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LESSON TO LAW ENFORCEMENT TO APPLY THEIR MINDS: A LEGAL ANALYSIS OF THE Mkhabela v Minister of Police & NDPP

  • chrisdikane
  • Jan 3
  • 5 min read

First and foremost, compliments to the New Year, 2026. We made it baby, we here baby. We learn from our shortcomings in 2025 and improve on our victories in 2026. I read a post on linkedin which said and i am paraphrasing, in 2025 we learned how much we can take, and 2026 we get what we want. And i hope this year is the year everyone gets what they want and have desired since they were children, dreaming. So shall it be.


Now with the Kumbaya stuff out the way, dont get it twisted, i love kubaya stuff, no shade on kubaya stuff. Lets get straight into the main course.


Getting a bag from the state because they failed to exercise their powers according to their legislation is something that elicits mixed emotion. Its great because someone is getting justice from the injustice cause by the state but on the other hand, that bag that is paid to restore justice from an injustice is tax payer money. I am specifically referring to the law enforcement industrial complex, in particular the South Africa Police Service and the NPA. I would like to take a quick moment and proclaim that, i am not shading or disparaging our law enforcement. This isnt a blog post spewing negativty and complaints. This is a brief legal analysis which i hope can bring insight into some of the happenings in the world of law. The idea for this one came after i read the abovementioned case of Mkhabela V State. I realised from reading the facts of the case and judgment that our law enforcement sometimes folds it in and employs a "fuck it we ball" mentality wherein its goes to the end product without proper due diligence and taking the time to ensure that they follow procedure and process. I do get it, sometimes the heat of the moment calls for swift action, which could lead to arresting a dude without proper probable cause or satisfying the requirements. That leads to the problem of the Ministry of Police having legal action instituted against them because they, as the Americans would say, " Shit the bed" .


Lets delve in the legal analysis of the judgment of Mkhabela v Minister of Police & NDPP. We commence with the facts of the matter, and yes, criminal judgments are are reading a novel, straight unbelievable stuff.



1. Facts of the Matter

Zethu Mkhabela was arrested on 23 July 2020 after being found on the premises of another individual where she had stopped to ask for water. Community members apprehended her and took her to the police station, alleging she was involved in a housebreaking after stolen items were found in the house. The arresting officer, Mr. Shiba, detained her for "further investigation" despite admitting there was no evidence linking her to the crime or the possession of stolen goods. She remained in custody for over a month—from 23 July to 24 August 2020—because she could not initially post the R1,000 bail fixed at her first appearance. The charges were eventually withdrawn due to a lack of evidence.


2. Cause of Action

The plaintiff instituted a claim under the actio iniuriarum for:

  • Unlawful Arrest: Interference with physical liberty without a warrant and without fulfilling the necessary jurisdictional facts.

  • Unlawful Detention: Continued deprivation of freedom without just cause.

  • Malicious Prosecution: The intentional and wrongful institution of criminal proceedings without reasonable and probable cause.


3. Issues for Determination

The High Court had to decide:

  1. Whether the initial arrest and detention were lawful under Section 40(1)(b) of the Criminal Procedure Act (CPA).

  2. Whether the defendants were liable for the plaintiff’s continued detention post-court appearance.

  3. Whether the National Director of Public Prosecutions (NDPP) acted with animus iniuriandi (malice) in prosecuting the plaintiff for possession of suspected stolen property when no evidence existed.


4. Applicable Legal Rules and Principles

  • Section 40(1)(b) of the CPA: A peace officer may arrest without a warrant if they reasonably suspect a person has committed a Schedule 1 offense.

  • Legal Causation (De Klerk v Minister of Police): The police are liable for post-appearance detention if the further detention was a foreseeable consequence of the initial unlawful arrest.

  • Section 12(1) of the Constitution: Guarantees the right to freedom and security, including not being deprived of liberty arbitrarily.

  • Malicious Prosecution Requirements: The plaintiff must prove the defendant set the law in motion, acted without reasonable/probable cause, acted with malice, and that the prosecution failed.


5. Court’s Application of Legal Rules

The court found that the arresting officer did not meet the jurisdictional requirements for a lawful arrest because he detained the plaintiff despite noting the absence of any link between her and the offense. Regarding the NDPP, the court noted that the prosecutrix (Mrs. Msimango) enrolled the case despite knowing there was no evidence of housebreaking, choosing instead to charge the plaintiff with "possession stolen property" simply because she was on the premises. The court applied the "but-for" test (factual causation), concluding that without the unlawful arrest and the prosecutor's failure to screen the docket, the plaintiff would not have been detained.


6. Ratio Decidendi

The court established that:

  • An arrest made solely for "further investigation" is inherently unlawful if the officer does not possess a reasonable suspicion based on evidence at the time of the arrest.

  • A magistrate's remand order does not break the chain of legal causation if the police officer should have foreseen that the unlawful arrest would lead to continued detention.

  • A "wanton disregard" for the absence of evidence by a prosecutor constitutes indirect malice or animus iniuriandi, satisfying the requirements for malicious prosecution.


7. Court Order

The court delivered the following order:

  1. 1st Defendant (Police): Ordered to pay R250,000 for unlawful arrest and R150,000 for pre-court detention.

  2. Joint and Several Liability: Both defendants ordered to pay R650,000 for the post-court appearance detention.

  3. 2nd Defendant (NDPP): Ordered to pay R100,000 for malicious prosecution.

  4. Costs: Awarded on Scale C (a higher tariff for complex matters) including costs of counsel.


8. Impact of the Judgment

On Future Litigation: This judgment reinforces the De Klerk principle, making it increasingly difficult for the state to argue that a Magistrate’s decision to remand an accused absolves the police of liability. It places a heavy burden of "due diligence" on prosecutors to screen dockets immediately, suggesting that institutional failures in the NPA can lead to significant damages for malicious prosecution.

On Lived Realities: The judgment highlights the severe "human cost" of arbitrary state power, noting the plaintiff's humiliation in custody, her inability to access toiletries (having to use T-shirts during ovulation), and the permanent taint on her reputation as a traditional leader. It serves as a check against "sweep-up" arrests where innocent bystanders are detained alongside suspects without individualised evidence.



DISCLAIMER: THIS DOES NOT CONSTITUTE LEGAL ADVISE NOR ACT AS LEGAL AUTHORITY FOR THE SUBJECT DISCUSSED. THIS IS BASED ON AN IDEA, A CURIOSITY AND DOOM SCROLLING ON SAFLII. CONSULT YOUR ATTORNEY, PREFERABLY LOCAL ATTORNEY AND TAKE IT FROM THERE



 
 
 

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