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[2024] ZAFSHC 68
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Matsoso v Minister of Police (415/2019) [2024] ZAFSHC 68 (29 February 2024)

IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
415/2019
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
MAHLOMOLA
MATSOSO
and
THE
MINISTER OF POLICE
Plaintiff
Defendant
CORAM:
P.R. CRONJÉ, AJ
HEARD
ON:
9 MAY - 10 MAY 2023; 12 MAY 2023; 10 – 14 JULY 2023; 28 JULY
2023; 31 JULY 2023; 8 AUGUST 2023; 13 DECEMBER 2023
DELIVERED
ON:
29 FEBRUARY
2024
DELIVERED
BY
:
P
R CRONJÉ, AJ
[1]
The plaintiff instituted action against the Minister alleging
unlawful arrest,
[1]
detention
and assault by members in employment of the Minster.  He,
inter
alia
,
alleges that the Minster did not take into account rights afforded to
him in section 12 of the Constitution
[2]
and that the police officers had no reasonable and/or justifiable
grounds to interfere with his constitutional rights.
[2]
The Minster does not deny vicarious liability. The Minster pleads
that the plaintiff
aggressively demanded that Sgt. Molaoa, the driver
of the police minibus (referred to as “
the Quantum
”)
stopped the vehicle and he thereupon forcefully opened the door
whilst it was still in motion. plaintiff thereafter, allegedly,

assaulted Capt. Mandla who tried to stop him from exiting the
Quantum, who then used reasonable force under the circumstances to

prevent the plaintiff from leaving. In respect of the detention, the
Minster pleads that the plaintiff committed the offence of
assaulting
Capt. Mandla and obstructed the police in the execution of their
duties.  It is also pleaded that the plaintiff
was a known
criminal who had been arrested on previous occasions and posed a risk
to the community, and would on probabilities
have evaded a Court
hearing.
Evidence
for the plaintiff
[3]
The plaintiff resides at Kopanong, Odendaalsrus. On the morning of
the engagement
between him and the police, he went to Senwes in
Welkom.
[3]
He left the
building, stopped a 4+1 taxi (“
taxi
”),
and got into the seat next to the driver.  In the backseat were
three passengers. The Quantum then parked at a 45
0
angle in front of the taxi. Capt. Mandla got out, pointed his finger
at him and said that he must step inside the Quantum.
Mr
Thabole was also told to get out of the taxi and got into the
Quantum.  When the plaintiff got into the Quantum, he saw
Mr
Mantsoe and other police officers.  Mr Thabole took the seat
behind Sgt. Molaoa.  The plaintiff himself sat in the
middle of
the first seat behind Sgt. Molaoa.  None of the police officers
were in uniform but were known to him.  He
was not told why he
must get into the vehicle and was not told that he was under arrest
and needed to be searched.
[4]
The Quantum then drove in the direction of a circle in Jan Hofmeyer
Street whereafter
it turned into Fuel Street. He asked Capt. Mandla
where they were going and what did he do?  He received no answer
and he
told Sgt. Molaoa to stopped the vehicle as he wanted to leave.
Sgt. Molaoa stopped the vehicle, opened the door and stepped out
of
the Quantum. He walked towards the back of the Quantum and Capt.
Mandla, who was seated next to Sgt. Molaoa, got out and followed

him.  Capt. Mandla then touched him on the shoulder whereupon he
turned around.  After he turned around, Capt. Mandla
started
beating him with a baton which he held in his right hand.  He
enquired from Capt. Mandla what the reason for the assault
was, but
received no reply.  The plaintiff stepped back and felt a wall
behind him.  He blocked the assault with his
arms and hands to
protect his face. When his arms got tired, he let them down and he
was then hit on the head. Blood ran from the
wound.  He received
stitches at the hospital later that day.
[5]
The other police officials alighted from the vehicle and tried to
stop Capt. Mandla
from continuing the assault.  There were six
(6) police officers in total in the Quantum before he got out.
After Capt.
Mandla saw blood running over his face, he stopped
hitting him and told him to get into the Quantum.  Capt. Mandla
then turned
to face Mr Mantsoe who in the meantime also got out, and
assaulted him too.
[6]
They then went to the police station.  There, Capt. Mandla told
Mr Mantsoe and
Mr Thabole that they may leave.  He was taken to
the hospital.  At the hospital he received stitches for the
wound, his
hands and forearms were treated and scans were taken.
Mr Mantsoe was also at the hospital, receiving attention for the
assault.
There were no beds in the holding cells at the police
station, it was overcrowded and people were smoking.  He is a
non-smoker.
His fingerprints could not be taken as his hands
were too swollen.  When he when to Court the following Monday,
he was told
to go home.
[7]
In cross-examination he stated that he was self-employed selling food
and vegetables.
He is married, has three (3) children, and is
the breadwinner.  He went to Senwes to buy “
many
things
”.  He had no bag with him.  He knew Capt.
Mandla as he arrested him before.  He knew Mr Thabole before
they
got into the taxi.  The Minster’s version that he, Mr
Thabole and Mr Mantsoe were all on foot together was denied. He

