THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 725/2023

In the matter between:
MINISTER OF POLICE APPELLANT
and
THANDEKILE SABISA FIRST RESPONDENT
LAWRENCE NZIMENI MAMBILA SECOND RESPONDENT

Neutral citation: Minister of Police v Sabisa and Another (725/2023)
2024 ZASCA 105 (28 June 2024)
Coram: MOCUMIE and MABINDLA-BOQWANA JJA and KOEN, COPPIN
and SMITH AJJA
Heard: 23 May 2024
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website, and release to SAFLII. The date and time for hand-down is deemed to be
11h00 on 28 June 2024.

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Summary: Delict – unlawful arrest and detention – Criminal Procedure Act 51 of
1977 (the Act) – execution of arrest with a warrant must comply with s 39(2) of the
Act – arrested person must be taken to the police station or any other place expressly
stated in the warrant of arrest in terms of s 50(1)(a) of the Act – arrested person to
be brought before a lower court in compliance with ss 50(1)(c) and 50(1)(d) of the
Act – further detention of the arrested person to be authorised by the court on
application by the prosecutor.

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ORDER

On appeal from: Eastern Cape Division of the High Court, Mthatha (Nhlangulela
DJP, sitting as court of first instance):
The appeal is dismissed with costs, including those of two counsel where so
employed.


JUDGMENT
Mabindla-Boqwana JA (Mocumie JA and Koen, Coppin and Smith AJJA
concurring):

Introduction
[1] The respondents, Mr Thandekile Nelson Sabisa and Mr Lawrence Nzimeni
Mambila instituted claims for damages in the Eastern Cape Division of the High
Court, Mthatha (the high court) , against the appellant, the Minister of Police (the
Minister) for unlawful arrest, unlawful detention and assault . Their matters were
consolidated and heard by Nhlangulela DJP, who found in favour of the respondents
and awarded each R400 000 for unlawful arrest and detention and R110 000 for
assault, torture and contumelia. He granted leave to appeal to this Court.

Background Facts
[2] On 18 April 2016, the respondents , who were councillors of the OR Tambo
District Municipality (the Municipality) , were arrested by members of the S outh

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African Police Service (SAPS) at the offices of the Municipality at Myezo Park in
Mthatha. At the time, Mr Sabisa served as the Deputy Executive Mayor while Mr
Mambila was a member of the Mayoral Committee responsible for technical
services.

[3] The respondents pleaded that they were arrested without warrants of arrest by
the members of the SAPS; that the police officers did not produce any warrants for
their arrest; and that there was no justification for executing the warrants, even if
those were available. They further pleaded that after the arrests they were detained
by members of the SAPS for nine days, without a reasonable and probable cause and
with the intention to injure them, and were assaulted and tortured which caused them
pain, shock and injuria, amongst other things. As a result, they claimed to have
suffered damages of R10 million each.

[4] The Minister filed a plea in which he admitted the arrests but denied that they
were unlawful. He averred that the respondents were arrested in terms of valid
warrants of arrest which were shown to them and that the police were justified in
executing the warrants. The Minister admitted that the respondents were detained by
the police on 18 April 2016 and on 19 April 2016 they were admitted to hospital
where they remained under guard until 26 April 2016. The Minister averred further
that the respondents remained in hospital on the authority of the Court. He denied
that the respondents were assaulted and tortured by the police.

[5] The respondents’ evidence was as follows. On the day of their arrests, they
were attending a Mayoral Committee meeting at the Municipality’s office s. At
approximately 15h00 a team of more than ten armed police officers arrived in about

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a dozen vehicles. These were apparently members of the Hawks and other several
unidentified police officers. Three of the police officers, namely, Detective Warrant
Officer Xolile Mdepa, Colonel Loyiso Mdingi and Captain Batandwa Hanise went
into the boardroom where the meeting was held. Col Mdingi pointed at the
respondents and advised the meeting that they were required in connection with the
attempted murder of one Mr Xolile Kompela and the murder of his bodyguard (the
Tsolo case). Mr Kompela was the Speaker of the Mhlontlo Local Municipality.

