IN THE HGH COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 825/06
In the matter between:
DAVID MNDZEBELE PLAINTIFF
THE COMMISSIONER OF POLICE 1ST DEFENDANT
DIRECTOR OF PUBLIC PROSECTUTION 2ND DEFENDANT
THE ATTORNEY GENERAL 3RD DEFENDANT
Neutral citation: David Mndzebele v The Commissioner of Police (825/06)  SZHC 269 (15 DECEMBER 2016)
Coram: MABUZA -J
Delivered: 15 DECEMBER 2016
Summary: Civil law: Unlawful arrest and detention - Defendant bears onus of proving justification for its conduct on a balance of probabilities if arrest and detention are admitted – Unlawful arrest and detention.
Civil procedure – Claim for damages – For unlawful arrest and detention.
 The Plaintiff herein was a police officer who on or about the 4th February 2005, was arrested and detained by members of the Siteki police and charged with negligent driving and contravention of the Road Traffic Act for drunken driving. The arrest took place at Lonhlupheko.
 He was detained for one day. Subsequently he was prosecuted for the said offences and was acquitted by the Magistrate sitting at Siteki. Thereafter he issued summons against the first Defendant for unlawful arrest and detention and malicious prosecution.
 In the summons he alleges that as direct consequence of the unlawful arrest and detention he was humiliated and disturbed in his physical and emotional tranquility as the place where he was detained was not fit for human habitation.
 Consequently he suffered damages in the amount of E420,000.00 (Four hundred and twenty thousand Emalangeni) made up as follows:
“As a result of the aforegoing, the Plaintiff suffered damages in the amount of E420,000.00 made up as follows;
- Unlawful arrest and detention E150,000.00
- Contumelia E150,000.00
- Discomfort E120,000.00
for which he wants to be paid. In addition he wants to be paid interest at the rate of 9% per annum as tempora morae, costs of suit and further and alternative relief.”
 He says that he sent a lawful demand to the Defendants and now wants the above amounts from the Defendants jointly severally, one paying the other to be absolved.
 In their plea the Defendants deny that the arrest and detention of the Plaintiff was wrongful and unlawful and plead that there was reasonable evidence that the Plaintiff committed the offences that he was charged with namely that: his motor vehicle encroached on the public road, that his motor vehicle had a defective hooter, defective reverse lights and that he drove his motor vehicle while under the influence of intoxicating liquor. All these charges were in contravention to various sections of the Road Traffic Act.
 The Defendants admit that the Plaintiff was prosecuted but deny that the prosecution was malicious nor that there was no evidence to mount such prosecution and put the Plaintiff to the strict proof thereof.
 The Defendants further deny that as a direct consequence of the Plaintiff’s arrest he was humiliated and disturbed in his physical and emotional tranquility. The Defendants deny that the Plaintiff suffered damages in the amount claimed by the Plaintiff or in any amount at all and re-iterate that the arrest and detention were justifiable. They admit having received demand but disclaim liability jointly and severally in any amount claimed by the Plaintiff and put the Plaintiff to the strict proof thereof and pray that the Plaintiff’s claim be dismissed with costs.
 In support of his claim the Plaintiff testified that on the 7th February 2005 he was returning to his home from South Africa. His home is at Mpolonjeni in the Lubombo Region just outside the capital town of Siteki. At Lonhlupheko at the turn off to Siteki at the bus stop he noticed his neighbour Mpendulo Dlamini (PW2) and stopped to offer him a lift. Because he did not wish to crowd the bus stop he stopped beyond the bus stop and called out to PW2. PW2 walked over to the Plaintiff’s motor vehicle and they conversed through the left front passenger window. PW2 was standing on the pavement.
 While they were talking police officers from the traffic department in Siteki arrived and parked alongside the Plaintiff. They alighted and asked him to put on the indicators, hazards, hooter, handbrake and headlamps of his car. One of the officers came up to the Plaintiff and sniffed him and declared that he smelt of alcohol. The Plaintiff responded that he had not drunk any alcohol but the officer would hear none of it. He took the Plaintiff’s car keys and ordered that the Plaintiff get into the police vehicle and transported him to the police station at Siteki. Another officer followed in the Plaintiff’s car.
