took statements
from various persons. These were the persons that had fruitlessly visited the
house of the deceased persons and that had subsequently discovered these
crimes, as well as one of the police officers who first attended the scene of the
crimes. These witnesses did not in any way implicate anyone in the crimes.

[51] Between eight and nine o’ clock on Sunday morning 29 May 2005, Mr
Mthombeni and three of his colleagues went to the house of Mr Mahlangu. Mr
Mahlangu was at home with his partner and their baby. Despite the fact that
he had no grounds whatsoever for suspecting that Mr Mahlangu had been
involved in the commission of the crimes that he investigated, Mr Mthombeni
arrested him without a warrant.

[52] Mr Mthombeni and his colleagues took Mr Mahlangu to their offices.
They placed his legs in irons and handcuffed his hands behind his back. In
order to force Mr Mahlangu to admit that he had committed the crimes, they
repeatedly suffocated him by placing a rubber tube or a plastic bag over his
head. This lasted for a couple of hours. Mr Mahlangu ultimately succumbed
and confessed to what he had not done. When asked how he killed the deceased
persons, he initially said that he had shot them with a firearm. This was, of
course, not correct and under further duress he said, by pure guesswork, that
the deceased persons had been stabbed to death. The police officers insisted
that he could not have committed the crimes on his own. Mr Mahlangu was
thus forced to identify Mr Mtsweni, who was merely an acquaintance of his
that resided in the same street, as his supposed co-perpetrator.

[53] As the result of the aforegoing, Mr Mahlangu made a written statement
to a justice of the peace (a police captain) on 30 May 2005, in which he
declared in some detail that he and Mr Mtsweni had committed the crimes. On
the same day, Mr Mtsweni was arrested without a warrant. Both Mr Mahlangu
and Mr Mtsweni were detained until they appeared in the Middelburg
magistrates’ court on 31 May 2005.

[54] When they appeared in court, Mr Mahlangu and Mr Mtsweni did not
have legal representation. That is clear from the evidence of Mr Mahlangu and
the record of the magistrate. The magistrate recorded that after an explanation
of their ‘bail hearing rights’, the accused indicated that they wished to apply
for bail. The prosecutor, however, requested that the matter be remanded for
further investigation and a bail hearing, as the State intended to oppose bail.
Mr Mahlangu testified that he and Mr Mtsweni were not afforded the
opportunity to address the court in relation to the request for postponement

and that they were only told that ‘the matter was being remanded’. There is no
reason to doubt that this was how it came about that the matter was postponed
to 14 June 2005 and that Mr Mahlangu and Mr Mtsweni remained in custody.

[55] The matter was subsequently remanded on several occasions. Mr
Mahlangu and Mr Mtsweni remained in custody. It appears that at some stage
an attorney represented both Mr Mahlangu and Mr Mtsweni. Mr Mahlangu
testified that he and the attorney did not see eye to eye. As a result, no
application for bail for Mr Mahlangu was made. Mr Mahlangu said that his
understanding was that Mr Mtsweni had applied for bail but that bail was
refused. The record does not confirm or refute this.

[56] In the meantime, the police arrested the real perpetrators of these crimes.
The fingerprints of two of the real culprits matched fingerprints that had been
lifted from the crime scene inside the house of the deceased. The Director of
Public Prosecutions decided to prosecute these persons and declined to
prosecute Mr Mahlangu and Mr Mtsweni. They were accordingly released on
10 February 2006. Both the aforesaid perpetrators were subsequently
convicted and sentenced to life imprisonment.

[57] In their particulars of claim, the appellants claimed non-patrimonial
damages and patrimonial damages consisting of loss of income. However, no
evidence that Mr Mahlangu or Mr Mtsweni suffered any loss of income was
adduced. What then remained were their claims for infringement of their
personality rights under the actio iniuriarum. At issue therefore is whether the
appellants pleaded and proved that the unlawful conduct of Mr Mthombeni
and his colleagues was the cause of the entire period of the post-appearance
detention of Mr Mahlangu and Mr Mtsweni.

[58] The principles of our law in respect of causation were laid down in
judgments of this Court such as Minister of Police v Skosana 1977 (1) SA 31
(A) at 34F-H and S v Mokgethi en Andere 1990 (1) SA 32 (A) at 39D-41H.
See also International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A)
at 700E-701E. In a delictual setting they provide that a defendant will be held
liable for the factual consequences of his or her wrongful and culpable
conduct, unless, having regard, inter alia, to considerations of legal and public
policy, a consequence is regarded as too remote from the conduct to justify
liability.

