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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE LOCAL DIVISION – MTHATHA)

Reportable
Case no.: 2579/2020
Matter heard on: 28, 29 and 30 October 2024
Judgment delivered on: 17 December 2024

In the matter between:

T[...] N[...] Plaintiff

And

THE MINISTER OF POLICE Defendant

JUDGMENT

ZONO AJ

Introduction

[1] This is a claim for damages arising fr om plaintiff ’s arrest and detention which
allegedly took place on 7 June 2019 and on 2 August 2019. The plaintiff
instituted his claim against the defendant, Minister of Police on 12 August 2019.
The defendant defended the matter by filing his notice to defend and the plea.

[2] On the date of trial the parties jointly made an applicati on for the separation of
issues, with the issue lability to be dealt with first and quantum to stand over for
later determination. I duly granted such an order. Then, what se rved before me
was whether the plaintiff’s arrest by members of the defendant on two different
occasions, to wit 7 June 2019 and 2 August 2019 respectively was wrongful and
unlawful.

[3] The pa rties appositely dealt with their respective cases in their respective
pleadings, and later on in evidence. It is fitting to reflect on their respective cases
as foreshadowed in their respective pleadings.

The Pleadings

Plaintiff’s Case

[4] The plaintiff avers in this particular of claim that he was wrongfully and unlawfully
arrested by Constable Ginya w ithout a warrant of arrest on 7 June 2019 for
having allegedly committed an offence of rape. The plaintiff was humiliatingly
arrested in full view of members of community whilst in a traditional ceremony at
his vil lage. The plaintiff was thereafter taken in a police van to Xhor a Police
Station for detention where he allegedly spent hours without being charged or
locked in the police cells due to the fact that police cells were full. He was
thereafter trans ported bac k to his home where he was inform ed by Constable
Ginya that he was still under arrest and imposed conditions of his release.

[5] The plaintiff further avers that on 2 August 2019 he was wrongfully and unlawfully
arrested by three police officers whose par ticulars were to th e plaintiff unknown
for the same alleged offence of rape. The arrester too, was without a warrant, the
plaintiff was taken also in this instance in a police van to Xhora Police Station
where he was detained. His first appearance in court was on 5 August 2019
where his case was postponed for bail application and the bail was oppos ed on
instruction of Constable G inya. The plaintiff was released on 2 Octo ber 2019 at
the happenstance of Constable Giya informing the court that the state ’s case is
very weak against the plaintiff. This was said in the context of bail application in
terms of which the plaintiff was released by the court on wa rning. His bail was in
unnecessarily opposed.

[6] The plaintiff avers that in both instances the members o f defendant had no
reasonable suspicion that plaintiff had committed the alleged offence. He was
arrested when the police officers had no evidence that he had committed the
crime of rape. The second incident of his arrest occurred when he had not
breached or violated any of the conditions imposed by Constable Ginya. The
police officers failed to inform the Public Prosecutor and the court that the case
against the plaintiff was very weak, w hen the matter was postponed on two
previous occasions.

Defendants Case

[7] The defendant in his amended plea denies that the plaintiff ’s arrest was wrongful
and unlawful and avers that the plaintiff was arrested as he was reason ably
suspected to have committed a Schedule 1 (one) offence. Constable Ginya,
when arresting t he plaintiff invoked the provisions of Section 40 (1) (b) of the
Criminal Procedure Act 51 of 1977 as amended. Ginya reasonably believed that
the plaintiff had committed a sexual assault against a victim who was of unsound
mind. He re lied on affidavits dep osed to by witnesses and the plaintiff failed to
proffer exculpatory facts or evidence to Ginya.

[8] The defendant avers that plaintiff’s criminal case was opened and he was caused
to appear in Mqanduli Magistrate ’s Court on 5 August 2019 where the plainti ff
was legally represented by Ms Jolobe , an attorney from Legal Aid Board. On 5
August 2019 the matter was remanded for formal bail application by consent with
plaintiff legal representative. The state and the plaintiff ’s legal representative s
found each other about the fact that the plaintiff was facing a schedule 5 offence
which necessitated a formal bail application which w as postponed on several
occasions by consent.

[9] On 12 August 2019 Constable Ginya deposed to an affidavit consenting to the
plaintiff being released , on bail, thereby not opposing plaintiff’s release on bail.
The defendant disputes that he is liable for plaintiff’s continued detention and
avers that he was not responsible for further postponements as those
postponements were authorized by court. The defendant concludes that plaintiff’s
further detention was lawful.

