REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, JOHANNESBURG
(1) REPORTABJ,.E : YES;@
(2) OF INTEREST TO OTH ER JUDG ES: YES @
(3) REVIEWED :@'NO
In the matter between:-
.HECTOR TUMELO MABE
And
MINISTER OF POLICE
NATIONAL COMMISSIONER OF THE SOUTH
AFRICAN POLICE
CASE NO: 2019/23157
Plaintiff
First D efendant
Second Defendant
PROVINCIAL COMMISSIONER OF POLICE, GAUTENG Third Defendant
THE STATE ATTORNEY Interested Party
JUDGMENT
2
Raubenheimer AJ:
Summary
Order
In this matter I make the following order:
[1] The claim for unlawful arrest and detention is dismissed.
[2] The reasons for the order follow below.
Introduction
[3] This is an action for damages on the basis of unlawful arrest and detention by
employees of the 1 st defendant.
[4] The plaintiff alleges that he was arrested on 26 December 2017 in his
residential property and there after detained for 3 days in conditions that
were not commensurate with his dignity and human rights.
[5] The trial proceeded on merits and quantum.
[6] The arrest was not affected in terms of a warrant of arrest and consequently,
the defendant attracted the onus to prove reasonable grounds for the arrest.1
[7] The defendant called 2 witnesses to testify on its behalf, namely the
1 Brand v Minister of Justice 1959(4) SA 712 (A), Mhaga v Minister of Safety and Security [2001] 2 All SA
534 (Tk) Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A)
3
arresting officer and the official who assisted him in effecting the arrest.
The case for the defendant.
[8] The 1 st witness for the defendant was the arresting officer, warrant officer
Van Rensburg(Van Rensburg). He works at the Johannesburg flying squad
and has been a member of the South African Police Service (SAPS) since
1995 and consequently has 29 years of service as a police officer.
[9] On the night of the incident he was on duty doing general patrol duties
accompanied by his crew member.
(10] During the course of his shift he received a look out for a white Lexis motor
vehicle that was allegedly hijacked as well as a black Toyota Fortuner that
was allegedlY' used in the hijacking of the white Lexis Lexus.
[11] After receiving the lookout he started tracking the white Lexis on his Global
Positioning System (GPS). Before he succeeded in locating the Lexis on his
GPS, a colleague, warrant officer Botha. from the K9 division picked the
vehicle up on his GPS.
[12] When the lookout was broadcasted the details of both vehicles were
provided, namely the make, model, colour and registration number.
[13] Botha, after giving chase behind the Lexis found it abandoned and still idling
in the street. At that stage Van Rensburg had not yet reached the position
where Botha was standing off at the Lexis.
4
[14] Whilst standing off Botha observed a black Toyota Fortuner rounding the
corner into the street in which he was standing off at the Lexis.
[15] When the driver of the Fortuner saw the police vehicle he made a U-turn and
raced away.
[16] Botha gave chase and saw the Fortuner turn into the premises of a
residential property.
[17] Botha called for backup, which was provided by Van Rensburg who arrived
on the scene shortly thereafter.
[18] The two of them together with their crew members proceeded cautiously into
the premises in a tactical manner as the information provided to them was
that the hijackers were armed.
[19] When they approached the kitchen door, situated at the back of the
residence, they saw that the door was open and that the keys to the door
was still in the lock.
[20] They proceeded through the open door into the residential property where
they found the plaintiff in his bedroom busy undressing.
[21] Van Rensburg saw items in the room that have been reported to him to have
been stolen during the hijack of the Lexis, namely a laptop, a bunch of keys
and a digital camera.
5
[22] He contacted the complainant via the control centre to enquire of him.
whether the items found in the possession of the plaintiff belongs to him. The
complainant confirmed that the articles do belong to him.
[23] The description of goods matched the description of that which was
broadcasted.
[24] The registration number of the black Toyota Fortuner allegedly involved in
the hijacking matched the registration number of the vehicle that was found
on the premises.
[25] On closer inspection it was found by Botha that the engine numbers of the
vehicle had been tampered with.
[26] When Van Rensburg enquired about the Fortuner the plaintiff indicated that
it belongs to his brother.
[27] The plaintiff denied being involved in any hijacking or that the black Fortuner
was used in the hijacking. He could give no explanation for the goods found
on the premises, neither could he explain the tampering with the engine
numbers of the Fortuner.
[28] The plaintiff was the only person present on the premises.
[29] The plaintiff was arrested at around 23:00 on 26 December 2017 and taken
to the Maroka police station where he was detained until 29 December 2017
6
when he was brought before court and the charges were withdrawn.
Legal position
[30] Arrest without a warrant may only be effected as prescribed by section 40
and 41 of the criminal procedure Act, Act 51 of 1977 or if it is explicitly
authorised in terms of any other legislation.2
[31] The only purpose for effecting an arrest is to bring the person to be arrested
to court. Any other reason for effecting the arrets would render the arrest
unlawful.3
[32] In terms of section 40(1) of the CPA a person may be arrested if the police
officer reasonably suspects such person to have committed a Schedule 1
offence.
