Mzukiseni Jilingisi v Minister of Police and National Director of Public Prosecutions

On 7 November 2020, Mr Nguye Winas Ngcora was found murdered at his home. He was last seen on 6 November 2020 leaving a burial association meeting with other members, including the plaintiff. On 26 January 2021, Samkelo Mqetheba was arrested for the murder. The plaintiff was arrested on 29 May 2021 (five months later) at a funeral service by members of the first defendant. He was detained at Bityi police station and appeared in the Bityi Magistrates' Court on 1 June 2021 charged with murder. His bail application was postponed and eventually granted on 24 June 2021. He was detained for 23 days. Charges were withdrawn on 9 December 2021 due to insufficient evidence. Sgt Ndlebe arrested the plaintiff based on Mqetheba's confession implicating him and oral information from community members. The plaintiff was one of six people Mqetheba conveyed from the meeting, including the deceased. Fingerprints lifted from the scene linked only Mqetheba; other fingerprints were never compared. No further investigation occurred between Mqetheba's confession (28 January 2021) and the plaintiff's arrest (29 May 2021).

• Whether the plaintiff's arrest without warrant was lawful under section 40(1)(b) of the Criminal Procedure Act 51 of 1977
• Whether Sgt Ndlebe properly exercised her discretion in arresting the plaintiff
• Whether the plaintiff's detention from arrest until first court appearance was lawful
• Whether the first defendant is liable for the plaintiff's continued detention after his first court appearance until bail was granted
• Whether the second defendant's employees maliciously prosecuted the plaintiff
• Whether there was reasonable and probable cause for the prosecution
• Whether the prosecutors acted with animus injuriandi

1. The first defendant is held liable for agreed or proven damages for unlawful arrest on 29 May 2021 and unlawful detention until 24 June 2021. 2. The second defendant is held liable for proven or agreed damages for malicious prosecution from 1 June to 9 December 2021. 3. The first and second defendants shall pay the plaintiff's costs on scale A (Uniform Rule 67A). 4. Quantum of damages stands over for determination at a later stage.

1. A confession by a co-accused, while inadmissible against another accused at trial, may constitute part of the information grounding reasonable suspicion for arrest purposes, but this does not absolve police from verifying such information where practically possible. 2. Even where jurisdictional facts for arrest exist, police must properly exercise discretion by considering all circumstances, including available alternative investigative methods, before resorting to arrest. 3. Failure to utilize available investigative tools (such as section 36C fingerprint comparison) where there is time and opportunity to verify allegations constitutes improper exercise of discretion rendering arrest unlawful. 4. Police have a legal duty to provide prosecutors and courts with all relevant information regarding bail, and breach of this duty can establish legal causation linking the arresting officer to unlawful post-appearance detention. 5. For reasonable and probable cause to exist, prosecutors must have information that would lead a reasonable person to conclude the accused probably committed the offense; a hope that further investigation will remedy evidentiary deficiencies is insufficient. 6. Prosecutors act with animus injuriandi when they foresee they are acting wrongly in prosecuting but continue recklessly regardless of consequences. 7. Withdrawal of charges due to insufficient evidence constitutes termination of prosecution in favor of the accused for purposes of malicious prosecution claims.

The court noted that while the offense of murder is serious and would ordinarily justify arrest over less drastic measures, this does not exempt police from properly exercising discretion and conducting reasonable investigation. The court observed that prosecutors' misunderstanding of when prosecution commences (believing enrollment is not prosecution but merely a 'pre-trial procedure') was fundamentally incorrect and at odds with the National Prosecuting Authority's own policy manual. The court commented that the plaintiff's lack of legal obligation to present himself to police, while technically correct, amounted to implicit admission of avoiding police contact. The court noted with concern that no investigation occurred during the five-month period between Mqetheba's confession and the plaintiff's arrest, and that other potential suspects identified in Mqetheba's statement were never investigated. The judgment implicitly criticizes the practice of opposing bail solely based on seriousness of the offense without proper consideration of all section 60 CPA factors.

This judgment provides important guidance on the proper exercise of police discretion in effecting arrests, even where reasonable suspicion exists. It emphasizes that police must utilize available investigative tools (such as section 36C fingerprint provisions) before resorting to arrest, particularly where there is time and opportunity to verify allegations. The case reinforces De Klerk principles regarding police liability for post-court appearance detention based on legal causation and breach of duty to provide proper information to prosecutors and courts. It clarifies that prosecution commences upon enrollment of charges in court, not only upon trial. The judgment underscores prosecutorial duties to ensure reasonable and probable cause exists before initiating and continuing prosecutions, and that hoping further investigation will remedy evidentiary deficiencies does not constitute reasonable cause. It affirms that withdrawal of charges (not only acquittal) constitutes termination of prosecution in favor of the accused for purposes of malicious prosecution claims.