In Court

[10] Having dealt with the separation of issues, the court had to grapp le with the
issues of onus and duty to begin. Determin ation on those issues must justifiab ly
be guided by legal principles.

[11] In Hurley1 Rabie CJ held:

“An arrest constitutes a n interference with the liberty of the Individual
concerned and it therefore seems fair and just to require that the person
who arrested or caused the arrest of anot her person should bear the onus

1 Minister of Law and Order v Hurley 1986 (3) SA 568 (A) at 589 E-F
of proving that his action was justified in Law.” This principle was followed
in a number of decisions2.

[12] It has long been firmly established in our common law that any interference with
physical liberty is prime facie u nlawful. Once the claimant establishes that an
interference has occurred, the bur den falls upon the person causi ng that
interference to establish a ground of justification. Accordingly, it was sufficient in
this case for the plaintiff simply to plead that he was unlawfully arrested and
detained. The defendant then bore the burden to justify the deprivation of liberty,
whatever form it may have taken 3. The Constitution enshrines the right to
freedom and security of the person including the right not to be de prived of
freedom arbitrarily or without just cause, as well as the found ing value of
freedom4. The state must respect, protect, promote and fulfil the rights in the Bill
of Rights 5, including the right to Human Dignity 6. He who interferes with these
rights must accordingly justify his actions. In line with this established
jurisprudence the parties agreed that the defendant bore the onus of proof and
had a duty to begin.

Defendant’s Evidence

[13] The defendant called the evidence of a single witness, Sergeant Xolisa Ginya,
who was regarded as an arresting officer. He testified that he received the docket
in February 2019 in terms of which the plaintiff was a suspect in a charge of rape
of a mentally handicap person, N[...] R[...]. M[...] R[...] was a compl ainant in the
case on behalf of N[...] R[...]. In the course of his investigations, he sought
explanation and statement s from the victim and witnesses in relatio n to the
criminal complaint laid against the plaintiff.

2 Minister of Safety and Security v Sekhoto 2011 (5) SA 367 SCA Para 8
3 Zealand v Minister for Justice and Constitutional Development and Another
2008 (2) SACR (1)(CC) Paras 24 – 25.
4Section 12 (1) of the Constitution
5 Section 7 (2) of the Constitution
6 Section 1 (a) and 10 of the Constitution.

[14] It became apparent that Ginya wou ld not obtain a satisfactory explanation from
the victim , N[...] R[...] for she was incoherent in her narration of the incident s.
What she would constantly say is that “ I do not like what my grandfather did to
me.” Ginya testified that they referred the victim to a psychologist. No report was
ever received from the psychologi st. Ginya testified further that he interviewed
one M[...]2 R[...] and M [...] R [...] (mother).

[15] Ginya was informed that M [...]2 was sent with N[...] (victim) by M[...] (mother) to
the p laintiff to fetch potatoes and some money . T he plaintiff, waking up from
sleep, sent M[...]2 to the local shop and N[...] was left only with the plaintiff. When
M[...]2 came back from the shop, he and N[...] went back to their home, although
N[...] was walking slowly behind. On their arrival at home N[...] stated that she
does not like what the grandfather did to her. She complained of waste pains. It
is on that information that M[...] went to open a case against the plaintiff.

[16] According to Ginya , N[...] was taken to Thuthuzela Care Centre for examination
where J88 report form was completed and affidavit in support thereof was
deposed to by Dr Ntloko as a doctor who examined her. Armed with the
statement obtained from victim, witness and J88, he proceeded t o look for the
plaintiff in vain as he wanted to interview him and get his side of the story. He
altimately found him on 7th June 2019. Ginya told the plaintiff that he is implicated
in a rape case. He requested a statement from the plaintiff and upon agreement,
he took the plaintiff to Elliotdale (Xhora) Police Station to take his statement.
Ginya emphasized that he was not satisfied with N[...]’s explanation or statement
as it was incoherent and dubious. Ginya took the plaintiff and dropped him off on
a tarred road not far from his home. He insisted that he took the plaintiff for an
interview and he was not arresting him on 7 June 2019.

[17] Ginya testified that , long after 7 June 2019 he did not receive the psychologist
report because of non-payment, but curiously he kept on waiting and checking
for it. Ginya was verbally advised by the psychologist that N[...]’s cognitive
capacity is equal to that of a person who is 12 years old, although she was 31
years of age. The basis for sharing that information is not apparent, especially
that the report was withheld for non -payment. He testified that he received
complaints from the complainant that the plaintiff passes some threats that if they
do not withdraw the case, he would not give them food. It is not clear where he
got that complaint.