[33] The essence of the requirement is that the arresting officer must entertain a
reasonable suspicion in respect of the commission of a specific type of crime
by the person to be arrested.4
[34] The suspicion must firstly be based on factual grounds which forms the
foundation for the reasonableness of the suspicion.5
(35] The reasonable suspicion requirement is satisfied when:6
2 Sect 40(2) of the Criminal Procedure Act, Act 51 of 1977
3 Tsose v Minister of Justice 1951 (3) SA 10(A)
4
Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA)
5 Ralekwa v Minister of Safety and Security 2004(1) SACR 131 (T)
6
Duncan v Minister of Law and Order 1986(2) SA 805(A). Mabona v Minister of Law and Order 1988 (2) SA
654 (SE)
7
35.1 A reasonable person in the position of the police officer;
35.2 With the same information at his disposal that the police officer had;
35.3 Would have believed that there were sufficient ground for
suspecting that the person to be arrested had committed a Schedule
1 offence.
[36] When the mentioned jurisdictional facts are found to be present by the
arresting officer the discretion in terms of section 40(1 )(b) of the CPA arises.
[37] In the exercise of their discretion arresting officers are free to exercise their
discretion as they see fit subject to the rationality requirement. 7
[38] In the exercise of their discretion an arresting officer should keep the
guidelines formulated in Gellman v Minister of Safety and Security! in mind.
These requirements are as follows:
38.1 Consideration whether there are reasonable grounds for the
suspicion that a Schedule 1 offence was committed;
38.2 The existence of reasonable grounds should be determined with
reference to an analysis of the available evidence;
38.3 The arresting officer should endeavour to obtain corroborative
evidence and not only rely on the witness statements;
38.4 After concluding that there are reasonable grounds for suspicion the
arresting officer should then ascertain whether the circumstances
satisfy the requirements for effecting an arrest;
7 MR v Minister of Safety and Security 2016 (2) SACR 540 (CC)
8 2008( 1) SACR 446 (W)
8
38.5 In determining whether the circumstances satisfy the requirements
the arresting officer should adhere to any standing orders or national
instructions.
[39] The South African Police Service issued a national instruction dealing with
[40] The national instruction deals specifically with the concept of "reasonable
suspicion or grounds" to entail the following:
(i) he or she really 'believes' or 'suspects' it;
(ii) his or her belief or suspicion is based on certain facts from which he or
she has drawn an inference or conclusion; and
(iii) any reasonable person would, in view of those facts, a/so have drawn
the same conclusion.10
[41] The plaintiff was arrested for being in possession of a stolen motor vehicle
and stolen property.
[42] After his arrest the plaintiff was detained and was taken to court on 29
December 2017.His detention thus lasted for 2 days as he was taken to court
on the third day.
[43] No evidence were presented in respect of a bail application, neither is such
dealt with in the particulars of claim. It is not averred that he should have
been released on police bail in terms of section 59 of the CPA or that he
should have been granted bail by an authorised prosecutor in terms of
9
National Instruction 11 of 2019 issued in terms of Sect 25(2) of the South African Police Service Act, Act
68 of 1995
10 Par 5(2) National Instruction 11 of 2019.
9
section 59A of the CPA. Neither of these would in any case find application
due to the offences the plaintiff was arrested on does not fall within the ambit
of the mentioned provisions.
[44] The plaintiff was brought before court within the permissible 48 hours.11
Application
[45] The arresting officer and his assistant acted on information received from
their command centre.
[46] The command centre obtained the information from the local police station
within whose area the attempted hijacking had occurred.
[47] The information that was provided was accurate, timeous, comprehensive
and obtained from a complainant who had been the victim of a crime.
[48] The responding officers found the abandoned hijacked vehicle with the
engine still idling and while on the scene, encountered the other vehicle
involved in the hijacking, which then turned around and fled from the scene.
The police officer saw the vehicle turning into a residential premises.
[49] When the plaintiff was arrested. he was found in possession of goods
belonging to the complainant who identified the articles and confirmed his
ownership thereof.
11 Sect 50(1 )(c) CPA
10
[50] The police officers ascertained that the engine number of the black Fortuner
found on the premises where the plaintiff was arrested had been tampered
with.
[51] The police officers consequently had a reasonable suspicion that the plaintiff
was involved in the commission of a crime and therefore arrested him.
[52] None of the identifying features of the articles found in possession of the
plaintiff were disputed by the plaintiff, neither was any of the identifying
features of the Fortuner disputed by the plaintiff.
[53] No evidence was presented in respect of the legality of the further detention
of the plaintiff, neither was this aspect dealt with in argument by the plaintiff.
[54] In the light of the conclusion reached in respect of the arrest this aspect need
not further be dealt with.
Conclusion
[55] For the reasons above, I find that the defendants discharged the onus to
prove the existence of reasonable grounds of suspicion that the plaintiff was
involved in the commission of a crime.
[56] The claim for unlawful arrest and detention is therefore dismissed.
11
~ E Raubenheimer
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
JOHANNESBURG
Electronically subm;tted
De livered: This judgement was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically by circulation to the Parties/
their legal representatives by email and by uploading it to the electronic file of this
matter on Caselines. The date of the judgment is deemed to be 19 December
2024
COUNS EL FOR TH E APPLICANT:
INSTRU CTED BY:
COUNSEL FOR THE RESPONDENT:
INSTRUCTED B'(
LAS T DATE OF TRIAL:
HE ADS OF ARGUMENT FILED ON
DA TE OF JUDGMENT:
Adv WDavel
Spruyt Lamprecht & Du Preez
Attorneys
Adv OC Tommy
State Attorney
13 November 2024
6 December 2024
1 ~ December 2024