[6] Col Mdingi instructed the respondents to accompany the police officers to
their motor vehicles that were parked outside . The police seized the respondents’
licenced firearms and cell phones . The respondents were thereafter instructed to
board separate motor vehicles. The police left with them and drove towards the N2
East London direction. All the police vehicles that had arrived at the Municipality’s
offices drove in a convoy.

[7] They stopped by some office in Butterworth. The distance between Mthatha
and Butterworth is approximately 120 kilometres. It is about a one and a half to two-
hour drive. The respondents were taken inside the office in Butterworth, which is
not a police station . There, they were interrogated about the Tsolo case, assaulted
and tortured.

[8] Mr Sabisa was instructed to remove his clothes until he was left with just his
underwear on. There were policewomen present and this embarrassed him a great
deal. As this was taking place, he was told to speak the truth. His hands were cuffed
around the back of the chair, a tube was placed over his face and pulled at the back
of his neck, to the point that he could not breathe. The police officers kept asking

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him where he got the money he gave to Mr Mambila. He told them that he knew
nothing about the money, but they continued hitting him with fists and kicking him
on his back. Tears started flowing and he felt embarrassed, having to sob in front of
women. Capt Hanise kicked him hard with a knee on his private parts which led to
excruciating pain and increased body temperature.

[9] Mr Mambila was also instructed to remove the clothes on his upper body and
was handcuffed behind his back. He was also suffocated with a tube which covered
his eyes and nose and was beaten all over his body. A foot was placed on his hands,
which resulted in his chair falling over backward. He felt pain on his chest.

[10] At approximately 22h00, the convoy departed to Mthatha Central Police
Station (the Police Station). They arrived at the Police Station close to midnight and
were booked in and placed in the cells. On 19 April 2016, at approximately 03h00
in the morning, Mr Mambila was visited by an attorney in the cells. He told his
attorney that he had been injured and requested him to arrange for him to be seen by
a doctor. Mr Sabisa also reported the assault to his attorneys and requested them to
take the necessary steps to have those responsible face the law.

[11] That afternoon, the police arranged for the respondents to be taken to a doctor,
following the requests made by their attorneys. The respondents were booked out of
the cells and taken to a doctor. Mr Mambila had difficulty walking to the vehicle.
He had to make use of a walking stick. The doctor recommended that the respondents
be admitted to hospital. Mr Mambila was given an injection and was transported to
the hospital in an ambulance. The respondents were admitted to the same ward. They

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were shackled to their beds and guarded by the police. They had to get permission
from the police if they needed to relieve themselves.

[12] On 26 April 2016, the respondents noticed that the police guards had left
without any explanation. Their shackles were removed, and they were no longer
detained in custody. They however remained in hospital . Mr Mambila was
discharged from hospital on 28 April 2016 while Mr Sabisa was transferred to the
Mthatha General Hospital, as his medical aid cover w ould be exhausted on 1 May
2016.

[13] On 28 April 2016, the respondents attended the offices of the Hawks in
Mthatha, by arrangement, for the purpose of having summonses served on them in
respect of the Tsolo case. In terms of the summonses, the respondents had to appear
in the Tsolo Magistrates’ Court (the magistrates court) on 19 May 2016.

[14] On 19 May 2016, the respondent s appeared in the magistrates’ court, after
which the case was remanded on various occasions, with them warned to appear on
the subsequent remand dates. The charges were withdrawn against Mr Sabisa during
October 2016, and against Mr Mambila on 20 February 2017.

[15] All three policemen who were present at the time of the arrest, namely,
Warrant Officer Mdepa, Co l Mdingi and Capt Hanise , testified on behalf of the
Minister. They admitted the arrest in the boardroom, the drive to Butterworth and
the detention of Messrs Sabisa and Mambila in hospital, albeit denying that those
were unlawful. Their evidence, which I deal with in my analysis , was not cohesive
in many respects. For current purposes, their evidence was that the warrants of arrest

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were obtained on the strength of information obtained from a confession in the Tsolo
case, wh ich implicated the respondents in a plot to kill Mr Kompela. The
respondents were informed of their constitutional rights during the arrest.

