Minister of Police v Nontsele

The respondent, Mabhaso Nontsele, was arrested on 8 December 2013 for an alleged rape committed during a traditional ceremony. He was detained for 527 days until 19 May 2015. He was charged with a Schedule 6 offence and bail was opposed. During bail proceedings, the investigating officer and prosecutor failed to place material weaknesses in the State’s case before the magistrate, including that the evidence against him was circumstantial, his statement was exculpatory, eyewitness evidence did not implicate him, and later DNA evidence did not link him to the crime. He was ultimately acquitted in terms of s 174 of the Criminal Procedure Act after the State conceded there was no prima facie case. Nontsele sued the Minister of Police and the NDPP for unlawful arrest, detention and malicious prosecution. The High Court dismissed the arrest and malicious prosecution claims but held the post-bail detention unlawful and awarded damages of R1.6 million. The Minister appealed, and Nontsele attempted a cross-appeal without leave.

The cross-appeal was struck from the roll with costs. The Minister’s appeal was upheld with costs. The High Court’s order was set aside and replaced with an order dismissing the plaintiff’s claim with costs.

The judgment clarifies that leave to appeal or cross-appeal is a strict jurisdictional requirement under the Superior Courts Act. It reinforces the onus on plaintiffs in unlawful detention and malicious detention claims to prove lack of reasonable and probable cause and animus iniuriandi. The case also addresses the limits of liability arising from alleged non-disclosure of evidence in bail proceedings, particularly in Schedule 6 offences.