The court found she was arrested despite there being no evidence linking her to a crime.
A woman who was arrested and detained for more than a month after simply asking for water at a neighbour’s home has been awarded R1.15 million in damages by the Mpumalanga High Court.
Zethu Florence Mkhabela was arrested on 23 July 2020 when she visited Dumisani Mdluli’s premises to ask for water.
She spent 32 days in custody before being released on bail, only to have all charges eventually withdrawn due to lack of evidence.
Judge AJ Shai found both the Minister of Police and the National Director of Public Prosecutions liable for unlawful arrest, detention and malicious prosecution in a judgment delivered on 6 August 2025.
The water visit that led to arrest
Mkhabela testified that her ordeal began innocently when she arrived at Mdluli’s property seeking water.
She said she found Mdluli with an unknown male on the premises.
“As she was there, some people arrived, spoke to Mdluli and went into the house with him. It was at this stage that the unknown male left the premises,” the judgment read.
An argument later broke out between Mdluli and the visitors.
It was then that Mkhabela realised items had been found in the house that were somehow linked to a crime.
“She was taken to various places with Mr Mdluli where items were pointed out and they were later taken to the police station where she was also detained. It was said that she committed housebreaking,” the judgment states.
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Police admit no evidence linked Mkhabela to crime
The case against the police was strengthened by their own witnesses’ admissions.
Constable Shiba, who detained Mkhabela, testified that she was brought to the station by community members.
He then detained her “so that further investigations could take place”.
“There was no evidence that plaintiff was involved in the burglary and that she was found in possession of any stolen items,” the court noted.
The investigating officer confirmed this lack of evidence.
“There was no evidence in the docket linking the plaintiff to either the crime of housebreaking or possession of suspected stolen property,” the judgment reads.
Prosecutor’s questionable decision
The prosecution’s case proved equally problematic. Prosecutor Mrs Msimango testified that after reviewing the docket, she could not charge Mkhabela with housebreaking due to a lack of evidence.
Instead, she incurred charges for possession of suspected stolen property.
She reasoned that “witnesses stated that plaintiff was found on the premises where the suspected stolen property was found”.
The prosecutor later withdrew all charges, acknowledging insufficient evidence.
The court found this deeply troubling. “It boggles one’s mind in understanding on what basis the prosecutrix decided on charging the plaintiff for possession of suspected stolen property.”
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Court finds arrest and detention unlawful
Shai ruled that the arrest violated Section 40(1)(b) of the Criminal Procedure Act, which requires reasonable suspicion of criminal activity.
“It is as clear as daylight from Mr Shiba’s testimony that the jurisdictional factors laid down in section 40(1)(b) have not been met,” the judgment reads.
The judge emphasised that even lawful arrests require proper consideration of detention circumstances.
“Even where an arrest is lawful, a police officer must apply his mind to the arrestee’s detention and the circumstances relating thereto. Failure by a police officer properly to do so is unlawful.”
Extended detention after court appearance
The court addressed the complex question of liability for post-court appearance detention, applying precedent from De Klerk v Minister of Police.
Using the “but-for” test, Shai determined that Mkhabela’s extended detention resulted directly from the initial unlawful arrest.
“But for the unlawful arrest, the plaintiff could not have been detained and be further detained after the first court appearance,” Shai said.
The court noted that any trained police officer should foresee that suspects unable to post bail face extended detention.
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Malicious prosecution proven
Shai found the prosecution malicious, noting the prosecutor’s “wanton disregard for facts not warranting prosecution”.
The court applied the test from Beckenstrater v Rotter and Theunissen, requiring “an honest belief founded on reasonable grounds that the institution of proceedings is justified”.
The judge found that prosecutor Msimango lacked reasonable grounds.
“I cannot find that she genuinely believed that there was a reasonable and probable cause to proceed with the prosecution.
“Her decision to withdraw the charges should have been taken even before bringing the plaintiff to court,” Shai said.
Personal impact and humiliation
Mkhabela testified about the devastating personal consequences of her detention.
She described humiliation in custody, inmates taking her food, inadequate toiletries and having to use T-shirts during menstruation.
Beyond physical hardships, her reputation suffered lasting damage.
“Her good name is tainted in the community; her trade as a traditional leader had been affected as she is now labelled a criminal,” Shai said.
Millions awarded for substantial damages
Shai awarded damages totalling R1.15 million, broken down as follows:
- R250 000 for unlawful arrest;
- R150 000 for pre-court appearance detention;
- R650 000 for post-court appearance detention; and
- R100 000 for malicious prosecution.
“I have herein considered the circumstances of the arrest, the nature and duration of the detention and the fact that the charges were eventually withdrawn,” Shai said in justifying the substantial award.
The court ordered the police minister to pay individually for the unlawful arrest and initial detention.
However, both the minister and NDPP were held jointly liable for the extended post-court appearance detention.
“Both the second defendant’s conduct caused the plaintiff’s post-court appearance detention,” the judge ruled, finding that proper prosecutorial screening would have prevented the extended custody.
The defendants were also ordered to pay legal costs, including counsel fees, on a party-and-party scale.
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