THE HIGH COURT OF SWAZILAND
the matter between:
MALINGA : APPELLANT
COMMISSIONER OF POLICE : 1ST RESPONDENT
MOSES DLAMINI : 2ND RESPONDENT
GENERAL : 3RD RESPONDENT
1ST, 2ND & 3RD RESPONDENTS
THE PLAINTIFF : MR. SIGWANE
(plaintiff in the Count a quo) in this matter instituted an action
for damages against the above named three Respondents or Defendants
as they were in the Court a quo and as I shall refer to them herein.
the particulars of claim Plaintiff makes the following allegations:
or about the 10th day of August, 1994 at Lobamba area Plaintiff was
arrested without a warrant by 2nd Defendant and charged with the
non-bailable offence of murder. 2nd Defendant was
within the course and scope of his employment as a police officer.
Plaintiff was detained at Lobamba Police Station and was subsequently
remanded in custody at Sidwashini Prison for a period of nine months
and twenty-six days, whereupon he was released on the 6th day of
June, 1995 after the charge against him was withdrawn.
a result of the aforegoing. Plaintiff suffered loss or damages in the
amount of E443 571.42 (Four hundred and forty three thousand five
hundred and seventy one Emalangeni and forty two cents) made up as
loss of income E 15,000.00
loss of freedom, loss of dignity and personal liberty E428,571.42
notice of the proceedings was given to Defendant in terms of the
Police Act. A copy of the notice is annexed as annexure "A'.
of the sum of E443,571.42
thereon at the rate of 9% per annum at tempore morae.
and/or alternative relief.
of the Defendants gave notice of an intention to defend or took any
steps to contest the action.
matter was then set down for default judgment in terms of Rule of
Court 31. In view of the fact that the claim was for the payment of
unliquidated damages, evidence was led in order to enable the Court a
quo to determine the quantum of the damages sustained by the
will deal later with the evidence led in this regard. The question of
damages did not, however. engage the consideration of the High Court
at the hearing. The learned Judge (Matsebula J) dismissed Appellant's
action on two grounds. These ware that he had failed to prove "that
the persons cited are the proper Defendants" and "that the
arrest and detention was unlawful."
reasoning which sustained this decision is reflected in at pages
30-31 of the record and reads as follows:
now turn to the merits of the Plaintiff's claim. The arrest with or
without a warrant is
In this case in view of the contents. of exhibit 'B' whose contents
clearly indicate that there were allegations that Plaintiff had
assaulted the complainant and had been charged with attempted murder
and when complainant died the charge became one of murder - a
fact that the charge against Plaintiff is subsequently withdrawn has
nothing to do with 1st and 2nd' Defendants that is the Commissioner
of Police and the Sergeant. In fact to this extent they have been
wrongly cited. After Plaintiff was transferred to the Sidwashini
Prison he was removed from the care and custody of 1st and 2nd
Defendants and was under the jurisdiction of the Director of Public
Prosecutions who subsequently decided after the detention of the
Plaintiff for the nine (9) months 26 days to withdraw the Change.
Plaintiff issued summons against 1st and 2nd Defendants for the seven
days he was in their custody at the Lobamba Police cells that would
be a whole lot different matter.
that is not the case here.
cases Mr. Sigwane referred the court to are irrelevant for the
purpose of this judgment. That is MABONA AND ANOTHER VS MINISTER OF
LAW AND ORDER AND OTHERS 1988(11) SA @654-655 this' deals inter alia
with arrest without a warrant and reasonable suspicion in effecting
such arrest. As I have already pointed out exhibit 'B' disposes of
the reasonable suspicion and unlawful arrest.
second case of Mr. Sigwane referred the court to is that of
RAMAKULUKASHA VS COMMANDER VENDA NATIONAL FORCE which deals with the
procedure followed in effecting arrest without a warrant, wrongful
arrest, and detention and malicious prosecution.
onus is in these matters is always on the Plaintiff to prove on a
balance of probabilities that the persons cited are the proper
Defendants and also to prove that the arrest and detention was
the Plaintiff has failed to prove and the court dismisses the action.
As there were no representatives on behalf of the 1st, 2nd and 3rd
Defendants the court makes no order as to costs."
should explain that exhibit 'B' referred to by the learned Judge, is
a copy of a newspaper article handed in by the Plaintiff as evidence
of the fact that he had been publicly identified as the accused in a
murder case involving the stabbing to death of one Khombisile
Dlamini. It was introduced as evidence contributing to the nature and
extent of the injuria sustained by Plaintiff pursuant to his arrest
is clear from the record of the evidence led and the argument
advanced that the only matter in issue was the quantum of the damages
sustained by the Plaintiff. Ex facie record, at no stage - either in
evidence or in argument -did the learned Judge raise the issues on
which he non-suited the Plaintiff.
