Mokone v Minister of Police and Another (20196/2023) [2025] ZAWCHC 479 (16 October 2025)

Case Note

Mokone v Minister of Police and Another (Case number 20196/2023) 2025-10-16 (Western Cape Division, High Court)

Reportability

This judgment is reportable because it clarifies the interaction between section 40(1)(b) (warrantless arrest) and section 49 (use of force) of the Criminal Procedure Act 51 of 1977 in the context of high-speed police pursuits and the use of live ammunition. It articulates the evidential burden on the State to justify both the deprivation of liberty and the resort to deadly force, drawing heavily on constitutional jurisprudence that views personal freedom and bodily integrity as foundational values. The decision also provides guidance on vicarious liability for delictual claims against the Minister of Police where unidentified SAPS members are involved, and it offers practical direction on how litigants should manage evidence when the shooting officers are not called to testify. For these reasons the ruling has broader significance for police-accountability litigation and for the interpretation of sections 40 and 49 post-Walters.

Cases Cited

• Mabaso v Felix 1981 (3) SA 865 (Appellate Division)
• Ntamo and Others v Minister of Safety and Security 2001 (1) SA 830 (Transkei High Court)
• Minister of Safety and Security v Ntamo and Others 2003 (1) SA 547 (Supreme Court of Appeal)
• Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (South Eastern Cape Division)
• Duncan v Minister of Law and Order 1986 (2) SA 805 (Appellate Division)
• Minister of Safety and Security v Sekhoto and Another 2011 (5) SA 367 (Supreme Court of Appeal)
• Ramasike v Minister of Police [2024] ZAGPJHC 991 (26 September 2024)
• S v Nel and Another 1980 (4) SA 28 (Eastern Cape Division)
• Barnard v Minister of Police [2019] 3 All SA 481 (Eastern Cape Division, Grahamstown)
• Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (Supreme Court of Appeal)
• April v Minister of Safety and Security [2008] 3 All SA 270 (South Eastern Cape Division)
• Ex parte Minister of Safety and Security and Others: In re S v Walters and Another 2002 (4) SA 613 (Constitutional Court)
• Govender v Minister of Safety and Security 2001 (4) SA 273 (Supreme Court of Appeal)
• Zealand v Minister of Justice and Constitutional Development and Another 2008 (4) SA 458 (Constitutional Court)
• Minister van Wet en Orde v Matshoba 1990 (1) SA 280 (Appellate Division)
• Woji v Minister of Police 2015 (1) SACR 409 (Supreme Court of Appeal)
• K v Minister of Safety and Security 2005 (6) SA 419 (Constitutional Court)
• Dyibishe v Minister of Police [2023] ZAECGHC 94 (5 October 2023)
• Matlau v Makhubedu 1978 (1) SA 946 (Appellate Division)
• Colman v Dunbar 1933 AD 141
• Mkwanazi v Van der Merwe and Another 1970 (1) SA 776 (Natal)
• Oosthuizen v Stanley 1938 AD 322
• Gamble Investments (Pty) Ltd v Santam Ltd and Another [2020] ZAECPEHC 9 (28 April 2020)

Legislation Cited

• Constitution of the Republic of South Africa, 1996 – section 12(1)(a) and 12(1)(c)
• Criminal Procedure Act 51 of 1977 – sections 40, 49 and Schedule 1
• Dangerous Weapons Act 15 of 2013 – section 1
• Firearms Control Act 60 of 2000 – section 1, 120(6)(b) and 120(10)(b)
• Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 – section 3

Rules of Court Cited

• Magistrates’ Courts Rule 28(11) (re-opening of a case)

HEADNOTE

Summary

The plaintiff, Mr Mokone, sued the Minister of Police and a SAPS member for delictual damages. He alleged that on 10 February 2023 he was unlawfully shot, arrested without a warrant and detained for nine days before the criminal charge was withdrawn. The defendants admitted the shooting, arrest and detention but relied on section 40(1)(b) and section 49 of the Criminal Procedure Act as justification, arguing that the plaintiff had pointed what appeared to be a firearm, fled a lawful attempt at arrest, and created a public danger during a high-speed chase.

After separating merits and quantum, the court evaluated whether the arrest satisfied the jurisdictional requirements of section 40 and whether the resort to live ammunition met the stringent thresholds of section 49 as interpreted by the Constitutional Court in Walters. It held that the defendants bore the onus to prove both reasonable suspicion and proportional force.

On the evidence — which notably lacked testimony from the officers who actually fired the shots and revealed that the alleged firearm was a plastic toy — the court found the suspicion ill-founded and the shooting disproportionate. Both the arrest and the detention were therefore unlawful, and the Minister was vicariously liable for all proven damages arising from the shooting, arrest and subsequent incarceration.

Key Issues

The judgment addresses three central issues. First, it considers whether SAPS officials had an objectively reasonable suspicion, as required by section 40(1)(b), that the plaintiff had committed a Schedule 1 offence when they effected a warrantless arrest. Second, it interrogates whether the unidentified officers’ use of live rounds complied with section 49(2)’s narrow authorisation of deadly force, including the requirements of necessity, proportionality and absence of less harmful alternatives. Third, it deals with the consequential lawfulness of the nine-day detention and the State’s vicarious liability for the acts of individual officers who were never called to testify.