denied that he carried a bag and that when they saw the Quantum they
ran in different directions.  He could not run as he
had an
injury to his ankle that he suffered when he played soccer in 2014.
He denied that Capt. Mandla told him to enter the Quantum
as the
police were looking for them. According to him it was a coincidence
that he, Mr Thabole and Mr Mantsoe were all together
in the Quantum
that afternoon.
[8]
The Minster’s version is that they were tracked in the
directions in which they
ran and picked up as they got hold of them.
Sgt. Molaoa told them that they were looking for a black bag that the
plaintiff discarded.
[9]
He denied that Sgt. Molaoa did not bring the Quantum to a standstill
when he requested
it.  He denied that he was the aggressor.
The other police officials shouted at Capt. Mandla to stop beating
him.
Sgt. Molaoa was still seated in the Quantum but Sgt.
Phakoe and another officers were next to the plaintiff when he was
hit.  He
denied that he pushed Capt. Mandla and tried get hold
of his firearm to disarm him.  The baton was not used to prevent
him
from disarming Capt. Mandla and he was not obstructing the duties
of the police.  He saw when Capt. Mandla hit Mr Mantsoe with
the
baton.  It was put to him that the reason why Mr Mantsoe was
injured was as a result of Mr Mantsoe trying to stop the
plaintiff
from beating Capt. Mandla.  Mr Mantsoe told him at the hospital
that his hand was broken.  It was put to him
that Mr Mantsoe was
not at hospital that day.
[10]
Mr Mantsoe testified that he was at Manny’s buying bearings for
his car on that day.
He was alone and as he walked in the road
linking Jan Hofmeyer Road and Fuel Street, six police officers got
out of the Quantum,
held him by the belt and put him inside the
Quantum.  He was told that he will see “
what is
happening
”.  The Quantum thereafter stopped in front
of the taxi.
[11]
In Fuel Street, the plaintiff told Mr Mantsoe to stop the vehicle and
when it stopped, plaintiff
went outside telling the police that he
does not know why they arrested him.
[12]
The plaintiff walked towards the back of the Quantum whereafter Capt.
Mandla opened the front
door, took a baton from the back of his seat
and followed the plaintiff.  He grabbed the plaintiff from
behind and when plaintiff
looked back, Capt. Mandla started beating
him with the baton.  Sgt. Molaoa then asked Mr Mantsoe why does
he not stop Capt.
Mandla from assaulting the plaintiff as Sgt. Phakoe
and Mr Sempe already tried.  They tried to pull Capt. Mandla
from the
plaintiff but he continued beating the plaintiff.
[13]
He then got out and stood next to the door whereafter the other
police officers succeeded in
containing Capt. Mandla.  He did
not say anything but Capt. Mandla came to him, said “
and you
too
”, and then started beating him with the baton.  He
was hit on the bony protrusion at the wrist of the left arm.

The plaintiff was bleeding over his face whereafter they went to the
police station.  A police officer said that he cannot
book the
plaintiff into the cells as he was injured.  He himself had a
lot of pain on his left wrist.  Capt. Mandla then
shouted at him
whether he was to open a case against him whereupon he said that he
would not and just want to go home as he was
in pain. He and Mr
Thabole was told to leave.  His wife took him to Bongani
hospital where he saw the plaintiff, Sgt. Phakoe,
Mr Sempe, and Sgt.
Molaoa.
[14]
In cross-examination he admitted that he knew Capt. Mandla, Sgt.
Phakoe, Mr Sempe and Sgt. Molaoa
before the incident. After the
incident Capt. Mandla and Sgt. Molaoa met him in the parking area of
the Spar in Riebeeckstad. Sgt.
Molaoa said that he brought Capt.
Mandla to sort things out and to ask for forgiveness.  Capt.
Mandla apologized for what
he did to him.  Capt. Mandla said he
acted out of anger and said he was “
sorry
”. He
denied that he was injured after he tried to prevent the plaintiff
from attacking Capt. Mandla.  He denied that
he carried a bag.
He knows Mr Thabole as a taxi driver but they were not friends.
He could not himself drive after
the attack as his hand was broken
and his wife had to drive him to hospital.
[15]
Mr Thabole testified that he got into the taxi and saw the
plaintiff.  He did not have any
business with the plaintiff on
that day and was told to get into the Quantum. Whilst driving in Fuel
Street, the plaintiff asked
to get out of the Quantum as he does not
know where they were going.  plaintiff asked Sgt. Molaoa to
stop, whereafter Sgt.
Molaoa stopped the vehicle.  plaintiff
opened the door and got out.  The plaintiff took a few steps
after he alighted
and Capt. Mandla then took the baton and followed
the plaintiff placing his hand on his left shoulder and started
beating the plaintiff
with the baton. The plaintiff did not assault
Capt. Mandla.  The other police officers made something like a
circle around
the plaintiff and Capt.. Mandla.  Mr Mantsoe was
asked by Sgt. Molaoa to help to separate the plaintiff and Capt.
Mandla but
they already separated when he went outside.  Capt.
Mandla then hit Mr Mantsoe on his hand.  No one was searched. He
and Mr Mantsoe was told that they may go home.
Evidence
for the Minister
[16]
Constable Ngake is employed at Jan Hofmeyer Road Police Station.
She works in the Criminal
Records Division.  Her duties are
inter alia
to process all arrested suspects, take warning
statements and prepare dockets to be sent to Court.  When she
interviewed the
plaintiff he told her what happened and she wrote it
down.  Before he signed it, she asked him whether there was
anything
that he was not satisfied with and he did not indicate the
contrary.  She confirmed that plaintiff was injured but
fingerprints
were taken of the fingers that were not injured.
[17]
In cross-examination she testified that the plaintiff indicated that
he seeks legal representation
and that there was no necessity to wait
for such as the plaintiff was willing to make a statement. She did
not take the fingerprints
and only completed the form.  When put
to her that his hands were swollen and that the fingerprints were
only taken the following
day, she stated that she does not know.
She and Sgt. Khatoe dealt with the plaintiff.  She confirmed
that the plaintiff
stated that he was assaulted.
[18]
Capt. Mandla testified that on the day of the incident, he was the
Relief Commander of the Task
Team: Crime Prevention Unit.  They
focus on theft of motor vehicles and robberies.  He, Sgt.
Molaoa, Sgt. Phakoe and
Const. Khubedu reported for duty at 12h00 on
the day. He saw three persons walking from Power Road towards Jan
Hofmeyer Road.
He informed them that he wants to see what was
in their bag.  He knew the plaintiff (“
Loubser
”),
Mr Mantsoe (“
Willie
”) and Mr Thabole.  He
arrested them in the past for motor theft and robbery. They worked as
a group.  The police
had meetings with them before, discussing
challenges that the police were having with crime.  The
discussions then revolved
around the possibility of assisting them
with the needs for their children as they said that they were
involved in criminal conduct
to care for their families.  On
that day the plaintiff carried a bag and when they started to run, he
developed a suspicion
that something was wrong and that they
committed a crime. The bag raised his suspicion.
[19]
The Quantum was clearly visible as a police vehicle as it had blue
lights on the dashboard, which
are generally switched on.  When
they gave chase it was him, Sgt. Molaoa, Mr Junior, Mr Sempe, Sgt.
Phakoe and Const. Khubedu.
Sgt. Phakoe and Const. Khubedu
followed the plaintiff and Mr Thabole while he chased Mr Mantsoe.
They picked Mr Mantsoe up
and drove to where they stopped the taxi at
Senwes.  According to him they went to the plaintiff and Mr
Thabole in the taxi
and requested them to join them in the Quantum.
He asked Mr Thabole where the bag was and requested them to accompany
them
to do an investigation on the whereabouts of the bag.
[20]
The plaintiff and Mr Thabole voluntarily joined them in the Quantum.
He asked the plaintiff
why he changed his jacket.  When he asked
about the bag, Mr Thabole said nothing but the plaintiff asked him
where they were
being taken to. He told him that he was looking for
the bag.  When they arrived in Fuel Street, plaintiff said that
he wanted
to leave the Quantum and then opened the door whilst the
Quantum was still moving and Sgt. Molaoa stopped the Quantum.
He
got out to stop the plaintiff from leaving and pushed the
plaintiff to get back in the Quantum.  The other police
officials
also tried to stop the plaintiff but he forced himself out
of the door.  As he pushed the plaintiff back to the Quantum,
the
plaintiff hit him with a fist on his left jaw.  The police
is issued with batons and pepper spray and he decided to defend

