Mojalefa Glen Zimu v The Minister of Police (A94/2023) [2025] ZAFSHC 175 (13 June 2025)

Case Note

Zimu, Mojalefa Glen v The Minister of Police
Neutral citation: Mojalefa Glen Zimu v The Minister of Police (A94/2023) [2025] ZAFSHC 175 (13 June 2025)
Free State Division, Bloemfontein – Coram: Mbhele AJP, Van Zyl J & Greyling-Coetzer AJ – Heard 24 March 2025, Delivered 13 June 2025

Reportability

This judgment is marked reportable because it revisits, refines and applies the Constitutional Court’s jurisprudence on post-first-appearance detention flowing from an unlawful arrest. In particular, it interrogates the limits of the South African Police Service’s liability after an arrested person has been brought before a magistrate, engaging intensively with De Klerk v Minister of Police and subsequent appellate authority. The decision is significant for practitioners because it clarifies how pleaded admissions, causation principles and public-policy factors interact when a plaintiff seeks damages for the entire period of detention. It also provides instructive guidance on the effect of defective pleadings, the scope of pre-trial admissions and the proper approach to condonation and reinstatement of lapsed appeals in the High Court.

Cases Cited

• Harlech-Jones Treasure Architects CC v University of Fort Hare 2002 (5) SA 32 (E)
• De Klerk v Minister of Police [2019] ZACC 32; 2020 (1) SACR 1 (CC)
• Minister of Police and Another v Erasmus [2022] ZASCA 57
• Mahlangu and Another v Minister of Police [2021] ZACC 10; 2021 (2) SACR 595 (CC)
• Woji v Minister of Police [2014] ZASCA 108; 2015 (1) SACR 409 (SCA)
• Minister of Safety and Security v Tyokwana [2014] ZASCA 130; 2015 (1) SACR 597 (SCA)
• Botha v Minister of Safety and Security; January v Minister of Safety and Security [2011] ZAECPEHC 12; 2012 (1) SACR 305 (ECP)
• AA Mutual Insurance Association Ltd v Biddulph and Another 1976 (1) SA 725 (A)
• Rance v Union Mercantile Co. Ltd 1922 AD 312
• Canaric NO v Shevil's Garage 1932 TPD 196
• Saayman v Road Accident Fund [2010] ZASCA 123; 2011 (1) SA 106 (SCA)
• Fourie v Sentrasure Bpk 1997 (4) SA 950 (NC)
• Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA)
• First National Bank of SA Ltd v Perry NO 2001 (3) SA 960 (SCA)
• Gordon v Tarnow 1947 (3) SA 525 (AD)
• Motala v Master, North Gauteng High Court [2019] ZASCA 60; 2019 (6) SA 68 (SCA)

Legislation Cited

Constitution of the Republic of South Africa, 1996 – section 12
Criminal Procedure Act 51 of 1977 – sections 40(1)(b), 40(1)(h) & 51
Standing Order (General) 341 of the South African Police Service
Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 – section 3(1)

Rules of Court Cited

Uniform Rules of Court – Rules 49(2), 49(6)(a) & 49(7)(a)

HEADNOTE

Summary

The appellant, Mr Mojalefa Glen Zimu, was unlawfully arrested without warrant on 20 June 2020 and detained until his first court appearance on 22 June 2020, after which the magistrate postponed the matter and remanded him until 29 June 2020 when bail was granted. The trial court awarded R30 000 for the initial detention only. With leave limited to liability for the post-appearance period, the appellant appealed, contending that specific admissions in the respondent’s plea bound the Minister to the entire nine-day detention and that De Klerk mandated such liability.

The Full Court reaffirmed that although arrests were conceded to be unlawful, admissions must be clear, unequivocal and viewed holistically within all pleadings. Paragraph 10.2 of the plea expressly alleged that continued detention flowed from the magistrate’s order, preserving the dispute on causation. On the facts, the investigating officer recommended bail, completed the A6-form accordingly and did not oppose release; there was no evidence she foresaw or intended further incarceration. Public-policy considerations, separation of powers and absence of culpable post-arrest conduct broke the causal chain. Condonation for multiple procedural defaults was granted, but the appeal on merits failed.

Key Issues

The court interrogated whether pleaded admissions extinguished the need for evidence on causation, whether the police’s conduct factually and legally caused detention after the first appearance, and how De Klerk should be applied. It also addressed principles governing reinstatement of a lapsed appeal and the proper scale of costs.