 Upon arrival at the police station the Plaintiff says that he was charged with driving under the influence of alcohol and other charges that he could not recall. He recalls that he was charged with two charges: driving under the influence of alcohol and defective indicators. He says that he was kept in custody from 6:00 p.m. to 8:00 p.m. Thereafter he was taken to a Magistrate who released him on bail. He says that he was kept in custody at the police cells which were dirty and the blankets smelled of faeces. He says that at a subsequent trial he was acquitted and discharged of all charges.
 He denies that he had parked illegally at the bus stop at Lonhlupheko nor did he obstruct traffic. He further denies that his vehicle had defective hooter and defective reverse lights. He says that the police did not use a breathalyzer to test any alcohol content in his blood nor were any blood tests carried out in order to determine the alcoholic content in his blood stream. The police merely sniffed him.
 He testified that at the time of his arrest he was a constable. He had been with the police for 31 years. He was 50 years old and earned about E6,000.00 per month after deductions. He says that he was hurt by the arrest and being told that his car was defective as he had recently purchased it and on that date had travelled passed four roadblocks in South Africa without any problems. Furthermore he felt humiliated by the arrest and the harsh treatment he received from the police officers who arrested him. He says that his arrest was unreasonable because the police could have issued him with a ticket in respect of the defective motor vehicle.
 He was claiming damages from the Defendants in the amount of E420,000.00 as sued out in the summons.
 When he was cross-examined by Mr. Tsabedze about the state of the police cells he described the police cells as dirty and smelly by the time he was placed there in evening even if they had been cleaned in the morning. He confirmed that from past experience he knew that the cells are normally cleaned in the morning but because of the volume of traffic they were usually dirty in the evening.
 When he was cross-examined about his consumption of alcohol, he stated that he did not drink alcohol at all and even on the date of his arrest he had not drunk any alcohol. He was informed that the police had used a breathalyzer to determine the alcohol on his breath the disposable old fashioned type. He denied the use of any breathalyzer. He was confronted with the presence of a carry pack of six beers that was found in his car and that some bottles were no longer there suggesting that he had drunk them. His response was that he had purchased the beer for his neighbour PW2 with whom they were to celebrate the purchase of the new car. He had purchased cans and not bottles.
 It was put to him that his hooter was defective because when it was pressed it failed to produce any sound; that when the reverse gear was engaged there was no light. He denied both allegations as being untrue. In particular he lamented that when the police officer checked his reverse brake lights he did not invite him to the back of the car so that he too could see the alleged defect. In fact the police officer told him that his car was fine it was only when they got to the police station that the officers changed their story and told him that there were several defects on his car. The police officer initially arrested him because he was allegedly smelling of alcohol.
 When he was asked what the reason of his acquittal was he responded that the Magistrate ruled that there was no evidence to prove that he was drunk. Mr. Tsabedze disputed this and put to him that the Magistrate in acquitting him did not say that the Plaintiff had not taken any alcohol but that there was no medical evidence that the alcohol in his system was above the legal limit.
 He was asked how he would have conducted the driving under influence test using the old breathalyzer. He responded that upon suspicion that a driver had consumed alcohol he would be tested using the breathalyzer. If after blowing into the breathalyzer it confirmed the presence of alcohol he would take the driver to the hospital where the legal limit would then be tested and the driving under alcohol be confirmed. In his case this did not happen.
 It was put to him that he was not issued with a ticket for a defective motor vehicle because he was suspected to be drunk and that the breathalyzer test confirmed the presence of alcohol in his system and hence the arrest on the spot. He denied that he had drunk any alcohol.
 The Plaintiff was asked that when he said that the police had treated him badly what did they actually do to him he responded that even though he was shocked when they parked next to him as he was not parked illegally it is the act of being put in police cells and charged with an offence that he had not committed that he viewed as bad treatment.