himself with the baton.  He denied that the plaintiff walked
towards the back of the Quantum when he was outside or that he

touched his shoulder.  He only pushed the plaintiff back towards
the Quantum and was then hit on the jaw.  plaintiff
thereafter
punched him on his forehead and chest and said that they must kill
each other.
[21]
The plaintiff tried to take his firearm from him and he then realized
that it has become serious.
When the plaintiff reached out for
the firearm, he targeted his hands.  The use of the baton
stopped the plaintiff from continuing
his assault.  He did not
deny that the plaintiff’s hands were injured and stated that he
himself was also injured.
[22]
He arrested the plaintiff for assaulting him and hindering the police
in the execution of their
duties whilst looking for the bag.  He
recalls that Mr Mantsoe tried to intervene and also later indicated
that he was injured.
According to him, Mr Mantsoe wanted to
stop the plaintiff from assaulting him. Sgt. Phakoe and Khubedu was
not at the scene yet.
He denied that the police made a
semi-circle around them to stop the fighting.  After Sgt. Phakoe
and Khubedu arrived, the
other members in the Quantum also came out
to keep them apart.  He denied that he threatened Mr Mantsoe and
assaulted him.
[23]
The plaintiff was handcuffed before he was placed back in the Quantum
and they went to the police
station.  He informed the plaintiff
of his constitutional rights.  They did not continue with the
investigation as the
plaintiff needed medical assistance.  He
confirmed that he told Mr Mantsoe and Mr Thabole that they may leave.
He denied the
meeting at the shopping centre and only met Mr Thabole
and Mr Mantsoe at Court.  There was never an apology.
[24]
In cross-examination, he conceded that persons may carry a bag and
they are not always stopped
to be searched.  When they saw the
bag, they believed it to have been stolen. They believed that a crime
was committed. When
the three ran, he believed it was a joint
operation. If a person runs, there are grounds for suspicion and
there may be something
wrong.  When they do patrol, they would
receive WhatsApp messages telling them where the plaintiff and the
other two were.
He received information on that day that the three
were up to no good.  This was never put to plaintiff.  He
arrested
them previously for theft out of motor vehicles and
robbery.
[25]
It was clear from his evidence that there was no information of any
crime committed where the three were
involved.  From the history
that he painted there was no confrontation or physical interaction
before.
[26]
It is of importance to state that various aspects of Capt. Mandla’s
testimony was not put
to the plaintiff or his witnesses.  It was
never put to the plaintiff that he changed his jacket or that he and
Mr Thabole
were confronted inside the taxi about the bag.  Capt.
Mandla initially gave an explanation of the seating arrangement of
the
persons in the Quantum but in cross-examination eventually
conceded that he could not remember.  According to him he got
out
before the plaintiff left the Quantum and pushed him back.
If he remembers well, the other police officers in the vehicle
also
tried to pull the plaintiff back - “
they did something
”.
This was also not put to the plaintiff.  He stated that as the
fighting continued, other members tried to separate
them. He has no
recollection that he hit Mr Mantsoe.
[27]
On a question that it was not put to Mr Thabole or the plaintiff that
the plaintiff’s rights
were explained, he wanted to continue to
look for the bag, and that the plaintiff was handcuffed, he stated
that he believes that
it was important and that he was now placing
his version on record.  It was not necessary for him to go to
the doctor even
though the plaintiff, on his version, assaulted him.
[28]
The basis of suspicion against them was that they used the same
modus
operandi
twice before and they then recovered something from
them.  He did not harbour a reasonable suspicion as a result of
the previous
incidents but on that day he wanted to see the contents
of the bag.
[29]
In re-examination he stated that there were a number of engagements
between the three and the
police and when the police approached them,
they cooperated.  It was not the first time they ran away.
[30]
On my questions he testified that it was the first physical
altercation between them and that
he did not go to the hospital on
the same day.  He confirmed that his statement does not say on
what day it was prepared.
[31]
Sgt. Molaoa testified that he worked with Capt. Mandla since 2017. On
the day he was performing
crime prevention duties with Capt. Mandla,
Sgt. Phakoe and Const. Khubedu.  He was the driver of the
vehicle.  The plaintiff
apparently carried a black bag and it
was perplexing that the three ran away as they never did before.
They stopped in front
of the taxi and Capt. Mandla and he got out of
the Quantum. Capt. Mandla told the plaintiff and Mr Thabole to get
out and he asked
Mr Thabole where the black bag was.  Capt.
Mandla told them to get into the Quantum to look for the bag.
The plaintiff
later became aggressive, stood up and went to the
sliding door whereupon he stopped. He did not stop the Quantum on the
instruction
of the plaintiff. Capt. Mandla got out too whereafter the
plaintiff pushed Capt. Mandla against the vehicle and punched him on
his chest and said that one of them will die that day.  He tried
to get out to try to pull the plaintiff from Capt. Mandla.
Mr.
Sempe and Mr Junior were still in the vehicle.  He phoned Sgt.
Phakoe to come and help. They cuffed the plaintiff and
drove to the
police station.  He did not see what caused the injury to the
plaintiff’s head.  Mr Mantsoe got out
of the Quantum and
managed to stop the altercation and thereafter got back in.  He
did not observe injuries to Mr Mantsoe.
[32]
The plaintiff was placed under arrest at the police station and Mr
Mantsoe and Mr Thabole were
informed that they may go home.  He
denied that he and Capt. Mandla saw Mr Mantsoe after that day and
there was no apology
conveyed.  It was the first time that he
saw the plaintiff carrying a black bag.
[33]
According to him both the plaintiff and Mr Thabole sat in the back
seat of the taxi.  Compared
to Capt. Mandla’s version in
respect of this, his version is correct.  When it was put to him
that it was not put to
Mr Thabole or Mr Mantsoe that the plaintiff
became aggressive, he stated that they would have seen it.  The
plaintiff was
freely in the Quantum whilst they were driving in Fuel
Street and could leave the Quantum at any time as he was not deprived
of
his liberty at that stage. Capt. Mandla should be asked why he
stopped the plaintiff from leaving the vehicle.
[34]
When he went around the Quantum, the plaintiff was aggressive and
holding Capt. Mandla on his
clothes, pushing him towards the
Quantum.  He got his cell phone and called his colleagues.
There were three officers
behind the plaintiff to get him off Capt.
Mandla.  The plaintiff “
pushed”
with two
fists towards Capt. Mandla which he later qualified to be “
punches”
.
He did not see Capt. Mandla using the baton. He could not recall who
sat where in the Quantum.  Capt. Mandla told him
that he was ill
afterwards and saw a doctor.  He confirmed that he saw Mr
Mantsoe at the left back side of the Quantum. He
denied that Mantsoe
was injured.  Capt. Mandla thereafter informed the plaintiff
that he is arrested and his rights were read.
He denied that he and
Capt. Mandla approached Mr Mantsoe to apologize for what happened.
When it was put to him that it was
not disputed he simply said it did
not happen.  Capt. Mandla told him that the plaintiff tried to
reach for his firearm.
He was surprised as there was no reason
for it.
[35]
Sgt. Phakoe testified that they met the three when they were close to
the circle and when Capt.
Mandla called them they ran away.  He
went to a guesthouse in Fuel Street to look at camera footage to see
in what direction
the plaintiff and Mr Thabole went and then received
a call from Sgt. Molaoa to request assistance as the plaintiff was in
a fight
with Capt. Mandla.  On arrival they managed to stop the
plaintiff and heard Capt. Mandla said that he now found plaintiff and