[16] The high court found the arrest and detention of the respondents unlawful
because they were not brought before a court within 48 hours as envisaged in s 50
of the Criminal Procedure Act 51 of 1977 (the Act). Furthermore, they were detained
in hospital in custody without an order of court authorising their continued detention
beyond the mandatory 48-hour period. The high court further found the warrants to
be defective ‘to the extent that they did not authorize the arrestor to take the plaintiffs
to Butterworth’. As regards the assault, the high court accepted the respondents’
version.

[17] In its reasons for granting leave to appeal, the high court seemed to confine
the appeal to whether it had misapplied ss 44 and 51(1)(a) of the Act. To the extent
that it is not clear which aspects of the judgment are to be appealed against, the
approach I take favours the Minister. The Minister did not appeal the quantum
awarded.

On appeal
[18] Counsel for the Minister submitted that the police were armed with warrants
of arrest, the validity of which was not challenged, and that they had no discretion
but to arrest. He referred to the recent Constitutional Court decision of Groves N.O.

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v Minister of Police1 which held that s 43(2)2 of the Act ‘places a positive duty on
an arresting officer to arrest the person identified in the warrant with the use of the
word “shall”.’ The Constitutional Court held that a peace officer executing a warrant
has no discretion but to act in accordance with the terms of the warrant. However,
bearing in mind the principle of rationality, t here may be situations wher e the
arresting officer will have to make value judgment but that would only be:
‘[W]here the prevailing exigencies at the time of arrest may require him to exercise same; a
discretion as to how the arrest should be effected and mostly if it must be done there and then. To
illustrate, a suspect may at the time of the arrest be too ill to be arrested or may be the only caregiver
of minor children and the removal of the suspect would leave the children vulnerable. In tho se
circumstances, the arresting officer may revert to the investigating or applying officer before
finalising the arrest.’3

[19] In my view this case has less to do with whether the arresting officer had a
discretion to give effect to the warrants, but more with whether the execution of the
arrest, complied with the law. There are questions about whether the warrants were
ex facie defective by failing to indicate where the arrested persons should be taken.
It is however not necessary to decide that issue. The matter can be disposed of on
the factual basis, namely, whether the manner and effecting of the arrests complied
with the law.





1 Groves N.O. v Minister of Police [2023] ZACC 36; 2024 (1) SACR 286 (CC); 2024 (4) BCLR 503 (CC) paras 56
and 60.
2 Section 43(2) states that ‘[a] warrant of arrest issued under this section shall direct that the person described in the
warrant shall be arrested by a peace officer in respect of the offence set out in the warrant and that he be brought
before a lower court in accordance with the provisions of section 50’.
3 Groves N.O. fn 1 para 60.

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Was the arrest of the respondents lawful?
[20] In terms of s 39(1) of the Act an arrest may be effected with or without a
warrant, except if the intended arrestee submits to custody. Relevant for our purposes
is s 39(2) which provides that:
‘The person effecting an arrest shall, at the time of effecting the arrest or immediately after
effecting the arrest, inform the arrested person of the cause of the arrest or, in the case of an arrest
effected by virtue of a warrant, upon demand of the person arrested hand him a copy of the
warrant.’ (Emphasis added.)

[21] This section deals with two alternative requirements, ie the communication of
the reason for the arrest or in the case of an arrest effected by virtue of a warrant, the
handing over of a copy of the warrant upon demand. Non-compliance with s 39(2)
renders the arrest unlawful.4 These alternative conditions must occur at the time of
the arrest or immediately thereafter. The latter signifies an occurrence ‘as soon as
reasonably possible in the circumstances’.5

[22] In Minister van Veiligheid en Sekuriteit v Rautenbach 6 (Rautenbach), this
Court held that it is imperative that the persons arrested be informed, as soon as is
practically possible, of the reason for the drastic infringement of th eir fundamental
right to liberty. To achieve this objective, a strict rather than a loose application of
the statute’s requirements must be adopted.

