## IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
Case Number: A131/2024
## DELETE WHICHEVER IS NOT APPLICABLE
- REPORTABLE:
NO
- (2) OF INTEREST TO OTHER JUDGES:
- (3) REVISED: NO
DATE:
SIGNATURE:
In the matter between:
THE MINISTER OF POLICE
Appellant
and
SELLO JOHANNES MAKHATHOLELA
First Respondent
NOMVUYO VIOLET TEKA
Second Respondent
SIPHAMANDLA PETROS MKHONZA
Third Respondent
## JUDGMENT
## JANSE VAN NIEUWENHUIZEN J:
Introduction
[1] This appeal concerns the judgment and order of Acting Justice Phahlane (the court a quo) in a claim instituted by the respondents against the appellant for unlawful arrest and detention: The court a quo held that the appellant is liable
[2]
[3]
[4]
[5]
[6]
for the to detention.
The appellant's appeal; leave to appeal being granted by the court a quo, is directed at the aforesaid finding of the court a quo.
## Factual matrix
On 15 2015, the first and second respondents, both police reservists at Pretoria Central Police Station was instructed together with another police constable Masombuka, to the area around Bosman Street and reservist; to be on the lookout for suspected drug users . During the performance of their duties the police reservists accosted a certain Mr Hlongwane ("Hlongwane") May patrol their observations Hlongwane appeared to be under the influence of From alcohol. When the reservists interviewed Hlongwane;, their suspicion was arrested him for being drunk in public. Hlongwane was requested to accompany the police reservists to the police station. police they
On their way to the station they came across one of their colleagues, The third respondent informed them that he was on his way to Capitec Bank in Bosman Street to a bank account:. During the course of the aforesaid events Hlongwane open made a phone to his wife; sergeant Hlongwane, and informed her that "your subordinates had arrested me' police call thereafter a van appeared. The police van was driven by Shortly constable Ledwaba; and he was accompanied by sergeant Hlongwane. Without providing any reasons, the police reservists and the third respondent were searched by sergeant Hlongwane and constable Ledwaba. Constable Ledwaba found money in the possession of the third respondent and remarked that it is the money that was taken from him by the Hlongwane respondents. According to Hlongwane R 2000,00 was taken from him. police
[7]
- The respondents were informed by sergeant Hlongwane and constable Ledwaba that are under arrest for common robbery. Neither sergeant nor constable Ledwaba asked any questions or requested an Hlongwane explanation from the respondents to their arrest. they prior
- The appellant admitted that the respondents were arrested without a warrant [8] and pleaded that the arrest was lawful; in that the officers acted in terms of the provisions of section 40(1)(b) of the Criminal Procedure Act; 51 0f 1977. police
[9]
- testified: Sergeant Hlongwane confirmed that she received a call from Ledwaba her husband who had indicated that he had been robbed. She requested constable Ledwaba to accompany her t0 Bosman Street where her husband could be found. Upon their arrival they could not find her husband and she asked the hawkers in the area whether they had seen someone in the company officers. The hawkers informed her that they had seen a man who had of been assaulted by police officers and that the man had followed the police Bosman Street:. Significantly, the hawkers did not mention that a officers down robbery occurred. police
- Be that as it may. Sergeant Hlongwane and constable Ledwaba found her [10] husband in Bosman Street; and he pointed to two males and two females who in civilian clothes. Upon noticing that Hlongwane was in the company of were the police; the respondents ; who were some distance away; walked towards and stated that Hlongwane was drunk. She asked her husband for an them explanation and he stated that he was assaulted and searched by the respondents at Freedom supermarket:.
- informed the respondents that were going to be [11] Constable Hlongwane searched and whilst constable Ledwaba was busy searching the first the third respondent took out money from his pocket and said: "this respondent; to apply for a driver's licence with it: She asked the whether she could count the money and after counting the third respondent money she handed it to constable Ledwaba. they
- Constable Ledwaba testified that after stopping the vehicle; the respondents [12] approached them and did not attempt to run away. Constable Ledwaba confirmed that he searched the third respondent and that the third respondent had R 4 350, 00 in his hands. During cross-examination constable Ledwaba his version and testified that he found the money in the third changed respondent's pocket: He could not explain the contradiction in his evidence:
- to constable Ledwaba that he only relied on the statement of [13] Itwas Hlongwane and that he did not make any efforts to interview independent witnesses to establish the circumstances of the case. Constable Ledwaba When it was to him that this failure meant that he did not establish agreed. a reasonable suspicion to the arrest; he responded in the affirmative. put put prior
- Judgment and grounds of appeal
- In view of the aforesaid evidence; the court a quo found that constable Ledwaba [14] relied solely on the evidence of a single witness, to wit Hlongwane; when he the arrest. The court; furthermore; held that the fact that the third effected respondent had R 4 350, 00 in his possession; whereas only R 2000,00 was allegedly taken from Hlongwane should have concerned constable Ledwaba.
- with constable Ledwaba's admission that he did not make any [15] This fact coupled further enquiries and that he did not give the respondents an opportunity t0 state their version; resulted in the court a quo finding that constable Ledwaba's suspicion was not based on reasonable grounds .