got him this time.  When he arrived where the altercation took
place everything stopped.  Mr Mantsoe was outside the
Quantum
and tried to calm the plaintiff down and implored him not to fight.
There was no encirclement. He was not sure who carried
the bag but
thought it was the plaintiff.
Evaluation
of evidence
[36]
With the exception of Ms Nkage, all the witnesses knew each other. I
accept that there were engagements
between the parties before. One
may describe the two groups as the Three and Four Musketeers
respectively. All of them had reason
to protect each other. I
specifically ruled that I would not hear evidence of previous
convictions as it is not relevant to the
question that I need to
determine, namely, whether the plaintiff was assaulted, arrested and
kept in custody.
[37]
Both sides presented evidence of how the engagement started on that
day. It eventually became
clear, notwithstanding the attempt by the
plaintiff and his witnesses to water it down, that he, Mr Thabole and
Mr Mantsoe knew
each other and the police knew them to function as a
group. I also accept that they were walking together that day. I
accept that
a bag was carried. I cannot find that it was the
plaintiff who carried the bag. Sgt. Molaoa testified that Capt.
Mandla asked Mr
Thabole where the bag is and Capt. Mandla testified
that he asked the plaintiff. There are variances between Capt. Mandla
and Sgt.
Molaoa of how the plaintiff and Mr Thabole came to be in the
Quantum. Capt. Mandla states that he showed them to come whist Sgt.