 It was further put to him that the reason why the court acquitted him of the charges was not because he had not committed them but because the standard of proof in a criminal matter was very high in that the prosecutor had to prove its case beyond a reasonable doubt. His response was that he assumed that he was acquitted because he was innocent. He also confirmed that there was no bad blood between him and the police officers who arrested him as they were merely doing their jobs. He confirmed that he was in custody for three hours.
 Mpendulo Dlamini (PW2) testified on behalf of the Plaintiff. He confirmed that he was the Plaintiff’s neighbour. He testified that on the material day the Plaintiff found him at the bus stop at Lukhula. The Plaintiff parked his car beyond the bus stop and he went to the car to talk to the Plaintiff after the latter had attracted his attention by hooting. He did not pay any attention to the hoot as he did not recognize the car. Once he realized that the driver was trying to attract his attention he went to the car and found the Plaintiff in the driver’s seat. They talked through the left front passenger window. While exchanging pleasantries a police car drove up and parked next to the Plaintiff’s car.
 He says that the police instructed the Plaintiff to switch on the lights, hooter put on the indicators, reverse lights and brake lights which were all working fine. He was able to observe them because he was standing close to the car. He was not able to see the inside and did not see any alcohol. After the Plaintiff had done that, they asked him to alight and open the boot. Thereafter one officer asked for his car keys and the other instructed him to go into the police vehicle, which he did. He says that the Plaintiffs motor vehicle was completely off the road, so that other cars were able to drive by easily. It did not obstruct other motor vehicles.
 When he was cross-examined he revealed that he only became close to the Plaintiff around 2010 and after that they became drinking buddies. When it was put to him that the Plaintiff did not drink alcohol at all he responded that perhaps that may have been true during 2005 but not since 2010. He stated further that when the police asked the Plaintiff to hoot and engage in reverse gear he saw that the reverse lights were functional as he was standing behind the car. He confirmed that he was surprised that the police charged the Plaintiff with having defective reverse lights and defective hooter as it was the hooter that drew his attention to the Plaintiff’s car in the first place.
 PW2 was asked if he saw the Plaintiff blow into a breathalyzer he replied that he did not see this while at the scene. The Plaintiff’s case closed after PW2 was cross-examined.
 The defence case opened with 4773 Constable Vincent T. Gwebu (DW1) taking the witness stand. He testified that on the 7th February 2005 he together with 3830 Constable Ngcongwane (since deceased) were patrolling MRF, Lukhula–Lonhlupheko public road. At the junction to Siteki they came upon the Plaintiff’s motor vehicle parked in the middle of the road facing Siteki on the left lane. They passed it and made a u-turn in order to find out what was wrong. The Plaintiff’s car moved forward and the police flicked at it to stop and it did so.
 The Police alighted from their car and asked the Plaintiff why he was parked in the middle of the road to which he responded that he was talking to his friend. They charged him for contravening section 92 (1) (i) of the Traffic Act No. 6 of 1965. They tested various items in his motor vehicle and found that his hooter and reverse lights were defective and charged him with contravening regulations 74 and 42 respectively of Traffic Act No. 6 of 1965.
 DW1 says that they did not ask the Plaintiff to alight at the scene in order to observe the reverse lights. Instead they asked a bystander to observe which he did. This was a Mr. Nxumalo who was a mechanic based in Siteki. The police asked Mr. Nxumalo who was a passenger in another car to drive the Plaintiff’s motor vehicle to Siteki.
 DW1 says that while they were talking with the Plaintiff they smelt alcohol on his breath and they asked him if he would undergo a breathalyzer test and he agreed. They took him to their car where he was made to blow into the breathalyzer which tested positive, thereby confirming the presence of alcohol.
 The Plaintiff was charged for driving while under the influence of alcohol under section 116 (1) of the Road Traffic Act as read with section 5 (as amended).