[23] In the Rautenbach matter, the arresting officer had told the suspect that he was
arresting him on a warrant. The intended arrestee asked where the warrant was, and
the arresting officer told him he would give it to him as soon as the suspect had

4 Minister of Law and Order v Kader 1991 (1) SA 41 (A) at 46A-B.
5 Minister van Veiligheid en Sekuriteit v Rautenbach 1996 (1) SACR 720(A) at 729C-D.
6 Ibid.

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accompanied him to the police station. The intended arrestee refused to go until he
saw the warrant. The arresting officer arrested him anyway. The Court held that
s 39(2) assumes that the arrestor has a copy at hand when arresting so that he or she
can hand it over at the request of the arrestee. The Court found that the arrestor had
no intentions to comply with s 39(2) at the time of the arrest.

[24] Turning back to this case, t he respondents alleged that they were arrested
without a warrant and if there was one, it was not shown to them at the time or
immediately after they were arrested. In the first instance , to give effect to s 39(2)
the respondents had to be told that they were being arrested on the authority of a
warrant, otherwise how else would they know to request a copy? If they are not told,
it is reasonable for them to assume , as the respondents did, that they were being
arrested without a warrant.

[25] Counsel for the Minister submitted that it is sufficient that a warrant was
obtained, even if not in the possession of the arrestor at the time of the arrest. Such
a reading of the provision is untenable and goes against the primary object of the
section. The existence of a warrant ‘somewhere’ does not (by itself ) make the
execution of the arrest lawful. The arresting officer must be able to exhibit it to the
intended arrestee, at the time of the arrest or immediately thereafter , otherwise the
object of s 39(2) is defeated.

[26] In this case, t he evidence of the Minister’s witnesses was inconsistent in
material respects. Firstly, they contradicted each other as to who the arresting officer
was, and secondly, on whether the respondents were informed that they were
arrested on the authority of a warrant , and on whether it was exhibited to them .

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Warrant Officer Mdepa testified that he was the arresting officer. He stated that he
displayed the warrants to the respondents and informed them of their constitutional
rights and that they were being arrested in connection with a case of murder.

[27] Col Mdingi, on the other hand, in his evidence in chief mentioned a warrant
only in relation to Mr Sabisa. It was only in cross examination that he spoke about
Warrant Officer Mdepa having warrants for both respondents. Capt Hanise testified
that Col Mdingi was the arresting officer and that he had informed the respondents
of their constitutional rights and their right to remain silent . Most importantly , he
stated that Col Mdingi had no warrant of arrest in his possession when informing the
respondents about their rights.

[28] These contradictions were compounded further by the fact that, despite
Warrant Officer Mdepa’s testimony that he had shown the warrants to the
respondents, he wrote on the warrants themselves that they were executed on 19
April 2016, which is contrary to the alleged date of execution, namely, 18 April
2016.

[29] Furthermore, there was no mention in the investigation diary that the warrants
had been obtained by Warrant Officer Mdepa in Tsolo on 18 April 2016 and/or that
they were available and in his possession at the time of the arrest as required by the
Standing Order (General) 323 Investigation Diary (SAPS 5) (the Standing Order) .7
The Standing Order require d completion of the investigation diary, inter alia, to
contain a complete chronological record of all work done in the case, including when

7 Issued by Consolidation Notice 44 of 2012.

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a house or other place is visited, and the name and address of the person visited or
searched.

[30] Weighing the respondents’ evidence against that adduced on behalf of the
Minister on this issue , the probabilities favour the respondents’ version that they
were not informed of the existence of warrants by virtue of which their arrests were
to be effected. The Minister, accordingly, failed to show that the arrests were lawful.

Were the respondents lawfully detained after the arrest?
[31] The purpose of the arrest is to bring the arrested person before a court to face
justice. Section 50 regulates the process after arrest. Section 50(1) (a) provides that
any person arrested ‘shall as soon as possible be brought to a police station or, in the
case of an arrest by warrant, to any other place expressly mentioned in the warrant’.