Molaoa says that Capt. Mandla opened the door where Mr Thabole sat
and told him to get out.
[38]
In view of my acceptance that they walked together and that there was
a bag, I accept that the
reason for the plaintiff and his partners to
be in the Quantum was to search for the bag.
[39]
On all accounts, the plaintiff and his colleagues were not arrested,
their rights were not explained,
and they were suspects who were
merely asked to help to find the bag. They were free to leave the
Quantum at any stage.
[40]
None of the witnesses’ versions were that there was any
aggression or animosity between
them or threats of violence before
that day. The question then to be answered is what caused the
incident?
[41]
The plaintiff was free to leave the Quantum, as conceded by the
police. On the plaintiff’s
version he got out. He was entitled
to do so. Capt. Mandla then on his own account restricted the
plaintiff’s freedom of
movement and restrained him from
leaving. This was before he was informed that he was a suspect or
that he is arrested for the
notional crime of carrying a bag or
running away.
[42]
The plaintiff entered the Quantum voluntarily and made an election to
leave. He was perfectly
entitled to do so. I. find that Capt. Mandla
arrested the plaintiff without warning him of his rights when he
stopped him. The
arrest, at least prior to the altercation, was
unlawful.
[43]
When Capt. Mandla, on his own version, pushed the plaintiff back
towards the door of the Quantum, he committed
unjustifiable assault.
The plaintiff was at that stage no threat to him. Even if the
plaintiff was aggressive, there is no evidence
that the plaintiff at
that stage assaulted Capt. Mandla. The Minster carries the onus to
proof that the action was lawful. I find
that he failed to discharge
that onus.
[4]
[44]
The persons who were able to see the use of the baton was the
plaintiff, his two partners and Capt. Mandla.
None of the other
officers saw at what stage it was used. The history of the
engagements before that day gives no hint that the
plaintiff would go
as far as to attempt to disarm a police officer of would physically
engage with the police. To the contrary,
everyone cooperated with
each other, no force was used to place any person in the Quantum.
[45]
I find that Mr Mantsoe was assaulted by Capt. Mandla. Capt. Mandla,
nor any other officer could give an explanation
as to how Mr Mantsoe
was hit. I accept the evidence of Mr Mantsoe that Capt. Mandla came
to him and told him "
and you too
". Mr Mantsoe was
now outside the Quantum, as was the plaintiff, and this clearly did
not satisfy Capt. Mandla. I find that
Mr Mantsoe was asked to assist
to get Capt. Mandla of the plaintiff. I therefore also accept that
the other police officers tried
to get Capt. Mandla away from the
plaintiff. The plaintiff was unarmed and Capt. Mandla had a potent
weapon. The injuries to the
plaintiff’s hands and arms were not
disputed and it is hard to see how the plaintiff would have been able
to attack Capt.
Mandla when he had no similar or proportional weapon.
Mr Thabole also saw what happened. I reject Capt. Mandla’s
version
is that the plaintiff wanted to get to his firearm. It does
not fit the history of the engagements and the disproportion between

what was available to the plaintiff to achieve the goal.
[46]
I accept the evidence of Mr Mantsoe that he had to visit the hospital
for attention that day after Capt.
Mandla assaulted him. I accept
that he could not drive his vehicle as a result of the assault and
that the engagement at the shopping
centre where Capt. Mandla
apologised took place. Mr Mantsoe had no reason to relay this other
than that it happened. It did not
support the plaintiff’s case
and he took no steps against Capt. Mandla.
[47]
The versions of what happened before the plaintiff and his partners
got into the Quantum are diametrically
opposite. I accept the
Minister’s version up to the point where the Quantum stopped
the taxi. The evidence is credible and
reliable. This implies that
the version of the plaintiff and his witnesses cannot be credible and
reliable.
[48]
From there on, there are various discrepancies regarding how the
plaintiff and Mr Thabole got out of the
taxi and who asked whom about
the bag. I cannot accept that evidence of the Minster.
[49]
When it came to how the assault commenced and what exactly happened,
the Minster only has the evidence of
Capt. Mandla. The other officers
were not materially involved and did not see everything. In respect
of this portion of the evidence
I find that the version of the
Minster’s witnesses is not credible and reliable.
[50]
In respect of the sequence of events from the moment that the
plaintiff got up to leave the Quantum to the
point where he was taken
to the hospital and later to Court, I accept the version of the
plaintiff and his witnesses.
Lawfulness
of arrest and the onus
[51]
In
Lawu
and Another v Minister of Police
[5]
,
the principles are summarised with reference to a number of judgments
on the requirements as follows:
“
[72]
The principles regarding an unlawful arrest are
trite:
72.1
an arrest or detention must be
constitutionally and statutorily justified and the reason for this
is
obvious: it deprives a person of their liberty and dignity;
72.2
where an arrest takes place without a
warrant, once the arrest and detention are admitted the onus
rests on
the State to prove the lawfulness thereof;
72.3
to discharge this onus, the defendant must
show that
a)
the arrestor was a peace officer;
b)
that he or she entertained a suspicion;
c)
that the suspicion was that the arrestee had committed a Schedule 1
offence and
d)
that the suspicion rested on reasonable grounds;
72.4
an honest belief in the legality of the
arrest or detention is no defence.”
[52]
The plaintiff need not allege or prove wrongfulness – it is for
the defendant to allege and prove the
lawfulness of the arrest and
detention. T
he
test as to whether the arresting officer’s suspicion is
reasonable is assessed objectively.
[6]
Once the required suspicion exists, an arresting officer is vested
with a discretion to arrest, which he must exercise rationally.
The Minister’s challenge is that there was no arrest on a
reasonable ground that the bag contained stolen property or was

stolen. There was a mere subjective suspicion as the three ran. The
suspicion in any event did not lead to an arrest. Both Capt.
Mandla
and Sgt. Molaoa conceded that the plaintiff was free to leave, at
least up to the point of the plaintiff’s alleged
assault on
Capt. Mandla. It is trite that when
the
police assume control over a person’s movements s/he is under
arrest.
[7]
[53]
To be able to arrest the plaintiff for obstruction of the police in
the execution of their duties, the test
to satisfied is
that:
(i) the arrestor must be a peace officer, (ii) an offence
must
have been committed
,
or
an
attempt have been made to commit an offence
,
(iii) in his/her presence. Similarly, the jurisdictional facts
necessary to be proved in respect of section 40(1)(j) of the Criminal