[59] After the appellants had closed their cases at the trial, they applied for
leave to amend their particulars of claim. There was no objection to the
proposed amendment and it was duly allowed by the trial court. Prior to the
amendment the particulars of claim contained detailed allegations that the
police had assaulted Mr Mahlangu (and Mr Mtsweni). The purpose and effect
of the amendment was to bring the pleadings in line with the evidence of Mr
Mahlangu that the assault on him caused him to make the statement
incriminating himself and Mr Mtsweni and to allege that that was also the
cause of their incarceration.

[60] The relevant paragraph of the amended particulars of claim read as
follows: (The portions introduced by the amendment are italicised):
‘7.1
On or about the 29th of May 2005, in Extension 4, Mhluzi, Middelburg,
Mpumalanga, the Second Defendant, without a proper warrant, wrongfully and
unlawfully arrested the First Plaintiff and Second Plaintiff;

7.2
Resulting from the aforesaid arrest, and the subsequent conduct of the Second
Defendant and other police officers as mentioned below, the First and Second
Plaintiffs were incarcerated for a period of 9 [nine] months in Police custody and

the charges were subsequently withdrawn against the First and Second Plaintiffs
during February 2006;

7.3
Subsequent to the arrest of the First and Second Plaintiffs, and with the help of other
Police Officers, whose names and further particulars are unknown to the Plaintiffs,
the Second Defendant assaulted the First and Second Plaintiffs continuously when
they were handcuffed and faces covered, using clienched fists and open hands all of
which caused the First Plaintiff to make a statement incriminating himself and the
Second Plaintiff.’

[61] In my view the amended particulars of claim encapsulated the following
case: Mr Mthombeni unlawfully arrested Mr Mahlangu. Subsequent to the
arrest, Mr Mthombeni and other police officers subjected Mr Mahlangu to a
continuous assault and caused him to make a statement falsely incriminating
himself and Mr Mtsweni. As a result of the unlawful arrest of Mr Mahlangu
and the subsequent conduct of the police (extraction of a false confession by
assault), both Mr Mahlangu and Mr Mtsweni were incarcerated for a period of
nine months. Therefore the forcible extraction of the confession was the cause
of the entire period of the incarceration of Mr Mahlangu and Mr Mtsweni.

[62] That is how the parties addressed the matter before the Full Court. As a
result the Full Court considered whether the unlawfully obtained confession
had influenced the decision of the prosecutor to oppose bail, but held on the
facts that that was not proved. The respondent supported this finding before
us. I shall revert to this aspect after reference to the applicable legal principles.

[63] In the recent matter of De Klerk v Minister of Police [2019] ZACC 32
(De Klerk CC), the Constitutional Court considered the liability of the
respondent for detention subsequent to a remand order. The facts of the matter
were briefly that after his employer had lodged a complaint of assault against

him, Mr De Klerk was requested to report to the Sandton police station. Upon
his arrival he was arrested without a warrant. It was common cause that the
arrest was unlawful. He was then taken to the Randburg magistrates’ court,
where he appeared approximately two hours after his arrest. The arresting
officer recorded in the docket that she recommended that Mr De Klerk be
released on bail in the amount of R1 000. However, Mr De Klerk appeared in
a ‘reception court’ where the magistrate routinely postponed the matter
without any consideration of bail. The arresting officer knew that this would
happen and therefore subjectively foresaw that despite her recommendation,
Mr De Klerk would remain in detention after his first appearance in court.

[64] The Constitutional Court handed down four judgments. Theron J
(Basson AJ, Dlodlo AJ, Khampepe J and Petse AJ concurring) held that the
unlawful arrest was the cause of the post-appearance detention of Mr De Klerk
and that the respondent was liable for damages in respect thereof. Cameron J
agreed but did so on a different basis. He reasoned that in the light of the
knowledge of the police of how the ‘reception court’ operated, the respondent
was liable for the post-appearance detention because the police failed to
release Mr De Klerk on bail as they were empowered to do. Froneman J
(Goliath AJ and Mlantla J concurring) disagreed and held that the respondent
was not liable by reason thereof that the conduct of the arresting officer had
not been wrongful. Moegoeng CJ concurred with Froneman J and added, in
essence, that the remand order of the magistrate had been ‘an automatic novus
actus interveniens’, which absolved the respondent from liability for
subsequent detention. Thus, the Constitutional Court by majority set aside the
majority judgment of this court in De Klerk v Minister of Police [2018]
ZASCA 45; 2018 (2) SACR 28 (SCA), but did so for reasons that did not carry
a majority.