was clearly irregular for the Judge to decide the matter on issues
which were never raised in the pleadings, in the evidence or in
argument. He denied Plaintiff the opportunity of dealing with these
concerns. I believe that had he done so he would have been disabused
of his views because they are clearly untenable.
must be borne in mind that the Defendants saw fit not to defend this
action. They did not contest their locus standi, neither did they
contest their liability for the arrest and detention nor did they
contend that such liability was
by the fact that Plaintiff could not be granted bail by virtue of the
fact that he had been indicted in respect of a non-bailable offence.
any event, this latter contention is clearly insupportable. It was
the fact of his initial arrest, (which on the facts of this case must
be presumed to have been unlawful), that set in motion the train of
events culminating in the lengthy incarceration of the Appellant.
evidence in this regard was uncontested. It established that
Plaintiff was arrested without a warrant and that he was not informed
of the reason for his arrest at the time of his apprehension or
intital incarceration. Indeed there can be no doubt that the onus to
justify the legality of the arrest rested on the Defendants. No
attempt was made to prove that reasonable grounds existed to suspect
that Plaintiff had committed the offence In question. There can
therefore be no doubt:-
Defendants bore the onus to prove that the arrest without warrant
was justified. See BRAND VS MINISTER OF JUSTICE AND ANOTHER 1959(4)
@712 and 718(A); MINISTER OF LAW AND ORDER AND OTHERS VS HURLEY AND
ANOTHER 1986(3) 568(A) AT 587-589(A) and the judgment of HANNAH C.J.
IN THE HIGH COURT OF SWAZILAND IN ZIYANE VS THE ATTORNEY GENERAL
N.O. (judgment delivered on 23/11/1990); and
this onus was not discharged.
have great difficulty in understanding the reasoning of the trial
Judge in respect of the identity of the Defendants and whether they
were correctly cited. In essence what the Plaintiff did was to
identify eo nomine those representatives of the Crown who could be
held accountable for the actions of their officers or officials.
Clearly the initial arrest was made by a police officer, the judicial
process is under the control of the Attorney General and the
Commissioner of Prisons is accountable for those detained in prison.
More 'especially as they never challenged their accountability and
the point taken mero motu by the Court a quo was never aired in
evidence or in argument, it was grossly irregular to have dismissed
Plaintiff's action on this ground.
appeal succeeds and judgment is entered for the Plaintiff. The only
question left is the quantum of the damages to be awarded. Appellant
has asked us not to delay this matter further by sending it back and
asked us to quantify the amount of the damages sustained. We proceed
to do do. The facts proven are the following:
is 36 years old. He is a married man with children. He worked briefly
as an assistant librarian and for some years as what he called a
"technical storeman" in the Swaziland Defence
At the time of his arrest he was together with his mother in the
business of buying second-hand clothes in South Africa and selling
these locally. He testified that from" this business he was
generating an income of "El,600 a month or more depending on the
time." This income he forfeited during the period of his
incarceration i.e. 9 months and 26 days. This pecuniary loss is
therefore readily ascertainable i.e. the amount claimed of
general damages are more difficult to determine. We have had due
regard to other cases both in neighbouring countries and in this
Kingdom. However, each case must depend on its own facts. During
Appellant's detention at the police cells immediately after his
arrest, he was incarcerated in reprehensible conditions and
circumstances. He was obliged to sleep in a small room, 2x3 meters in
extent with a dozen people or more. The blanket he was given was "so
worn out that you could see through it,"
was a small mat on the floor on which he slept. The toilet conditions
were, as described by him, a constant affront to his dignity. For the
7 days he was in this cell, he was never allowed to wash or to
receive visits from his relatives. He was only taken to Court at the
expiry of this 7 day period. The charge against him was withdrawn
nearly 10 months later without any explanation. When he was
his wife had disappeared. At the time he testified he was still
unaware of her whereabouts.
newspaper in question never reported the withdrawal of the charge
against him. He contended that he has lost considerable status in his
community as a result of the cloud that still hangs over his head.
is our view that an appropriate award in these circumstances as
general damages would be the sum of E50,000.00.
making this order we should refer to the fact that Counsel conceded
that it was customary, and probably advisable, that - in addition to
alleging that the arrest was without a warrant - to aver that it was
also wrongful and unlawful. He accordingly moved an amendment to
include these averments in the particulars of claim. This is in the
nature of a formal amendment and we do not consider that any
prejudice would be caused to the Defendants. We therefore, grant the
application to amend the Plaintiff's particulars of claim
the result the appeal Is upheld. The order dismissing the action is
set aside. In place thereof the following order is granted:-
are ordered to pay the Plaintiff jointly and severally, the one
paying the other to be absolved, the amount of E65,000.00 as damages
for wrongful and unlawful arrest and detention and to pay the costs
of suit both in this Court and in the Court below.
in open Court on this 7th day of October 1996