[18] On 2 August 2019 Mqanduli Police Officers were assisted by other police officers
from other stations as they lacked resources. The work for that day was divided
between different groups and a police officer by the name o f Mqomboti and his
team was allocating N[...]’s case docket. Ginya testifi ed that Mqomboti,
Rapubeng and a nother police officer went to visit N[...]’s home where they were
advised of the threats the plaintiff was making to N[...]’s family. Mq omboti is
called Ginya. After narra ting the story of the alleged threats by the plaintiff,
Mqomboti sought confirmation if he may arrest the plaintiff. Ginya did not object
to the arrest of the plaintiff. Mqomboti proceeded to arrest the plaintiff on the
same day and was caused to appear in court on the 5th of August 2019.

[19] On the 5 August 2019 Ginya advised the public prosecutor, Mr Mampangashe
that he does not oppose bail. Mr Mampangashe instructed him to make a sworn
statement to that effect. The matter was there after postponed to 14 August 2019
by agreement with plaintiff’s legal representative. The affidavit was only made on
12 August 2019. The matter was ultimately struck off the roll on 18 December
2019.

Plaintiff’s Evidence

[20] Plaintiff’s narrative start s on 7 June 2019 when he was visited by Ginya at a
traditional ceremony at his locality in another homestead. One Bhimbi, a local
man, advised plaintiff that he was being asked to attend to the vehicle that was
not far. He indeed attended to the vehicle an d found Ginya in the vehic le whom
he did not know before. After confirmation of plaintiff’s name, Ginya informed the
plaintiff that he was arresting him in connection with the rape case in which the
plaintiff was a suspect. He , at the happenstance of infor ming the plaintiff of the
arrest, ordered the plaintiff to board the vehicle. The plaintiff, after entering the
vehicle did not know where they were going. They passed Mqanduli and stopped
at Xhora Police Station.

[21] On their arrival at Xhora Police St ation, Ginya ordered the plaintiff to go and stop
behind the police counter where other police officers were. Ginya further
instructed the plaintiff to take off his belt, shoelaces and that he must switch off
his cellphone and the plaintiff obliged. He was next ordered to remain in a squat
position for a while and he complied. Ginya instructed other police officers to
detain the plaintiff but was advised that the cells were full.

[22] Ginya then requested an office in which to consult with the plaintiff. H e asked the
plaintiff if he knew N[...], to which question the answer was in the affirmative. He
further asked if the plaintiff raped N[...] and the plaintiff denied that. The plaintiff
was requested to make a statement which Ginya was recording down. A fter
finishing recording the statement , the plaintiff was asked to sign the same .
Plaintiffs’ fingerprints were taken and thereafter the plaintiff was taken back and
dropped off on the road as Ginya adv ised plaintiff that he was rushing to arrest
someone. Whe n they were parting ways Ginya took the plaintiff’s number and
imposed conditions of plaintiff’s release.

[23] The plaintiff was arrested again on 2 August 2019 by three unknown police
officers: Two males and one female, after having been called by a fema le police
officer asking plaintiff ’s whereabouts. He was arrested in a humiliating manner
and detained in Xhora police cells. He appeared on 5 August 2019.

[24] Wherein Mqanduli Magistrate ’s Court holding cells the p laintiff was visited by
Ginya who enqui red about the details of his arrest a nd the names of the police
officers who arrested him as Ginya stated that he did not send them. The matter
was postponed until 2 October 2019 when he was released on warning. The
case was withdrawn on 18 December 2019.

Analysis and Discussion

[25] The liberty of the individual is one of the fundamental rights o f a man in a free
society which should be jealously guarded at all times and there is a duty on our
courts to preserve this right against infringement 7. Unlawful arrest and detention
is a delict comprises wrongful culpable conduct by one person that factually
causes harm to another person that is not too remote. When the harm in
question is a violation of personality interest caused by intentional conduct, then
the person who suffered the harm must institute the action based on “action
iniuriarum” for non -patrimonial damages to claim compensation for the non -
patrimonial harm suffered8. The harm that the plaintiff complains of in respect of
his arrest is the deprivation of his liberty – a significant personality interest.