[65] Seven of the ten members of the Constitutional Court decided the matter
on causation. Apart from this, De Klerk CC offers no assistance for the
determination of the present matter. First, the facts of that matter are entirely
different from those in the present appeal. Second, as is apparent from what I
have said, De Klerk CC did not lay down any binding principle of law in
respect of the liability of the police for detention subsequent to a remand order.

[66] It follows that De Klerk CC did not affect the unanimous judgment of
this court in Woji v Minister of Police 2015 (1) SACR 409 (SCA); [2015] 1
All SA 68 (SCA). Mr Woji was arrested on suspicion that he had participated
in an armed robbery of a bank. When he appeared in court, Mr Woji applied
for bail, but it was refused and he was remanded in custody. He remained in
custody for 13 months, until the charge against him was withdrawn. Mr Woji
sued the respondent for damages for unlawful arrest as well as for his detention
after bail had been refused.

[67] This court found that the arresting officer (Inspector Kuhn) had an
objectively reasonable suspicion that Mr Woji was one of the robbers and that
the respondent accordingly discharged the onus of justifying his arrest. During
the application for bail, however, Inspector Kuhn falsely testified that Mr Woji
was clearly depicted on video footage of the robbery. The magistrate relied
upon this evidence when refusing bail. The subsequent discovery that the
video footage did not clearly depict Mr Woji led to the withdrawal of the
charge against him.

[68] In respect of the claim for unlawful detention, Swain JA held that the
conduct of Inspector Kuhn had been wrongful and negligent. He dealt with
causation in these terms:

‘[32] The detention of Mr Woji, however, resulted from the order granted by the
magistrate. In order to determine whether the conduct of Inspector Kuhn was a sine qua
non and therefore the factual cause of Mr Woji’s detention, it has to be determined ‘what
the relevant magistrate on the probabilities would have done’ had the application for bail
not been opposed, or Inspector Kuhn had revealed that Mr Woji was not clearly depicted
on the video. Because the video was the only evidence ostensibly linking Mr Woji to the
crime, the magistrate more probably than not would have released him on bail. It is also
clear that Inspector Kuhn’s wrongful conduct was sufficiently closely connected to the loss
for liability to follow, hence it also constituted the legal cause of that loss. The court a quo
therefore erred in dismissing the appellant’s claim for unlawful detention. The duration of
his unlawful detention was accordingly from 12 December 2007 when bail was refused,
until his release on 13 January 2009, a period of 13 months.’ (References omitted.)

[69] In Woji, therefore, this Court held the respondent liable for post-
appearance detention where the wrongful and culpable conduct of the police
had materially influenced the decision of the court to remand the person in
question in custody. It is immaterial whether the unlawful police influence is
exerted directly or through the prosecutor. As I shall show, the present matter
cannot on principle be distinguished from Woji.

[70] There can be no doubt that Mr Mahlangu and Mr Mtsweni were
remanded in custody because the prosecutor had opposed bail for them. How
it came about that the prosecutor opposed bail, was explained in the evidence
of Mr Mthombeni. He said that the case docket that he had presented to the
prosecutor prior to the first appearance of Mr Mahlangu and Mr Mtsweni in
court, contained all the statements that he had obtained by that time. The entire
docket was placed before the trial court. We therefore know which statements
had been obtained by that time. They were the statements that I referred to in
para 50 above, an equally innocuous statement of a person who said that he
had previously sold a hi-fi to Mr Mahlangu and the statement of Mr Mahlangu.

[71] Mr Mthombeni knew that the prosecutor would rely on the statement of
Mr Mahlangu to justify the continued detention of both Mr Mahlangu and Mr
Mtsweni. Mr Mthombeni further said that the decision to oppose bail had been
arrived at following a discussion between him and the prosecutor and having
had regard to the docket, and in particular Mr Mahlangu’s statement. Mr
Mthombeni and his compatriots obviously obtained the statement to ensure the
incarceration of Mr Mahlangu. Mr Mthombeni said that he ‘knew’ that the
statement would result in a life sentence. This is the attitude that he would
have displayed during the discussion with the prosecutor.