Held

The Full Court held that the admissions did not unequivocally concede unlawfulness of the entire detention; the respondent was entitled to lead evidence. The police’s wrongful arrest was a factual cause of subsequent events, but legal causation did not extend liability beyond 22 June 2020 because the magistrate’s remand constituted an intervening act, unanticipated by the investigating officer who had favoured bail. Consequently, the appeal was dismissed with costs on Scale B.

THE FACTS

The narrative begins on 20 June 2020 when members of the South African Police Service arrested the appellant at his residence on allegations of pointing a firearm, malicious damage to property and assault GBH. No warrant was obtained. He was taken to Phuthaditjhaba police cells where he remained over the weekend.

On 21 June 2020, Investigating Officer Constable Mokoena completed the SAPS A6 bail form. After verifying that the appellant had no pending cases, she amended her initial notation and recommended that he could be released on bail. The completed docket, reflecting a non-opposition stance, was dispatched to the prosecutor.

The appellant first appeared in the Phuthaditjhaba Magistrate’s Court on Monday 22 June 2020, represented by a lawyer. The court, acting on an unspecified request or its own motion, postponed the matter to 29 June 2020 for a formal bail application and ordered the appellant detained at Harrismith Correctional Facility. On 29 June 2020 he obtained bail of R500 and was later cleared when charges were withdrawn.

THE ISSUES

The central question was tightly circumscribed: Is the Minister of Police liable in delict for the appellant’s detention from 22 June 2020 to 29 June 2020?

To resolve that question the court had to decide, first, whether admissions in paragraphs 4.2 and 4.3 of the particulars of claim, read with the pre-trial minute, constituted a binding concession of liability for the entire detention. Secondly, it had to apply factual and legal causation tests, as refined in De Klerk, to determine whether the police’s wrongful arrest remained a proximate cause after the magistrate’s remand order. Finally, the court considered whether any culpable omission by the investigating officer influenced the prosecutor or magistrate in remanding the appellant.

ANALYSIS

In three inter-related paragraphs the court canvassed the nature of pleadings. It emphasised that an admission must be clear, unequivocal and intended to remove an issue from contention. While the respondent admitted that SAPS members transported and detained the plaintiff until 29 June 2020, paragraph 10.2 of the plea expressly stated that detention after court appearance was “at the instance of the court”. That preserved the very dispute the appellant sought to foreclose.

Turning to evidence, the court accepted Constable Mokoena’s testimony that she completed the bail form favouring release and sent the docket to the prosecutor. She did not attend court because, in accordance with SAPS practice, attendance is unnecessary when bail is not opposed. There was no indication that she withheld exculpatory information or misled the prosecutor as occurred in Woji, Tyokwana, Mahlangu or Erasmus.

Applying the dual test for causation, the court found factual causation satisfied on a simple “but-for” basis: without the unlawful arrest the appellant would not have been in court. Legal causation, however, required a policy-based evaluation. The magistrate’s independent decision to postpone constituted a novus actus interveniens, breaking the chain because it was neither foreseen nor intended by the investigator and could not reasonably have been anticipated given her favourable bail recommendation. The separation-of-powers consideration which troubled the minority in De Klerk thus tipped the scales.

REMEDY

The court upheld the trial award of R30 000 limited to the period 20 – 22 June 2020 and refused to extend damages. It granted four forms of condonation, reinstated the appeal for determination, and then dismissed it on the merits. Costs followed the result, including counsel’s fees on Scale B.

LEGAL PRINCIPLES

First, an admission in pleadings binds a party only when it is explicit or necessarily implied; courts analyse the whole set of pleadings and pre-trial agreements before concluding that an issue has been removed.

Secondly, liability of the police for post-appearance detention depends on legal causation informed by policy, fairness and justice. Even where an arrest is unlawful, a subsequent remand may break the chain if the police neither foresaw nor promoted continued detention and provided exculpatory information to the prosecutor.

Thirdly, investigating officers carry a constitutional and statutory duty to place all material facts before the prosecutor to enable an informed bail decision. Compliance with that duty, as here, may absolve the Minister from liability for further detention.

Fourthly, reinstatement of a lapsed appeal is discretionary. Adequate explanation for non-compliance, absence of prejudice, and reasonable prospects of success must be demonstrated; nevertheless, the merits remain decisive.

Finally, costs ordinarily follow the event and will include higher-scale counsel fees where the complexity of argument and volume of authority so justify.