[26] It is well established that the purpose of arrest is to bring the suspect to court for
trial9. In dealing with this rudimental purpose of arrest I need to focus my
attention on the first alleged arrest and deprivation of liberty that took place on 7
June 2019. I am mindful of the fact that the defendant in his amended pleas
offers only a bear denial and put plaintiff to proof of the f ollowing averments
contained in the particulars of claim:


7 Thandeni v Minister of Law and Order 1991 (1) SA 702E at 707B.
8 De Klerk v Minister of Police 2021 (4) SA 585 (CC) Para 13
9 Minister of Safety and Security v Sekhoto and Another 2011 (5) SA 367 SCA Para 42 and 44; De Klerk
v Minister of Police 2018 (2) SACR 28 SCA Para 14
“4. On or about the 7th of June 2019 at about 11h00 and at Ceza
Administrative Area, the plaintiff was wrongfully and unlawfully arrested by
Constable Ginya for an alleged offence of rape without a warrant.”

[27] In evidence Ginya was undeterred to lead the evidence that on 7 June 2019 he
did not arrest the plaintiff b ut took him for the interview. Th is issue was fully
canvassed by bo th parties in evidence even though it was not sufficiently
covered by the pleadings. In Slabbert10the Supreme Court of Appeal held that a
court is not bound by pleadings if a particular issue was fully canvassed during
the trial. For this proposition the SCA relied on the following dictum made in
South British Insurance Co. Ltd11. “However, the absence of such an averment in
the pleadings would not necessarily be fatal if the point was fully canvassed in
evidence. This means, fully canvassed by both sides in the sense that the court
was expected to pronounce upon it as an issue .” The plaintiff went at great
lengths to cross examination Ginya about the incident of 7 June 2019 and
plaintiff testified at le ngth to show that he was arrested on 7 June 2019. I
accordingly am at liberty to pronounce on the issue of the incident that took place
on 7 June 2019.

Alleged Arrest of 7 June 2019

[28] The plaintiff pertinently averred and testified that on 7 June 2019 he was called
by one B himbi to attend to the motor vehicle as the occupant of the vehicle
wanted him. On his arrival at the vehicle, he was advised by the occupant in the
motor vehicle, who happened to be Ginya . O f importance Ginya advised the
plaintiff that he was arresting him for an alleged offence of rape. Having been
directed to board into a motor vehicle, the motor vehicle drove off and he was not
aware where they were going.


10 Minister of Safety and Security v Slabbert 2010 (2) All SA 474 (SCA) Para 12 and 22
11 South British Insurance Co. Ltd v Unicorn Shipping Lines (Pty) Ltd 1976 (1) SA 708 (A at 714 G.
[29] It was never gainsaid for or on behalf of the defendant that the plaintiff was never
advised of where they were going after having boarded into a vehicle and
advised that he was being arrested. The plaintiff noticed that they arrived in
Mqanduli but did not go to Mqanduli Police Station, but instead pass ed the town
of Mqanduli and their alternate destination was Xhora Police Station. Even at the
stage when they arrived at Mqanduli, no indication was given to the plaintiff as to
where they were going.

[30] Ginya, however sought to paint a picture that he and the plaintiff had a rapport,
on 7 June 2019. Ginya testified that he took the plaintiff for questioning and was
not arresting him. The defendant took stalk of the fact that the plaintiff was not
handcuffed and was sitting with Ginya in the front seat of the vehicle.

[31] Lack of communication of the place where they were going, when the plaintiff
was taken by Ginya from the traditional ceremony in his village and when they
passed the town of Mqanduli is in direct contrast with the picture of rapport that
sought to be painted by the defendants’ witness. There is no su ggestion at all
that the two occupants in the vehicle were talking. That is inconsistent with the
fact that the two vehicle occu pants had a rapport. I am therefore not inclined to
accept the defendants’ version in this regard.

[32] One other aspect is that of the plaintiff who was not given any opportunity to go
to the people with whom he was before Ginya’s arrival, to tell them t hat he was
being cordially taken by Ginya for questioning. The plaintiff testified that Ginya
used his authority to order him to board into the vehicle. This is consistent with
the probability that a person cannot first allocate himself a seat in somebody’ s
vehicle; he would probably be told to board and be advised where to sit. I
therefore accept that Ginya used his authority in dealing with the plaintiff and the
plaintiff had no much of a choice under the circumstances. That is why the
plaintiff left the people in the ceremon y without saying goodbye. That general
atmosphere is indicative o f a plaintiff who was submitting to the authority of
Ginya; and that the atmosphere is consistent with the plaintiff who regarded
himself to be under arrest. He understoo d himself to be under the authority of
Ginya. He surrendered himself to the co ntrol of Ginya. From the point where he
was arrested, the plaintiff exercised no freedom and liberty. Plaintiff’s freedom
and security12 was severely violated at the hands of Ginya.