 After the test, DW1 says that they returned to the Plaintiff’s car to check on his belongings and found a beer carry pack which had four beers remaining on the front passenger seat. He says that the Plaintiff was in all respects charged after he was cautioned in terms of the judges’ rules. The Plaintiff was instructed to board the police car and they rode with him to the police station at Siteki. Upon arrival at the police station he was detained for a few hours while arrangements were made for a Magistrate to visit the police cells so that the Plaintiff could be released on bail. He was granted bail in the sum of E500.00.
 DW1 stated that it was not true that after conducting the tests on the Plaintiff’s car, the car was found to have no defects. He denied that they ill-treated the Plaintiff. He testified further that the police cells and the blankets were clean and that other than the Plaintiff there were other people in the police cells. Consequently there was no need for the Plaintiff to feel humiliated nor for his dignity to be impaired.
 He further stated that PW2 could be correct when he testified that he did not see when the police officer’s conducted the breathalyzer test because PW2 was at a distance and it was conducted inside the police car. Informed that PW2 testified that he did no see the beer cans, DW2 stated that it was not possible not to see them as they were not hidden but on the front passenger seat and that the Plaintiff had admitted that they belonged to him.
 The questions that were put to DW1 were in essence a repetition of the Plaintiff’s evidence namely:
- that he had not parked in the road but outside the road;
(ii) that the hooter, and reverse lights were in good working order;
that no breathalyzer tests were conducted on the Plaintiff;
(iii) that the Plaintiff was not charged at the scene but at the police station;
- that the holding cells were dirty;
- that the blankets were dirty and smelt of urine; that the Plaintiff felt humiliated and unbalanced emotionally due to being kept in the holding cells;
- that no blood tests were carried out in order to test the alcohol levels in the Plaintiff’s blood; that the Plaintiff was not cautioned.
Of importance though were the questions that were not put to the Plaintiff namely that Mr. Nxumalo witnessed the test on the reverse lights and that he drove the Plaintiff’s motor vehicle to Siteki from the scene. (However nothing much turns on this evidence).
 In re–examination DW1 opined that the smell of urine at the Siteki police station may have come from the toilets which were directly opposite the holding cells.
 Vusumuzi Musa Maziya (DW2) testified that he prosecuted the Plaintiff’s case. The charges against the Plaintiff included stopping his motor vehicle on the road; defective hooter and defective reverse lights and driving under the influence of alcohol. The charges preferred against the Plaintiff were brought under the now repealed Act No. 6 of 1965 which did not require that the Plaintiff’s blood be tested but which required that if there is no other evidence other than the breathalyzer test the Plaintiff be taken to hospital for medical tests. He stated that the hospital test only verified whether the blood had drugs or alcohol.
 DW2 gave evidence that he called two police officers as state witnesses who were on duty when the Plaintiff was arrested; a Mr. Gwebu and Mr. Ngcongwane. He stated that the Plaintiff was acquitted but he was not privy to the reasons for his acquittal as he was not present in court when the judgment was delivered. Thereafter the Defendants closed their case.
 It has been held is a plethora of cases in our jurisdiction and it is procedural that the Defendants in such cases as this one bear the onus of proving that the arrest was lawful.
 In casu the arrest of the Plaintiff was done in terms of section 22 (a) of the Criminal Procedure and Evidence Act 67/1938 (as amended). Section 22 (a) reads as follows:
22. Every peace officer and every other officer empowered by law to execute criminal warrants is hereby authorized to arrest without warrant every person-
(a) who commits any offence in his presence.
 In casu the Plaintiff committed the offences complained of in the presence of the police along the Siteki–Lonhlupheko public road. According to the 1st Defendant’s witness, one Thulani Vincent Gwebu (DW1), the police officer who effected the arrest, when they were conducting their regular traffic patrol along the Siteki-Lonhlupheko Public road they came across the Plaintiff who had stopped his car in the middle of the road at Lonhlupheko-Siteki bus top and was talking to another person at the bus stop. It was the evidence of DW1 that when they approached the bus stop the Plaintiff started to drive off from the bus stop and the police had to make a u-turn and flicked for the Plaintiff to stop and he stopped a few metres away from where his car had been stopped.