Procedure Act (CPA)
[8]
, namely
(i) the arrestor must be a peace officer, (ii) there must be a
wilful
obstruction of the officer
,
(iii) in the execution of his duties.
[9]
It is difficult to envisage how the plaintiff could have
intentionally
obstructed
the police when he was in fact free to go, where there was no bag in
his possession, where it was not known what was in the bag
or that it
was stolen. No reasonable suspicion could therefore have been formed.
When they were picked up to look for the bag,
they were suspects and
entitled to be warned of their rights. It is my view that the police
took shortcuts, which now costs the
Minister dearly.
[54]
In
Biyela
v Minister of Police
[10]
,
Musi AJA affirmed that the test whether a suspicion is reasonable, is
objectively justiciable:
“
[34]
The standard of a reasonable suspicion is very low.
The
reasonable suspicion must be more than a hunch; it should not be an
unparticularised suspicion. It must be based on specific
and
articulable facts or information
. Whether the suspicion
was reasonable, under the prevailing circumstances, is determined
objectively.
[35]
What is required is that the arresting
officer must form a reasonable suspicion that a Schedule 1
offence
has been committed based on credible and trustworthy information.
Whether that information would later, in a court of law,
be found to
be inadmissible is neither here nor there for the determination of
whether the arresting officer at the time of arrest
harboured a
reasonable suspicion that the arrested person committed a Schedule 1
offence.
[36]
The arresting officer is not obliged to arrest based on a reasonable
suspicion because he or she has a discretion. The discretion
to
arrest must be exercised properly.
Our
legal system sets great store by the liberty of an individual and,
therefore, the discretion must be exercised after taking
all the
prevailing circumstances into consideration
.
[my emphasis]
[55]
In
State
v Lubaxa
[11]
,
albeit in the context of malicious prosecution, and analogous to the
detention of the plaintiff it was held:
“
Clearly
a person ought not to be prosecuted in the absence of a minimum of
evidence upon which he might be convicted, merely in
the expectation
that at some stage he might incriminate himself. That is recognised
by the common law principle that there should
be “reasonable
and probable” cause to believe that the accused is guilty of an
offence before a prosecution is initiated
. . . and the
constitutional protection afforded to dignity and personal freedom (s
10 and s 12) seems to reinforce it. It ought
to follow that if a
prosecution is not to be commenced without that minimum of evidence,
so too should it cease when the evidence
finally falls below that
threshold.”
[56]
Ms Mofokeng, for the Minster, is correct in submitting that s. 36
[12]
of the Constitution places limitations on s 12.
[13]
She refers to
Magajane
v Chairperson, North West Gambling Board
.
[14]
The Court, however also stated:
“
[63]
This Court in Mistry described the essential nature of the right to
privacy as protected in section
14 of the Constitution and the means
through which section 14 repudiates repugnant past practices and
re-affirms others consistent
with the new constitutional values:
“
The
existence of safeguards to regulate the way in which State officials
may enter the private domains of ordinary citizens is one
of the
features that distinguish a constitutional democracy from a police
State. South African experience has been notoriously
mixed in this
regard. On the one hand there has been an admirable history of strong
statutory controls over the powers of the police
to search and seize.
On the other, when it came to racially discriminatory laws and
security legislation, vast and often unrestricted
discretionary
powers were conferred on officials and police. Generations of
systematised and egregious violations of personal privacy
established
norms of disrespect for citizens that seeped generally into the
public administration and promoted amongst a great
many officials
habits and practices inconsistent with the standards of conduct now
required by the Bill of Rights. Section 13 accordingly
requires us to
repudiate the past practices that were repugnant to the new
constitutional values, while at the same time re-affirming
and
building on those that were consistent with these values.”
[57]
The wording of s 36, however, has to be considered carefully. It
specifically provides that the
nature of the right, the importance of
the purpose of the limitation, the nature and extent of the
limitation, the relation between
the limitation and its purpose, and
less restrictive means to achieve the limitation has to be
considered. There can be no question
about the importance of the
right to freedom and due process. Allowing the police to pick persons
up against whom they have no
reasonable grounds to believe that an
offence has been committed or may be committed, and in order to help
the police to incriminate
themselves cannot justify a limitation on
the basis of a notionally important purpose, which in this case was
limitless and where
there were less restrictive means available. The
plaintiff and his partners were well known to the police and
arresting them when
they found what they were looking for was not
impossible. I am afraid that, on the facts before me, the case
Magajane
is of no assistance to the Minister.
[58]
Reference is made to
S
v Murphy and Others
[15]
where the Court dealt with the legality of search and seizure with
reference to ss 20 to 22 of the CPA. This case too is not of

assistance to the Minister. By the time that the plaintiff and his
partners were picked up, they were no longer in possession of
the
bag. I refer to the question of whether a common purpose was
established when only one carried a bag and nothing was found.
They
were not searched and the purpose of picking them up was not to
search them. I already found that on the evidence I could
not find
that reasonable grounds existed even if there was a search of their
person.
[59]
It is correct that s 205(3) of the Constitution empowers the police
to prevent, combat and investigate
crime, to maintain public order,
to protect and secure the inhabitants of the Republic and their
property, and to uphold and enforce
the law. These are broad
descriptions that are given body in various other pieces of
legislation such as the CPA, POCA
[16]
and the Police Service Act
[17]
.
[60]
In
Ralekwa
v Minister of Safety and Security
[18]
it was held that
“
[t]o
decide what is a reasonable suspicion there must be evidence that the
arresting officer formed a suspicion which is
objectively
sustainable
”.
The
phrase ‘reasonable suspicion’ has often been considered
particularly within the context of s 40(1)(b) of the CPA.
The section
permits an arrest by a police officer without a warrant where the
arrestor “
reasonably
suspects
”
the arrestee of having committed an offence.
[61]
In
Minister
of Safety and Security v Sekhoto and Another
[19]
it
was held that “‘
peace
officers were entitled to
exercise
this discretion as they saw fit, provided they stayed within the
bounds of
rationality
.
This standard was not breached because an officer exercised the
discretion in a manner other than that deemed optimal by the court.