Held

The court held that the defendants failed to discharge their onus under both section 40(1)(b) and section 49. Once the officers discovered the weapon was a toy, any reasonable suspicion evaporated; accordingly, the arrest lacked lawful foundation. Because the arrest was unlawful, the ensuing detention was equally unlawful. Furthermore, the State offered no admissible evidence to show that lethal force was necessary or proportionate; hence the shooting violated section 49 and section 12(1)(c) of the Constitution. Judgment was granted for the plaintiff on the merits, with the Minister declared liable for whatever damages are proven at the quantum stage and with costs on the higher Scale C.

THE FACTS

The altercation began in Delft when the second defendant, an off-duty acquaintance of the plaintiff, demanded payment of an alleged R3 000 debt. The plaintiff, seated in his own vehicle, declined to accompany the officer to Gugulethu police station and drove away. The officer radioed for assistance and joined a multi-vehicle pursuit that moved through several suburbs with sirens blaring.

During the chase unidentified SAPS members fired four to five rounds at the plaintiff’s moving car. One bullet struck him in the left hip, causing him to lose control and crash at a construction site near Mitchells Plain. On the defendants’ version a “toy gun” was retrieved from the plaintiff’s vehicle; on the plaintiff’s version the item was planted after the fact.

The plaintiff was taken to hospital under guard and, on discharge the next day, was detained in Harare police station cells until 19 February 2023 when the charges were summarily withdrawn. Throughout, he faced no formal charge of pointing a firearm, defeating the ends of justice, reckless driving or any Schedule 1 offence. The docket opened at the scene listed only “possession of a firearm,” despite the officers’ admission that the object was a toy incapable of firing.

THE ISSUES

The court had to determine, first, whether the SAPS members’ warrantless arrest and the ensuing detention were wrongful. This required an examination of the objective reasonableness of any suspicion that a Schedule 1 offence had been committed, as well as the officers’ genuine purpose in apprehending the plaintiff.

Second, it had to decide whether the gunshot that wounded the plaintiff was a lawful application of force under section 49. This entailed analysing whether the police attempted an arrest before resorting to force, whether the plaintiff posed an imminent threat of serious violence, and whether any lesser means of effecting arrest were available.

Finally, the court considered vicarious liability and costs: if the arrest and shooting were unlawful, was the Minister, as employer, responsible for the damages, and on what cost scale should liability be imposed?

ANALYSIS

Van Zyl AJ began with the section 40 test set out in Sekhoto and the classic Mabona standard for reasonable suspicion. He found that even on the defendants’ own version the suspicion dissipated once the toy nature of the object was known at the scene. Because a toy gun is neither a firearm nor a dangerous weapon under Schedule 1, the statutory pre-conditions for a warrantless arrest were never met.

Turning to detention, the judgment invoked Zealand to restate that any deprivation of liberty is prima facie unlawful; the defendant must justify it. Evidence revealed that the arresting officer opened a docket but never pursued a prosecution, never ensured a court appearance, and showed no interest in the matter thereafter. That conduct was inconsistent with the constitutional purpose of arrest — bringing a suspect promptly before court — and therefore rendered the entire period of custody unlawful.

On section 49, the court applied Walters and Govender. It emphasised that shooting at a fleeing suspect is lawful only in narrowly circumscribed circumstances, none of which were proved. The actual shooters did not testify; no warnings or warning shots were proved; and the claimed risk to public safety was speculative, unsupported by charges of reckless driving. The inference that the officers possibly aimed at tyres was dismissed as conjecture. In the absence of evidence that lethal force was necessary and proportionate, the shooting violated both statute and the Constitution.

REMEDY

The court granted judgment on the merits for the plaintiff, declaring that the shooting, arrest and detention were wrongful and unlawful. It ordered the Minister of Police to pay whatever damages the plaintiff proves at a later quantum hearing, together with costs of the merits trial on the higher Scale C, including counsel’s fees. The second defendant’s liability is subsumed under the Minister’s vicarious responsibility, and no order was made against him personally at this stage.

LEGAL PRINCIPLES

First, an arrest under section 40(1)(b) requires a reasonable suspicion that a Schedule 1 offence has been committed; once facts emerge showing no such offence, the power to arrest falls away.

Second, section 49 authorises deadly force only when an attempted arrest is underway, the suspect cannot otherwise be captured, and the suspect poses an immediate threat of serious violence or is suspected of a serious violent crime. The State bears the onus to prove each element; absence of testimony from the shooting officers is fatal.

Third, any detention following an unlawful arrest is itself unlawful unless independently justified. Section 12 of the Constitution and the common-law presumption of liberty place the evidential burden squarely on the detaining authority.

Fourth, the Minister of Police is vicariously liable for delicts committed by SAPS members acting in the course and scope of their employment, even where the individual officers are not joined or identified.

Finally, litigants seeking to rely on section 49 must lead concrete, contemporaneous evidence explaining why lesser force was impossible and demonstrating proportionality; speculative inferences will not suffice.