[33] Defendant’s denial that plaintiff was not arrested on this day is preposterous.
Plaintiff was advised by Ginya that he was under arrest when he was taken from
the traditional ceremony. Even the manner in which the plaintiff was dealt with in
the police station demonstrates that he was dealt w ith as an accused as well as
an arrested person, as I set out to demonstrate hereunder.

[34] A warning statement in terms of Section 35 of Act No. 108 of 1996 was
completed and signed at the instance of the police officer, Ginya. Ginya signed at
all designated spaces in the form written as follow:

Signed ….
[No. Rank and signature of the member administered arrest]

Ginya’s force or employee number, signature, rank and his surname appear in
the designated s paces. Ginya signed the warning form as a member of SAPS
Administering the arrest. He understood his conduct to be that of arresting the
plaintiff. He considered himself to be the person who was administering the
arrest. The plaintiff, under the authority of Ginya signed the same documents as
an accused as well as an arrested person in the designated spaces.

[35] The following question in the warning form appear to have been dealt with by
both Ginya and the plaintiff:


12 Section 12 (1) (a) of the Constitution
“Did the person who effected the arre st inform you in a language which
you understand that:
(a) He/she is a police officer? Yes/No
(b) He/she is arresting you? Yes/No
(c) He/she has told you the reason for your arrest? Yes/No
(d) …..
(e) You are entitled to legal assistance? Yes/No

All of the aforesaid question were ticked yes, meaning that they were
answered in the affirmative. The questions relate to the arrest of the
plaintiff.

[36] Section 35 of the Const itution, in terms of which the form aforesaid was
formulated and prepared deals with the rights of the arrested, detained and
accused persons. I reject defendants’ version that the warning form was used
instead of an interview form regarding the interview with suspect. Fortunately,
both forms a before court. They are completely different, with a diff erent purpose
and questions. They could not have been used inter changeably . I therefore
come to a conclusion that the plaintiff was arrested by Constable Ginya on 7
June 2019.

[37] The question of lawfulness or otherwise of the arrest was never an issue as the
defendant’s position was clear that there was no arrest on 07th June 2019. No
case was made out by the defendant in the light of this stance, that the arrest
was lawful. Having stated that “ every interference with physical liberty is prima
facie unlawful13”, the defendant, as a party who bears the onus, failed to justify
the deprivation of liberty whatever form it may have taken. Plaintiff’s freedom and
liberty was ostensibly interfered with when he was taken from the traditional
ceremony in his villa ge. I have no evidence upon which I can base a finding that

13Zealand v Minister for Justice and Constitutional Development 2008 (2) SACR (1) (CC) Para 25,
the plaintiff’s arrest of 7 June 2019 was lawful. I accordingly find that plaintiff was
unlawfully arrested by Constable Ginya on 7 June 2019.

[38] I have not closed my eyes and ears to defendant ’s evidence that Constable
Ginya received the docket in February 2019 and he did not effect the arrest until
the 2 August 2019 because he did not have enough information in the docket
upon which he would reasonably suspect that plaintiff committed the offe nce of
rape. All what that means is that on 7 June 2019, Constable Ginya did not have
the necessary and sufficient information to find a reasonable suspicion that a
crime of rape was committed. It is for that reason Constable Ginya sought to
deny that on 7 June 2019 he arrested the plaintiff. Unfortunately, the plaintiff was
arrested without any reasonable suspicion that a cas e of rape was committed.
No ground of arrest without a warrant was pleaded or canvassed in evidence to
justify the arrest of 7 June 2 019. This now takes me to the arrest of 2 August
2019.

Arrest of 2 August 2019

[39] In Coetzee14 O’Regan J said:

“There are two different aspect of freedom: the first is concerned
particularly with the reasons for which the state may deprive someone of
freedom [the substantive component]. And the second is concerned with
the manner whereby a person is deprived of freedom [the procedural
component]… constitution recognizes that both aspects are important in a
democracy: the state may not deprive its citizens of liberty for reasons that
are not acceptable, nor, when it deprives its citizens of freedom for
acceptable reasons, may it do so in a manner which is procedurally
unfair15”. Both the substantive (reasons) and procedural components or

14 S v Coetzee 1997 (3) SA 527 (CC); 1997 (4) BCLR 437 (CC); 1997 91) SACR 379 (CC)
15 De Lange v Saints N.O. and Others 1998 (3) SA 785 (CC; 1998 (7) BCLR 779 (CC) at Para 18
aspects of one’s liberty must sufficiently be dealt with and they must exist
as that is what Section 12 (1) (a) of the constitution requires. Both the
reasons for the arrest and the procedure followed to arrest must justify
citizen’s arrest.