[72] And, as I have said, the only content of the docket on which a decision
to oppose bail could have been based, was the statement of Mr Mahlangu. On
the face of it, the statement constituted conclusive evidence against Mr
Mahlangu and reasonably justified the detention of Mr Mtsweni for further
investigation of the case against him. It is accordingly overwhelmingly
probable that the decision to oppose bail was based on Mr Mahlangu’s
unlawfully obtained and inadmissible confession. For the same reasons Mr
Mahlangu would probably not have been granted bail had he so applied, and
bail for Mr Mtsweni would have or had been refused.

[73] But Mr Mthombeni knew full well that the statement had not been made
freely and voluntarily and had been obtained by torture and coercion. Had he
revealed the truth, the prosecutor would have realised that there was no ground
whatsoever for the detention of Mr Mahlangu and Mr Mtsweni and they would
probably not have been further detained. The unlawfully obtained statement
factually caused the post-appearance detention of Mr Mahlangu and Mr
Mtsweni.

[74] It was also the legal cause of their post-appearance detention. Mr
Mthombeni subjectively foresaw what was reasonably foreseeable, namely
that the statement would lead to the post-appearance detention. The forcibly
extracted confession can clearly not be regarded as too remote from the harm
suffered by Mr Mahlangu and Mr Mtsweni. In the final analysis gross police
impropriety informed the decision of the prosecutor and tainted the
magistrate’s remand orders. In these circumstances Constitutional values and
public policy require that the respondent be held liable for the post-appearance
detention.

[75] For these reasons I hold that the respondent is liable to compensate both
Mr Mahlangu and Mr Mtsweni for the infringement of their personality rights
by their detention for the period from 31 May 2005 to 10 February 2006. They
were deprived of their Constitutional rights to freedom for a period of eight
months and ten days. According to the evidence of Mr Mahlangu, the
circumstances of their detention were unpleasant, to say the least. In addition,
each of them were in effect placed in solitary confinement for a period of two
months in order to protect them from attack by fellow detainees who believed
that they had killed their relatives. In my view damages in the amount of
R400 000 should be awarded to each appellant in addition to the amounts
awarded by the trial court in respect of pre-hearing damages.

[76] In the result I would make the following order:
1 The appeal is upheld with costs, including the costs of two counsel.
2 The order of the Full Court is set aside and replaced with the following:
‘(a) The appeal succeeds with costs, including the costs of two counsel.
(b) The order of the trial court is set aside and replaced with the following:
“The first and second defendants are jointly and severally ordered to pay:

(i)  The amount of R490 000 to the first plaintiff;
(ii)  The amount of R450 000 to the second plaintiff;
(iii)  The costs of suit.”’

________________________
C H G VAN DER MERWE
JUDGE OF APPEAL

Petse DP (concurring)
[77] I have had the privilege of reading with interest the judgments of my
Colleagues van der Merwe JA and Koen AJA in this matter. I respectfully
agree with the judgment of my Brother van der Merwe and the order that he
proposes. With equal respect, I do not agree with the judgment of my Brother
Koen and the reasoning underpinning it.

[78] On Sunday morning of 29 May 2005, and at his home situated in
Extention 4, Mhluzi township Middelburg in Mpumalanga, the first appellant,
Mr Johannes Eugen Mahlangu, was enjoying quiet time with his uncle and
‘the mother of [his] one child’. At that stage little did he know what fate
awaited him as the clock ticked away. At approximately 10h00 he was arrested
by Lieutenant Mthombeni in connection with the gruesome murder of four
persons who lived in the same street just a few houses away from his. This was
the beginning of a horrific nightmare that endured for some eight months.
What happened next and for the duration of his ordeal and that of Mr Phannie
Johannes Mtsweni, following the latter's arrest, has been sufficiently traversed

in the judgments of my Brethren. I therefore do not propose to recapitulate that
factual narrative in this judgment, save to the limited extent that it may be
necessary to do so in order to promote a better understanding of this judgment.

[79] I have to confess that after much anxious consideration it was not easy
to dispel some of the initial doubts that lingered in my mind soon after reading
the first judgment of my Brother Koen. But I am now happy to say that on
mature reflection I am persuaded, on balance, that the appeal must succeed.

[80] Although I have come to the same conclusion as my Colleague van der
Merwe JA and embrace the order formulated by him, I considered it necessary
to write separately in order to underscore certain features of this case that are
of fundamental importance.