The standard was not perfection, or even the optimum, judged from the
vantage of hindsight, and, as long as the choice made fell
within the
range of
rationality
,
the standard was not breached’”
.
[62]
In both the decisions above the objective standard is reaffirmed.
[63]
The facts in
R
v Zackon
[20]
is clearly distinguishable from the facts before me. The different
forms of the crime of obstruction of justice was summarised
in
S
v Mene and Another
[21]
.
[64]
On a conspectus of all the facts, I am satisfied that the plaintiff
discharged the onus on all the elements
where it rested on him. The
Minister, however, failed to discharge his onus.
Quantum
of damages
[65]
In
Minister
of Safety and Security v Tyulu
[22]
it was held:
''In
the assessment of damages for unlawful arrest and detention it is
important to bear in mind that the primary purpose is not
to enrich
the aggrieved party but to offer him or her some much-needed solatium
for his or her injured feelings. It is therefore
crucial that serious
attempts be made to ensure that damages awarded are commensurate with
the injury inflicted. However, our courts
should be astute to ensure
that the award they make for such infractions reflect the importance
of the right to personal liberty
and the seriousness with which any
arbitrary deprivation is viewed in our law ... Although it is helpful
to have regard to awards
made in previous cases to serve as a guide,
such an approach, if slavishly followed, can prove to be treacherous.
The correct approach
is to have regard to all the facts of the
particular case and to determine the quantum of damages on such
facts.”
[66]
In
De
Klerk v Minister of Police
[23]
the plaintiff was held in custody, without any infringement of his
physical integrity for a period of 8 days. the Constitutional
Court
granted R300 000.00 in 2018.
[67]
In
Phefadu
v Minister of Police
[24]
the plaintiff was severely assaulted by members of the police and he
suffered,
inter
alia
,
severe bruising to the left eye; severe bruising, abrasions and
lacerations to the face; a ligamentous injury to the left arm
and
shoulder; bruising and muscular injuries to the left arm and
shoulder; a deep laceration to the left shoulder; a concussive
type
head injury; emotional shock and trauma; and loss of earnings as well
as future loss of earnings and general damages. He was
kept in
custody for one day. The Court granted the present day value of
R468 000.00
[68]
Mr Matsoso did not give a comprehensive exposition of the
sequalae
of the prejudice he suffered. The facts of his case is
distinguishable as it was not as comprehensive as that in
Phefadu
supra
. He was, however kept in custody for a longer period.
[69]
In
Wigg
v Minister of Police
[25]
,
the plaintiff was in custody for 20 minutes but also strip searched.
The Court made reference to
Mandleni
v Minister of Police
[26]
where it was stated:
“
[13]:
“In Masisi v Minister of Safety and Security
2011 (2) SACR 262
Makgoka J very wisely in my view described the purpose of an award of
general damages in the context of a matter such as the present
as a
process in which one seeks to compensate a claimant for deprivation
of personal liberty and freedom and the attendant mental
anguish and
distress. The right to liberty is an individual's most cherished
right, and one of the foundational values giving inspiration
to an
ethos premised on freedom, dignity, honour and security. Its unlawful
invasion therefore struck at the very fundament of
such ethos. Those
with authority to curtail that right had to do so with the greatest
of circumspection, and sparingly. Where members
of the Police
transgressed in that regard, the victim of the abuse was entitled to
be compensated in full measure for any humiliation
and dignity which
resulted. To this may be added that where an arrest was malicious,
the plaintiff was entitled to a higher amount
of damages than would
be awarded, absent malice.”
[70]
In
Wigg
supra
the
court ordered R579 000.00. In
Lamola
v Minister of Safety and Security
[27]
the injuries consisted of a gunshot wound through the left side wall
of the chest at the 8lli intercostal space in the posterior
auxiliary
line. Internal damage was caused by the penetrating bullet. Both the
diaphragm and the liver were lacerated and internal
bleeding
occurred. In the emergency surgery that followed, a drain was
inserted after a medial laparotomy was performed to clear
the abdomen
of free fluids. He was left with scarring at the sites of the bullet
wounds, the drain and the abdominal incision.
In due course he
developed two incisional hernias that are significantly prominent in
addition to the permanent unsightly scarring.
Serious pain was
experienced throughout the wounding and the subsequent medical
treatment. He was hospitalised for two weeks, whereupon
he was taken
to police lock-up for two months.  he was held in a prison
awaiting trial for another 9 months. The Court awarded
R704 000.00.
[71]
In
Fisa
v Minister of Police
[28]
t
he
assaults were more serious than those perpetrated
in
Peterson
and
Poswa
[29]
.
What
was of concern to the court was the brazen and cruel manner in which
the assaults were perpetrated by the police officers.
The plaintiff
was detained for about 5 to 6 hours; was severely traumatised during
that period; and the
sequelae
of
the assaults were serious and would undoubtedly be long-lasting. His
post-traumatic stress resulted in an irrational fear of
police, which
he would probably endure for the rest of his life.
The
Court granted the present day value of R427 000.00.
[72]
In
Van
der Laarse v Minister of Police
[30]
the plaintiff was treated cruelly and kept under horrifying
circumstances from the moment of his illegal arrest, which took place