[40] The evidence by Constable G inya sho ws that, for plaintiff’s arrest of 2 August
2019, Mqanduli Police was assisted by other stations to do their work. The work
and dockets were divided among the poli ce officers who were present. Of
fundamental importance, Officer Mqomboti was assigne d the docket of the
plaintiff to deal with. No specific instruction was given at the time of assignment
to Officer Mqomboti about the method or manner on how he must discharge or
execute his duties. It is not Ginya who assigned work to Mqomboti and h is team.
Mqoboti, Repuleng and another poli ce officer went to complainant’s homestead,
where complaint s relating to threats the plaintiff was alleged making to the
complainant and her family were received. On the basis of those complaints
Mqomboti called Ginya a nd sought confirmation or views on whether he may
arrest the plaintiff. Mqomboti merely consulted Ginya. Ginya did not oppose that
the plaintiff may be arrested.

[41] On the str ength of the complaints and that no objection or opposition by
Constable Ginya , Mqombothi proceeded to exercise his discretion to arrest the
plaintiff. The plaintiff testified that a female poli ce officer called him asking his
whereabouts. That female police officer turns out to be Rapuleng. They arrested
the plaintiff for allegedly having committed an offence of rape. Rapuleng the
female police officer told the plaintiff’s neighbors that they are “ arresting this
rapist.” The evidence shows that a police officer who was pivotal in the arrest of
the plaintiff was Rapuleng. It is her who called the plaintiff. It is also her who told
the neighbours that they are arresting the plaintiff. However, Ginya positions
himself as an arresting officer. He states that he instructed Mqomboti, who is now
deceased, to arrest. The first task lying ahe ad of this court is to determine who
the arresting officer was on 2 August 2019. Should it be accepted that Ginya w as
indeed the arresting officer?

[42] As evidence evinces, on 2 August 2019 Ginya was allocated work and dockets to
work on that day like an y other police officer who was present th ereat. Plaintiff’s
docket and work relating thereto was not allocated to him. He was not working on
the docket on the day. Mqomboti, Rapuleng and another police office r were
allocated or assigned among others plaint iff’s docket to work on. It is assumed
that a senior officer was assigning work to junior officers like Ginya and
Mqomboti. They would exercise their discretion on the specific work they were
assigned to perform. In t hose circumstances it is improbable that a junior officer
would instruct another junior officer on how to perform his duties.

[43] Mqomboti, Rapuleng and another police officer went to complainant’s home
where they were advised of the threats the plaintiff was allegedly making to the
complaint’s family. It is on the strength of thos e complaint’s that Mqomboti
consulted Ginya to ask if he is not objectionable to him arresting the plaintiff.
Ginya indicated that he is not objectionable to the plaintiff’s arrest. His views on
the plaintiff’s arres t cannot transform into an instruction by any strength of
imagination.

[44] It is Mqomboti who initiated a call to Ginya as a person who previously dealt with
the matter. In the call initiated by him, Mqomboti raised the topic of plaintiffs’
arrest. It is Mqomboti who initiated a discussion about the plaintiff’s arrest. Were
it not for Mqomboti’s call to Ginya, there would not have been anything said
about plaintiff’s arrest between Mqomboti and Ginya. It therefore cannot be
accepted that Ginya intended to instruct Mqomboti to arrest the plaintiff. In the
evidence before me I can con fidently and reasonably conclude that Mqomboti
called Ginya to indicate his intentions: he was communicating his intentions to
arrest the plaintiff where Ginya showed no diffe rent intent. It is therefore a
misnomer that Ginya instructed Mqomboti to arrest, when Ginya did not see a
need to arrest plaintiff since at least 7 June 2019. We know from the evidence
that there is nothing significantly changed in the docket from what was the
position on 7 June 2019. If Ginya’s testimony is anything to go by , it should be
accepted that the information in the docket did not permit to entertain a
reasonable suspicion that an offence of rape had occurred. That should be
obtained also on 2 August 2019 as nothing new was added into the docket.

[45] The only reason that prompted or triggered an intention to arrest the plaintiff was
the complaint of threats allegely made by the plaintiff to complainant’s family.
According to defendants’ evidence, the plaintiff threatened to terminate the
support he was giving to the complainant’s family if they do not withdraw the
case against him. That is the nature of the threats that raised the ire of the police
officers. A proposition was accepted by the defendants’ counsel during argument
that, had there been no complaint as aforesaid, there would not have been any
arrest effected by the three police officers. I share that view. That can never be a
solid ground upon which to form a reasonable suspicion that an offence of rape
has been committed. That directly offends the substantive component of
plaintiff’s freedom16.