 DW1 told the court that he and his colleague, who is now late, introduced themselves to the Plaintiff as police officers and then asked to conduct an on the spot test on the roadworthiness of Plaintiff’s car. DW1 mentioned that Plaintiff was asked to press the hooter of his car and the hooter did not make any sound. Next, Plaintiff was asked to engage the reverse gear of his car and again the reverse lights did not give light. He was then charged with driving an unroadworthy motor vehicle on a public road in contravention of the Road Traffic Act.
 It was DW1’s evidence further that when the Plaintiff talked to them his breath reeked or smelt of alcohol. Plaintiff was then asked to come out of his car to the police motor vehicle where the police asked to conduct a breathalyzer test and he obliged. The test proved positive and the Plaintiff was then charged with driving under the influence of alcohol. DW1 informed the court that they then took Plaintiff’s possessions from his car which among other things included four unopened cans of beer in the front passenger seat of Plaintiff’s car. When asked by the Police whose beer this was Plaintiff admitted that these belonged to him.
 It is my considered view that the arrest of the Plaintiff was lawful and fell squarely within the purview of section 22 (a) of the Criminal Procedure and Evidence Act (as amended).
 If the arrest of the Plaintiff was lawful it follows that his subsequent detention was prima facie lawful. It is trite law that where the detention is lawful the Plaintiff bears the onus to show by evidence that there was a stage when his detention became unlawful. There is no such evidence tendered by the Plaintiff to that effect.
 The period for which a person arrested without a warrant may lawfully be kept in custody is regulated by section 30 (1) and (2) of the Criminal Procedure and evidence Act (as amended). The section reads as follows:
30. (1) No person arrested without a warrant shall be detained in custody for a
longer period than in all the circumstances of the case is reasonable.\
(2) Unless such person is released by reason that no charge is to be brought
against him, he shall, as soon as possible, and without undue delay, be brought before a magistrate’s court having jurisdiction upon a charge of an offence.
 It is also regulated by section 16 (1) and 16 (3) (b) and (4) of the
Constitution. These provisions state:
- A person shall not be deprived of personal liberty save as may be authorized by law in any of the following cases –
(b) Upon reasonable suspicion of that person having committed, or
being about to commit, a criminal offence, shall, unless sooner released, be brought without undue delay before a court.
(4) Where a person arrested or detained pursuant to the provisions of subsection
(3), is not brought before a court within forty-eight hours of the arrest or
detention, the burden of proving that the provision of subsection (3) have
been complied with shall rest upon any person alleging that compliance.
 The Plaintiff claims that he was detained for one day. However, the evidence by DW1 is that Plaintiff was arrested around 6 pm and subsequently appeared before a magistrate at around 8.30 p.m. on that very same evening. Plaintiff in his evidence also conceded that he did not spend the night in the police cells but was taken before a magistrate after he was in detention for 4 hours.
 In my considered opinion the 4 hours that the Plaintiff spent in custody is reasonable and falls squarely under the above stated provisions of the law. In the case of Mavi Masina v The Commissioner of Police and Another supra, the court stated:
“Detention following a lawful arrest only becomes unlawful when it is no longer reasonable in all the circumstances of the particular case”.
 I now turn to the Plaintiff’s allegation that his prosecution was malicious. For the Plaintiff to succeed in his claim that his prosecution was malicious he must allege and prove-
- that the Defendants set the law in motion (instigated or instituted the proceedings);
- that the Defendants acted without reasonable and probable cause;
- that the Defendants acted with malice (or amino injuriandi); and
- that the prosecution has failed.
 In Minister of Justice and Constitutional Development v Moleko  3 All SA 47 (SCA) it was stated that:
“the Defendant must thus not only have been aware of what he or she was doing in instituting or initiating the prosecution but must at least have foreseen the possibility that he or she was acting wrongfully, but nevertheless continued to act, reckless as to the consequences of his or her conduct (dolus eventualis). Negligence on the part of the Defendant (or, I would say, even gross negligence) will not suffice.”