[81] The logical point of departure, in my view, in matters such as this case,
is the Bill of Rights, which enshrines the right of every accused person not to
be compelled to make any confession or admission that could be used in
evidence against him or her.68 And to be released on bail or warning, while
still awaiting trial, subject to whatever conditions that a court might deem
necessary to impose in the interests of justice.69

[82] The first judgment proceeds from the premise that court orders ‘are
prima facie valid and will legally justify what they direct’. And that a court
order ‘prevails until the validity thereof is challenged successfully at the
instance of the person who alleges that it should be impugned’. True, it is so
that in our law an order of court remains valid and effective until it has been

68 Section 35(1)(c) of the Constitution.
69 Section 35(1)(f) of the Constitution.

set aside or rescinded (see, for example, Clipsal Australia (Pty) Ltd and Others
v Gap Distributors (Pty) Ltd and Others 2010 (2) SA 289 (SCA) para 22). The
rationale for this principle is rooted in public policy considerations to provide
for certainty and finality in litigation. The exception to the general rule is when
a judgment or order is a nullity, invalid or of no force and effect because the
court that made the order lacked the requisite jurisdiction. In those
circumstances the order may be disregarded without a pronouncement as to its
invalidity (see, for example, Master of the High Court Northern Gauteng High
Court, Pretoria v Motala N.O. and Others [2011] ZASCA 238; 2012 (3) SA
325 (SCA) paras 12-14).

[83] In the context of a court ordained detention of an accused person, our
courts have come to recognise that where the order authorising detention or
further detention is not a result of a deliberative judicial process – as it
happened in this case – such an order does not constitute a new intervening act
capable of terminating the unlawfulness of the initial detention. (See, in this
regard, De Klerk v Minister of Police (CCT95/18) [2019] ZACC32; 2019 (1)
BCLR 1425 (CC); 2020 (1) SACR 1 (CC).)

[84] Two crucial factual findings of the trial court bear emphasis. First, it
found that Mr Mahlangu and Mr Mtsweni were subjected to a sustained assault
at the hands of the police. Second, as a result of the assault Mr Mahlangu made
a statement to the police (subsequently reduced to writing before Captain
Mabunda) incriminating himself and Mr Mtsweni in the commission of the
murders under investigation by Lieutenant Mthombeni.

[85] It is as well to remember that it was never the case of Mr Mahlangu and
Mr Mtsweni that the prosecutor, in requesting their further detention, acted

arbitrarily. On the contrary, their case and the evidence that was before the
magistrate’s court from none other than Lieutenant Mthombeni himself, was
to the effect that Lieutenant Mthombeni was instrumental in orchestrating their
further detention. This he did by actively drawing the attention of the
prosecutor to the existence of Mr Mahlangu’s incriminating statement and
that, based on its contents, the prosecution had an open and shut case against
the accused then before court. Hence the unequivocal indication to the
magistrate by the prosecutor that bail would be opposed.

[86] The upshot of the first judgment, as I understand it, is that in the context
of the facts of this case borne out by the evidence adduced at the trial, it matters
not that Lieutenant Mthombeni cunningly engineered the further detention of
Mr Mahlangu and Mr Mtsweni by wilfully misrepresenting the true state of
affairs to the prosecutor. This cannot be. The reason for that is not far to seek.
As the Constitutional Court made plain in Zealand v Minister of Justice and
Constitutional Development and Another [2008] ZACC 3; 2008 (2) SACR 1
(CC), albeit in a different context, that approach entirely ‘ignores the
substantive protection afforded by the right not to be deprived of freedom
arbitrarily or without just cause’ enshrined in s 12(1)(a) of the Constitution.
That Zealand ‘was not concerned with whether the accused should be
detained, but with the place or manner of detention’ as the first judgment noted
matters not. To hold otherwise, as the first judgment does, would serve as a
perverse incentive to unscrupulous police officers to subvert the proper course
of justice as has been witnessed in this case.

[87] Here, s 12(1)(a) of the Constitution was similarly breached because
Lieutenant Mthombeni, in flagrant disregard of his duty to scrupulously
uphold the law, deliberately supressed the truth in order to secure the further

arbitrary detention of Mr Mahlangu and Mr Mtsweni. Lieutenant Mthombeni
knew full well that absent Mr Mahlangu’s inculpatory statement there was no
other incriminating evidence. This notwithstanding, he orchestrated the further
detention of Mr Mahlangu and Mr Mtsweni through his unconscionable
machinations. All of this occurred after Mr Mahlangu’s rights to bodily
integrity had been gratuitously violated in breach of s 12(1)(c) of the
Constitution.70

[88] That the Department of Justice and Constitutional Development, as the
employer of both the Magistrate and Prosecutor, might have been liable, had
it been sued in respect of the post first appearance detention, cannot, in the
context of the facts of this appeal, absolve the Minister of Police. This must
be so because what ultimately eventuated (the several remands following the
first appearance) is what Lieutenant Mthombeni had wilfully orchestrated by
manipulating the judicial system.