[46] Uncontroverted evidence was adduced by the plaintiff that the three police
officers who arrived at his home to arrest him did not introduce themselves. All
they said is that they are the police officers coming to arrest him on charges of
rape and the plaintiff obliged. It is for that reason the plaintiff did not know their
names. By necessary implications or flowing therefrom plaintiff was ne ver
advised of his rights. There is not even a warning statement signed by the
plaintiff and the officer who was arresting the plaintiff showing that the plaintiff
was advised of his rights. That failure offended the procedural component of
plaintiff’s freedom17.


16S v Coetzee 1997 (3) SA 527 (CC).
17Zealand v Minister of Justice and Constitutional Dev elopment and Another 2008 (2) SARC 1 (CC) Para
33
[47] Section 35 of the Constitution, in relevant parts, provides that:

“1 Everyone who is arrested for allegedly committing an offence has the
right –

(a) to remain silent;

(b) to be informed promptly-

(i) of the right to remain silent; and

(ii) of the consequences of not remaining silent”
………

[48] Section 35 (1) (a) and (b) rights are sacrosanct. Police conduct in this regard
cannot be condoned or countenanced in a civilized society founded on values of
human dignity, equality, human rights and freedoms 18. The police officers cannot
be allowed to barge into someone ’s place and fail to do a simple human and
honourable thing of properly introducing themselves , as it is expected of them
and further fail to advise that person of his rights enshrined in Section 35 (1) ( a)
and (b) of the constitution. Failure to advise plaintiff of these rights is tantamount
to denying the plaintiff the exercise thereof.

[49] In Harris19, Centlivres CJ stated as follows about the rights

“There can to my mind be no doubt that authors of t he constitution
intended that those rights [that is the rights entrenched in the constitution]
should be enforceable by the courts of law. They could never have

18Section 1 (a) of the Constitution.
19Minister of the Interior v Harris 1952 (4) SA 769 (A)
intended to confer a right without a remedy. The remedy is, indeed, part
and parcel of the right ubi jus, ibi remedium.”

[50] The Constitutional Court 20quoted with approval sentiments by Holt CJ 21

“If a plaintiff has a right, he must of necessity have a means to vindicate
and maintain it, and a remedy if he is injured in the exercise or
enforcement of it. And indeed, it is a vein thing to imagine a right without a
remedy; for want of right and want of remedy are reciprocal.”

I am convinced therefore that the procedural component of plaintiff’s arrest
was unjustifiably violated by the members of S APS when they were
arresting him on 02 nd August 2019. Accordingly, that arrest too was
wrongful and unlawful.

Conclusion

[51] In conclusion, I find that defendant reliance on the provisions of Section 40 (1) (b)
of Criminal Proced ure Act 51 of 1977 as am ended for the arrest of 02 nd August
2019 is misplaced. Section 40 (1) (b) aforesaid provides that:

“1 A peace officer may without warrant arrest any person –

(a) ……

(b) whom the reasonably suspects of having committed an offence
referred to in Schedule 1, other than the offence of escaping
from lawful custody.”


20Masemola v Special Pensions Appeal Board and Another 2020 (2) SA (1) CC Para 51
21Ashby v White [1790] EngR 55; [1703] 92 CR 126 at 136
(c) …

52. I have indicated above that the plaintiff was arrested on the basis that he
allegedly made threats to the complainants’ family; not because he was
reasonably suspected of having committed an offen ce of rape with which he was
charged. The defendant’s situation was worse ned by the fact that no arresting
officer was called to testify about the arrest of 02 nd August 2019 . Whilst it is
accepted that Mqomboti is no more, however, he was not alone when th ey were
effecting the arrest on 02nd August 2019. There is no basis conceivable enough
for defendant’s failure to call the two police officer s, especially Rapuleng who
was seemingly pivotal during the plaintiff’s arrest. It can only be inferred from that
conduct that such a failure was deliberate because the defendant feared that the
evidence of the two police officers would expose facts not favourable to him22.

[53] In the result I find the defendant liable for agreed or proven damages arising from
the plaintiff’s arrest on 7 June 2019 and 2 August 2019 and resultant detentions
or deprivation of plaintiff’s liberty. With regard to the arrest on 2 August 2019, the
defendant is found liable for plaintiff detention or deprivation of liberty up to the 5
August 2019. The reason for defendants’ liability for plaintiff’s detention or
deprivation of liberty up to 5 August 2019 is not for to seek and is borne out by
the evidence.