[32] The warrants in this case do not indicate where the arrested persons had to be
taken. Most importantly, they did not direct that the respondents be taken to
Butterworth. At best for the Minister, although there was no indication of which
place the respondents must be taken to, on the warrants, they ought to have taken
them to a police station. It is not clear why they were not immediately taken to the
Police Station, but on a long trip to Butterworth, only to return later to Mthatha where
they were then detained.

[33] The Minister’s witnesses stated that the respondents were taken to the offices
of the Butterworth Crime Intelligence for questioning. Col Mdingi testified that the
reason why the respondents were taken to Butterworth was that, because there were
factions in the African National Congress, he did not know what would happen if

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people found out that their leaders were arrested. According to Warrant Officer
Mdepa, the respondents were prominent individuals, and their arrest could create
chaos in the community. This does not make any sense. The community would have
found out sooner or later about the respondents’ arrests. The important issue, in any
event, is that police officers are bound to act in accordance with the law.

[34] The Minister’s witnesses testified that the interviews in Butterworth were
short. In that case, it makes no sense, why the respondents would be kept there for
approximately five hours when they had indicated early on, at the mayor’s office,
that they wanted legal representation. To aggravate matters, there was no satisfactory
explanation in the evidence of the three policemen as to what actually transpired in
Butterworth, nor of any warning statements taken from the respondents . Warrant
Officer Mdepa testified that he only took the warning statements on 19 April 2016
at the hospital, an occurrence which was also not recorded in the investigation diary.

[35] The respondents, on the other hand, explained that they were arrested at
approximately 15h00 and arrived in Butterworth at approximately 17h30. They were
interrogated in Butterworth until 22h00 when the convoy returned to Mthatha. They
were only booked in the Police Station at approximately midnight (23h55). There
was no lawful purpose to take the respondents to Butterworth. The detention in
Butterworth after the arrest was, consequently, unlawful and not in compliance with
the requirements of s 50(1)(a) of the Act.

Was the further detention lawful?
[36] Section 50(1)(c) of the Act requires an arrested person to be brought before a
lower court as soon as reasonably possible, but not later than 48 hours after the arrest.

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Subsection (d)(i) states that if the period of 48 hours expires outside ordinary court
hours, the person may be brought before a lower court not later than the end of the
first court day.

[37] In terms s 50(1)(d)(ii) (the most relevant section for our purposes), if the 48-
hour period expires at the time when the arrested person cannot be brought before a
lower court, because of physical illness or condition, the court to which he or she
would have been brought, but for the illness, may on application by the prosecutor:
‘authorise that the arrested person be detained at a place specified by the court and for such period
as the court may deem necessary so that he or she may recuperate and be brought before the court.’

[38] The application envisaged in this section must set out the circumstances
relating to the illness or condition which the arrested person suffers from and be
accompanied by a certificate of a medical practitioner. Court o rders for further
detention at the said place may be similarly sought.8

[39] The respondents were shackled by the police in hospital for nine days , from
19 April 2016 after being booked out of the police cell in Mthatha until 26 April
2016. The period of 48 hours expired at 16 h00 on 20 April 2016. Neither of the
respondents was brought before a lower court to appear , nor was authorisation
sought on 20 April 2016 or thereafter for their detention in hospital. The Minister
pleaded that the respondents were detained in hospital on judicial authority. There
is, however, no evidence of any court order in terms of s 50(1)(d)(ii) to that effect.


8 Section 50(1)(d)(ii).

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[40] Counsel for the Minister argued that the words ‘Acc 3 and in absentia –
reported to be admitted in hospital’, appearing in the record of the proceedings of
20 April 2016, in the magistrates’ court, should be read as a court order remanding
the respondents in hospital. This statement is a far cry from being a court order, let
alone a court order complying with the requirements of s 50(1)(d)(ii). Firstly, there
was no application by the prosecutor supported by a medical certificate. Secondly,
there was no court order authorising and specifying the place and the period of
detention.