[89] There can be no question of the harm that is divisible here, where it
could be said that the initial harm following the unlawful arrest that is
attributable to the police came to an end once Mr Mahlangu and Mr Mtsweni
were remanded in custody. It might well be that the Magistrate's dereliction of
his or her constitutional duties under s35 of the Constitution could be said to
have rendered the Magistrate a joint wrongdoer with the police. But that is not
a subject that I need to broach for present purposes. Hence my endorsement of
the judgment and reasoning of my Colleague, van der Merwe JA.

70 Section 12(1)(c) reads:
‘Everyone has the right to freedom and security of the person, which includes the right –

(c) to be free from all forms of violence from either public or private sources.’

[90] For the aforegoing reasons, it is therefore with a great sigh of relief that
I find myself in agreement with the order proposed by van der Merwe JA.

pp

X M PETSE
DEPUTY PRESIDENT

APPEARANCES

Counsel for Appellants:
A B Rossouw SC (with him C H Badenhorst)
Instructed by:

Makhafola Verster, Pretoria

c/o Honey Attorneys, Bloemfontein

Counsel for Respondent:
R Bedhesi SC (with him D Moodliyar)
Instructed by:

State Attorney, Pretoria
State Attorney, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
21 April 2020
Status:
Immediate

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.

Mahlangu & Another v Minister of Police (1393/2018) [2020] ZASCA 44
(21 April 2020)

Today the Supreme Court of Appeal upheld the appeal of Mr J.E. Mahlangu and the
representative of the estate of the late Mr P.J. Mtsweni, against a decision of the full
court of the High Court, Gauteng Division, Pretoria.

Mr Mahlangu and Mr Mtsweni (the plaintiffs) claimed damages from the Minister of
Police (the Minister) for allegedly having been unlawfully arrested on 29 May 2005,
assaulted and thereafter detained until 10 February 2006, when the Director of
Public Prosecutions withdrew the charges against them and they were released. The
trial court (Mabuse J) found that Mr Mahlangu and Mr Mtsweni had been arrested
unlawfully, that Mr Mahlangu was thereafter tortured by the police resulting in him
making an inadmissible confession in which he implicated himself and Mr Mtsweni,
and that they were detained unlawfully until their first appearance before a
magistrate’s court on 31 May 2005. The trial court awarded damages in favour of Mr
Mahlangu in the sum of R90 000 and in favour of Mr Mtsweni in the sum of R50 000.
It declined to award any damages in respect of their detention from the time of their
first appearance before the magistrate court until their release on 10 February 2006

(their judicial detention), as such detention was pursuant to various Magistrate’s
Court orders and not caused by their unlawful arrest.

The plaintiffs’ subsequent appeal to the full court for damages for the period of their
judicial detention was unsuccessful. The full court (Kollapen J, Molopa-Sethosa and
Ranchod JJ concurring) concluded that the plaintiffs failed to prove that the police
were responsible for their judicial detention, and that they, in any event, also had a
constitutional right to challenge their detention, which they failed to do.

The Supreme Court of Appeal (Koen AJA, Cachalia JA and Dolamo AJA concurring)
concluded that the investigating officer’s inclusion of the confession in the police
docket, knowing that it would not be admissible in evidence, with the intention that it
be relied upon to secure an order for the plaintiffs’ further detention at their first court
appearance, constituted a separate delict. That delict was the legal cause of the
plaintiffs’ detention until their second court appearance on 14 June 2005, when they
were reasonably expected to have applied to be released on bail, which on the
probabilities would have been ordered, but failed to do so. The damages in respect
of their detention from 31 May 2005 until 14 June 2005 was assessed to be R100
000. The order of the full court was accordingly set aside with costs, and the Minister
ordered to pay Mr Mahlangu the sum of R190 000 and the estate of Mr Mtsweni
R150 000.

Van der Merwe JA, in a dissenting judgment, with whom Petse DP in a separate
judgement concurred, would also uphold the appeal, but direct that the Minister
compensate the plaintiffs for the full period of their judicial detention until 10 February
2006.