[54] The defendant led uncontroverted evidence that Ginya informed the public
prosecution, Mr Mampangashe on 05th August 2019 that he is not opposed to
plaintiff being released on bail. Mr Mampangashe sought Ginya to depose into an
affidavit stating his position that he is not opposing the grant of bail. Curiously the
matter was postponed fo r bail application w ithout any further ado. Mr
Mampangashe failed to advis e the court that the bail is not opposed. He simply
sought postponement for bail application. There is nothing informing me of the
reason why Ginya was not put on the witnesses stand and say what was sought

22Mister Estates (Pty) Ltd v Killarney Hill (Pty) Ltd 1979 (1) SA 621 (A).
to be said by way of an affidavit. He should have been caused to take the
witness stand and state that he is not opposing the grant of bail in favour of
plaintiff and state his reasons. Ginya clearly expressed his intentions not to
oppose the release of the plaintiff on bail on 5 August 2019. Accordingly, the
defendant cannot be found liable for any damages beyond the 5 August 2019 as
it is clearly the public prosecutors’ fault that the matter was postpone d without
explanation. Unfortunately, the National Director of Public Prosec utions is not
before this court to answer about Public Prosecutions failures alluded to above.

[55] Every arrested person has a right at his or her first appearance after being
arrested, to be charged or to be informed of the r eason for the detention to
continue or to be released and to be released from detention if the interest s of
justice permit subject to reasonable conditions 23. Section 50 (6) (a) of the
Criminal Procedure Act 51 of 1977 as amended offers a similar right to every
arrested person. The Supreme Court of Appeal24 made the following dictum:

“14… In my view presiding officers of courts of first appearance must
ensure that the rights in S35 (1) (e -f) of the Constitution are not
undermined. It is imperative for a presiding officer to enqu ire from the
prosecution why it is necessary to further detain a suspect. In that enquiry
the reasons for further detention will emerge as to whether or not it is in
the interests of justice to further detain or release the suspect. Thus, I say,
mindful of the provisions of S12 (1) of the Constitution which deals with
freedom and security of the person and the right not to be deprived of
freedom arbitrarily or without just cause. Failure to enquire at the first
appearance of the reasons for further detention is clearly a contravention.
If the above Constitutional imperatives and therefore the further detention
of a suspect without just cause would be arbitrary and unlawful. In my

23 Section 35 (1) (e-f) of the Constitution
24De Klerk v Minister of Police 2018 (2) ALL SA 597 SCA; 2018 (2) SACR 28 (SCA) Para 14
view the police cannot be held liable for the further detention, even if the
arrest is found to have been unlawful.”

[56] Not only the prosecution has caused an infraction to plaintiff’s right but als o the
court of first appearance by failing to spear head the enquiry about plaintiff’s
further detention. Plaintiff’s bail application should have been finalized on 5
August 2019 if Ginya was given an opportunity to state in court that he is not
opposing the release of the plaintiff on bail. Had he been given that opportunity
he would obviously h ave stated his reasons not to oppose the release of the
plaintiff on bail. Unfortunately, the National Director of Public Prosecutions and
the Department of Justice and Constitutional Development are not cite d herein,
whose conducts were affront to plaintiff’s rights.

Costs

[57] There is no reason why I should deviate from the general rule. It has not been
argued before me that there are any grounds for deviation . Therefore, costs
should accordingly follow the result.

Order

[58] In the result I make the following order:

58.1. The defendant is hereby found liable for agreed or proven damages
arising from plaintiff’s arrest on 07 th June 2019 and the resultant
deprivation of liberty on that day.

58.2. The defendant is hereby found liable for agreed or pro ven damages
arising from plaintiff’s arrest on 2 August 2019 and for his resultant
detention up to and including 5 August 2019.

57.3. The defendant is liable to pay the costs of the suit.


____________________
Zono AJ
Acting Judge of the High Court


APPEARANCES:

For the applicant : Adv T.H Melane
Instructed by : L.L KETANI ATTORNEYS
Suite No 247 2nd Floor ECDC Building
CNR York Road and Elliot Street
Mthatha
Ref No:LLK/04/CIV/TN-HC
Email: loyisoketani1@gmail.com
Cell:0730760869

For the Respondents : Adv L.L Sambudla
Instructed by : STATE ATTORNEY
Broadcast House
No 94 Sission Street
Fortgale
Mthatha
Ref:982/20-A6S(Mrs Shumane)
Tel: 047 502 9900