in the presence of acquaintances of him, tourists and the general
public. He was detained for a period of approximately three day
in a
hopelessly overcrowded container under filthy conditions. The court
ordered payment of
R467 000.00.
[73]
Ms Mofokeng refers to
Toloane
v Minister of Police
[31]
where t
he
plaintiff was in custody for a period of 66 days. He said that he did
not have warm clothes to wear; the cells were dirty; the
blankets
were dirty; the water was cold and he could not wash himself; the
food was bad and they were six (6) up to seven (7) people
in one
cell. He did not have visitors while in custody. He was transferred
to Grootvlei Correctional Centre, where the living conditions
were
even worse as they were up to 70 in one cell. The Court awarded
R250 000.00.
[74]
In
Mahlangu
and Another v Minister of Police
[32]
the
plaintiff was in custody for more than 8 months. The
quantum
was considerably increased from what the SCA ordered to R500 000.00
and R550 000.00 in respect of the two plaintiffs.
[75]
The cases of
Minister
of Safety and Security v Seymour
[33]
and
Ndlovu
v Minster of Safety and Security
[34]
are disguisable on the facts.
[76]
I conclude that the plaintiff was severely beaten with an instrument
issued to the police to handle with
responsibility. It became a
dangerous and potent weapon to assault the plaintiff. I accept that
his hands were swollen to the extent
that fingerprints could not be
taken immediately and that he was taken to hospital for a wound to
his head that was inflicted by
the baton. The conduct of Capt. Mandla
was wholly unjustified, not in compliance with any legislative powers
and a flagrant disregard
of the protection granted to all citizens by
the Constitution. It was uncalled for, especially where the plaintiff
was, on all
accounts, free to leave. The fact that he assaulted Mr
Matsoso who was an innocent bystander makes it even worse.
[77]
Having considered the facts, the attempt to justify it, the injuries
sustained by the plaintiff;
the period that the plaintiff was held in
custody, and case law, an amount of R350 000.00 would be fair
and justified.
[78]
There is no reason why costs should not follow the result.
ORDER
:
1.
The Minister of Police is ordered to pay
the plaintiff an amount of R350 000.00.
2.
The amount shall run interest at the
prescribed rate from the date of judgment to the date of payment.
3.
The Minster pays the plaintiff’s
costs.
P R
CRONJÉ, AJ
Counsel
for Plaintiff:
Adv
A Sander
Attorneys
for Plaintiff:
VZLR
Inc
Du
Plooy Attorneys
Bloemfontein
Counsel
for Defendant:
Adv
R B Mofokeng
Attorneys
for Defendant:
State
Attorney
Bloemfontein
[1]
The requirements were confirmed by the Constitutional Court in
De
Klerk v Minister of Police
[2019] ZACC 32.
[2]
Act 108 of 1996 -  “
12.
Freedom and security of the person.—(1)  Everyone has the
right to freedom and security of the person,
which includes the
right— (a) not to be deprived of freedom arbitrarily or
without just cause; (b) not to be detained
without trial;
(c) to be free from all forms of violence from either public or
private sources; ...”
[3]
Although there were differences in respect of the location of Senwes
on the map, it did not play a critical role in the trial.
[4]
Pillay
v Krishna and Another
1946 AD at 952-3;
Zealand
v Minister for Justice and Constitutional Development and Another
2008 (4) SA 458 (CC).
[5]
(12400/17;
12401/17) [2021] ZAGPPHC 290.
[6]
Le
Roux and Another v Minister of Police, Republic of South Africa and
Another
(1340/2018;1343/2018) [2022] ZAFSHC 316.
[7]
State
President v Tsenoli; Kerchhoff and Another v Minister of Law and
Order and Others
1986(4) SA 1150 (A) at p1186 C-D.
[8]
Act 51 of 1977.
[9]
Willie
v Minister of Police and Others
(A170/2019) [2020] ZAFSHC 122.
[10]
(1017/2020)
[2022] ZASCA 36
; see also
Minister
of Safety and Security v Sekhoto
2011(5) SA 367 (SCA).
[11]
2001
(2) SACR 703
(SCA)
para 19;
Minister
of Police and Another v Du Plessis
(666/2012) [2013] ZASCA 119; 2014 (1) SACR 217 (SCA).
[12]
“
36.
Limitation of rights.—(1)  The rights in the Bill of
Rights may be limited only in terms of law of
general application to
the extent that the limitation is reasonable and justifiable in an
open and democratic society based on
human dignity, equality and
freedom, taking into account all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose
of the limitation; (c) the nature and extent of the limitation;
(d) the relation
between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.”
[13]
Referred to above.
[14]
(CCT49/05)
[2006] ZACC 8; 2006 (10) BCLR 1133 (CC) ; 2006 (5) SA 250 ; 2006 (2)
SACR 447.
[15]
(CC27/2018)
[2023] ZAWCHC 184; 2024 (1) SACR 138 (WCC).
[16]
Prevention of Organised Crime Act, 121 of 1998
.
[17]
68
of 1995
.
[18]
2004
(2) SA 342
(T)
at 347D-E.
[19]
2011
(5) SA 367
(SCA).
[20]
1919
AD 175
.
[21]
(349/86)
[1988] ZASCA 66; [1988] 2 All SA 482 (A).
[22]
2009 (5) SA 85
(SCA) at 93 d-f.
[23]
De
Klerk v Minister of Police
[2019] ZACC 32.
[24]
(65249/2012) [2017] ZAGPPHC 583.
[25]
(2187/2019) [2022] ZAMPMHC 6.
[26]
Unreported judgment dated 24 April 2017, case number 37539/14.
[27]
(2007/26594)
[2012] ZAGPJHC 120.
[28]
(1263/2012)
[2016] ZAECELLC 1.
[29]
2009
6 QOD K6-1 (ECG).
[30]
(31378/2012)
[2014] ZAGPPHC 614.
[31]
(433/2019) [2023] ZAFSHC 3.
[32]
(CCT
88/20) [2021] ZACC 10; 2021 (7) BCLR 698 (CC); 2021 (2) SACR 595
(CC).
[33]
(295/05)
[2006] ZASCA 71; [2007] 1 All SA 558 (SCA); 2006 (6) SA 320 (SCA).
[34]
2013 JOL 29840
(ECG).