[41] The record of proceedings of 26 April 2016 in the magistrates’ court puts paid
to the Minister’s case. The magistrate ordered the release of the respondents on the
strength of the submissions by the respondents’ counsel , who appeared in the
magistrates’ court, that their further detention contravened s 50(1) of the Act.

[42] Confronted with these difficulties, counsel for the Minister, for the first time,
and at the hearing of the appeal, placed reliance on s 39(3) of the Act which provides:
‘The effect of an arrest shall be that the person arrested shall be in lawful custody and that he shall
be detained in custody until he is lawfully discharged or released from custody.’

[43] He submitted that by virtue of this provision the respondents were in lawful
custody until they were released by the court order on 26 April 20 16. This , he
contended, must be considered with the fact that the court had at the previous hearing
remanded the respondents ‘in absentia’. Based on this new argument, he moved for
an amendment to the plea to include this new defence.

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[44] An amendment of the plea will not assist the Minister, on the simple basis
that, counsel’s interpretation of s 39(3) is incorrect. In Minister of Justice and
Constitutional Development and Another v Zealand,9 this Court said:
‘Section 39(3) provides for lawful detention during the period between lawful arrest and the first
court appearance.’ (Emphasis added.)

[45] Section 39(3) provides for detention from the time of arrest until the first court
appearance. That first detention must itself be lawful , which requires that it must
have been preceded by a lawful arrest. In other words, the section presupposes that
s 39(2) would have been complied with. Reading s 39(3) in any other way would
deprive s 39(2) of any force.

[46] The subsection does not allow for perpetual detention until the court has
‘finally spoken’, even when the arrest was unlawful . Such a construal of the
provision would infringe upon the detainee’s fundamental right to liberty. In
addition, it would directly offend against the provisions of s 50(1) that require an
arrested person to be brought before a lower court without delay and no later than
48 hours. The Minister’s counsel’s interpretation is clearly untenable on any reading,
also because it would confer unbridled power upon arresting police officers. In the
circumstances, the further detention of the respondents after the expiry of the 48-
hour provision, was unlawful.

Were the respondents assaulted?
[47] The probabilities regarding whether the assault took place favour the
respondents. They were kept in an office in Butterworth for approximately five hours

9 Minister of Justice and Constitutional Development and Another v Zealand [2007] ZASCA 92; 2007 (2) SACR 401
(SCA) para 10.

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with no clear justification for such length of detention being given by the Minister’s
witnesses. As stated, no plausible explanation was provided as to why the
respondents were only booked into the police cells, at the Police Station, just before
midnight, having been arrested at about 15h00.

[48] The respondents’ evidence on the other hand was clear and cogent. It was
supported by the entries in the occurrence book. They told their attorneys at the first
available opportunity that they had been assaulted and were injured. The occurrence
book reflects that at 10h30 and 11h00 on 19 April 2016, the respondents’ attorneys
consulted their clients and requested that the police accompany the respondents to
hospital as they were complaining of body pains. Mr Mambila testified that he had
to use a walking stick to go to the vehicle. The respondents were taken to a doctor
who recommended that they be taken to hospital. Mr Mambila had to be transported
by an ambulance from the doctor’s examination room to hospital, due to his serious
condition. The fact that the doctor was not called to testify or that the full medical
record of Mr Mambila was not presented, is of no moment given the common cause
facts which amply support the respondents’ evidence of assault.

[49] For these reasons, the appeal must fail. It is accordingly dismissed with costs,
including those of two counsel where so employed.



___________________________
N P MABINDLA-BOQWANA
JUDGE OF APPEAL

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Appearances

For the appellant: V Notshe SC with A Magadla
Instructed by: State Attorney, Mthatha
State Attorney, Bloemfontein

For the respondents: N Mullins SC with L Kroon
Instructed by: Mvuzo Notyesi Inc, Mthatha
Phalatsi & Partners, Bloemfontein.