- contended that the court a quo erred in finding that constable [16] The appellant Ledwaba's suspicion was not reasonable. The submitted that constable Ledwaba's failure to investigate the matter further was of no moment: According to the appellant an arrest is not unlawful merely because the arrestor information; the quality of which was not subjected to scrutiny. In this acted on the appellant referred to Mawu and Another v Minister of Police 2015 regard, (2) SACR 14 (WCC) and more specifically par [31]: appellant
To the extent that it is suggested that this passage is authority for the "[31] that for a reasonable suspicion to be formed the quality of the proposition information upon which the arrestor acts must be analysed and assessed and that acting on the information the quality of which has not been subjected to scrutiny will render an arrest unlawful; | disagree. am unable to find anything in the provision of s 40 (b) which leads to the conclusion that this is the A lawful arrest in terms of 5 40 (1) (b) can be made upon a requirement: And in Duncan v Minister of Law and Order 1984 (3)SA reasonable 460 (T) at 465 H the word "suspicion" was defined as meaning an absence of certainty and of adequate The Court on to refer to the remarks of Lord Devlin in the Privy Council in Shaaban Bin Hussien and Others v Chong Fook Kam and Another [19691 .3 ALL_ER_1626 at 1630 in which the word in its ordinary meaning "was defined as a state of conjecture or "suspicion' surmise where is lacking; suspect but cannot prove. Suspicion arises at or near the starting of investigation of which the obtaining of facie is [its] end" . suspicion; went proof: proof prima point proof
## Discussion
reasonableness of a suspicion depends on the facts of each case; As a [17] The starting point; it is apposite to have regard t0 the requirements for forming a suspicion. In Mabona and Another v Minister of Law and Others reasonable 1988 (2) SA 654 (SE) at 658E-H, the following formulated the requirements as follows:
"Would a reasonable man in the second defendant's position and possessed of the same information have considered that there were and sufficient grounds for suspecting that the plaintiffs were guilty of conspiracy to commit possession of stolen property knowing it to have been stolen? It robbery or to me that in evaluating his information a reasonable man would bear in seems mind that the section authorises drastic police action. It authorises an arrest on of a and without the need to swear out a warrant; ie the strength something which otherwise would be an invasion of private rights and personal The reasonable man will therefore analyse and assess the quality of the information at his disposal critically , and he will not accept it lightly or without good suspicion
checking it where it can be checked:. It is only after an examination of this kind that he will allow himself to entertain a suspicion which will justify an arrest : This is not to say that the information at his disposal must be of sufficiently high and cogency to engender in him a conviction that the suspect is in fact quality must be based upon solid grounds. Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion.
- [18] fully align myself with the aforesaid test The right to freedom is of paramount This much was confirmed in Duncan v Minster of Law and Order importance. 1984 (3) SA 460 (T) at 466 D-E:
2. "The power of arrest without a warrant is a valuable means of protecting the community . It should not be rendered impotent by judicial encrustations not intended by the Legislature On the other hand the law is jealous of the liberty of the subject and the police in exercising this power must be anxious to avoid mistaking the innocent for the guilty . They often have to act on the spur of the moment with scant time to reflect; but they should keep an open mind and take notice of every relevant circumstance pointing either to innocence or to guilt.
3. With the advent of our Constitution in 1996, the right to freedom and security of [19] the person was enshrined in the Bill of Rights and more specifically in section 12.
4. constable Ledwaba had ample time to interview witnesses at the scene [20] In casu of the alleged robbery. The respondents approached constable Ledwaba and there was no indication that they would run away The were, furthermore; colleagues of constable Ledwaba and he knew respondents where to find them in the event that an arrest was necessary Constable Ledwaba's conduct is in stark contrast to the requirement in Mabona that an arresting officer should not accept a version "lightly or without checking it where it can be checked" .
- [21] respondents which explanation could have been exculpatory. In Minister of
Police v Dhali i(CA327/2017) [2019] ZAECGHC 16 February 2019) the court stated the following at para [13]: (26
"Itis trite that police officers purporting to act in terms of Section 40(1)(b) of the Act should investigate exculpatory explanations offered by a suspect before they can form a reasonable suspicion for the purpose of lawful arrest "
- the aforesaid legal principles to the facts in casu; am of the view that [22] Applying the court a quo correctly held that constable Ledwaba's that the respondents committed robbery was not based on reasonable grounds . suspicion
## ORDER
In the result, propose the following order:
The appeal is dismissed with costs.
concur concur
## M. P. MOTHA
THE HIGH COURT, PRETORIA
JANSE VAN NIEWENHUIZEN
JUDGE OF THE HIGH COURT, PRETORIA
R. FRANCIS-SUBBIAH
JUDGE OF THE HIGH COURT, PRETORIA
Date of hearing:
07 October 2024
Date of judgement:
21 January 2025
## APPEARANCES
For the Appellant:
Advocate WN Mothibe
Instructed by:
State Attorney Pretoria
For the Respondents:
Advocate H Lekalakala
Instructed by:
MWIM & Associates Inc