 The malice must be that of the person responsible for initiating the prosecution against the Plaintiff. In this case, the Plaintiff was formally charged with contravening the Road Traffic Act on the 4th February 2005 by members of the Royal Swaziland Police Force at Siteki Police Station. That is the stage at which the proceedings were initiated. The member of the Royal Swaziland Police who charged the Plaintiff did so on the basis that the offences in question were committed in his presence.
 Defendants have during the course of the trial succeeded in placing it upon the Plaintiff that there was reasonable and probable cause for the police to cause Plaintiff’s arrest in that at the time of his arrest Plaintiff reeked of alcohol and further four unopened cans of a carry pack of beer were found on the front seat of his car. Further when he was asked to blow his hooter it gave no sound and his car’s reverse lights gave no light when the reverse gear was engaged.
 I now turn to discuss the law regarding the issue of damages claimed by the Plaintiff. It is trite law that a person suing for damages must lead evidence which will enable the court to assess the amount of damages he/she allegedly suffered, if any. In other words, Plaintiff must tell the court what damages he suffered and how they are made up.
 The court will only be able to make an award for damages if on the evidence as led by the Plaintiff it is clear that he suffered the loss alleged, regard being had to previous awards in similar cases.
 In casu nowhere does the Plaintiff say how he arrives at a particular amount. He does not say how he arrives at the sum of E150,000.00 (One hundred and fifty thousand Emalangeni) in respect of unlawful arrest and detention. Similarly, there is no evidence to substantiate the claim for E150,000.00 (One hundred and fifty thousand Emalangeni) in respect of humiliation and loss of dignity, nor is there any evidence in respect of the discomfort he allegedly suffered.
 The Plaintiff in his evidence in chief stated that the cell he was put in was dirty and it had a terrible smell. However, under cross-examination he stated that in his experience police stations have cleaners who clean these cells. He conceded that the cells might have been cleaned but due to the fact that other accused persons were put in there it could have become dirty by the time when he was put in the cell.
 The Plaintiff herein failed to bring evidence to substantiate his claim for damages. Reference is made to the cases of Lazarus v Rand Steam Laundries (Pty) Ltd 1958 (3) SA 49; Odendaalsrust Golden General Investments & Extensions Ltd v Nande N.O. 1958 (1) SA 381 and the case of Rangeland Ltd v Henerson 1955 (3) 134, which are all authorities for the proposition that where a Plaintiff, like in the instant case, has failed to bring evidence to substantiate his claim for damages, he should not be awarded any damages whatsoever.
 I now turn to consider whether the record of the criminal proceedings against the Plaintiff is admissible as evidence in these proceedings.
 The issue before this Honourable Court is whether the arrest and detention of Plaintiff lawful and the subsequent prosecution of the Plaintiff malicious. If the record of proceedings in the criminal court is sought to be used as evidence of the fact that the police had no reasonable and probable cause to arrest the Plaintiff hence his subsequent acquittal, then the rule in Hollington v F. Hewthorn & Co. Ltd  KB 587 (C.A) is applicable and the record is inadmissible.
 However, if the record is sought to be admitted not to prove a certain fact in issue, then the record of the criminal proceedings in the magistrate’s court against the Plaintiff would be admissible. The reasons for Plaintiff’s acquittal on the charges pereferred against him are irrelevant for purposes of deciding whether his arrest and detention was lawful and his prosecution malicious. See the case of Richard Clyde Muir v Winnie Muir & Others Civil Case No. 1468/2009 (HC) [Unreported] at page 18 – 21 paragraph  – .
 In all the circumstances of the above case the Plaintiff’s claim is dismissed with costs.
JUDGE OF THE HIGH COURT
For the Plaintiff : Mr. T. Dlamini
For the Defendants : Mr. B. Tsabedze