SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE

CASE NUMBER: 3469/2018
REPORTABLE: YES/ NO
OF INTEREST TO THE JUDGES: YES/NO
REVISED.
DATE 25 MARCH 202

In the matter between:

ABRAHAM CHRISTIAAN DERCKSEN PLAINTIFF
-and-
THE MINISTER OF POLICE RESPONDENT

CONSOLIDATED WITH:
CASE NUMBER: 3470/2018

In the matter between:

DEON CHARLES BOTHA PLAINTIFF
-and-
MINISTER OF POLICE DEFENDANT

2
JUDGMENT

BRESLER AJ:

Introduction:

[1] Mr. Abraham Christiaan Dercksen (hereinafter ‘Dercksen’) and Mr. Deon Charles
Botha (hereinafter ‘Botha’) are respectively the Plaintiffs under case numbers:
3469/2018 and 3470/2018. The Plaintiffs were arrested simultaneously and the
same charges and the two cases where therefore heard simultaneously .

[2] The Plaintiffs’ cause of action is a delictual claim for damages against the
Defendant arising from their alleged unlawful arrest and detention on the 24th of
August 2017 to the 29th of August 2017. During the pre- trial held on the 23rd of
May 2023, the parties agreed that the trial will continue on both quantum and
merits.

[3] I t is common cause between the parties that, on the 24th of August 2017, the
Plaintiffs were arre sted without a warrant by members of the South African Police
Services (the ‘SAPS’) . Pursuant to the arrest, the Plaintiffs were transported to
Polokwane Police Station and detained from the 24th of August 2017 to the 28th of
August 2017. The Plaintiffs’ first appearance in court was on the 28th of August
3
2017. The criminal charges were later withdrawn against the Plaintiffs. It is
furthermore common cause that, at all material times hereto, the members of the
SAPS were acting within the course and scope of their employment as such.

[4] This Court is consequently called upon to determine if the arrest and detention of the Plaintiffs were unlawful and if the Plaintiffs suffered any loss and subsequent
damages as a result thereof.

The Defendant’s evidence:
[5] The Defendant’s first witness was Mr Dale Thomas (‘Thomas’) . Thomas was one
of the complainants in the criminal case that gave rise to the arrest of the Plaintiffs.

[6] On the 24
th of August 2017, and while they were hunting (without permission) at
Duvenhageskraal Farm (the ‘Farm’ of Dercksen and Botha where the incident
occurred) , he saw a green bakkie coming at them at a high speed and heard shots
being fired at them. (It later transpired that this was in fact a Pajero SUV).
According to Thomas, Dercksen exited the vehicle and instructed someone to stab
him. Botha was holding the firearm .

[7] According to Thomas, 4 to 6 shots were fired at them and although nobody was
hit, they could hear the bullets flying past them.

4
[8] In this Court’s view, Thomas’ testimony did not take the current case any further.
The question was, after all, not what transpired on that day but rather the
perceptions and the reasonable exercise of a discretion by the investigating officer
leading to the arrest of Dercksen and Botha.

[9] The Defendant also called Detective Sergeant Chokoe (‘Chokoe’) , who was the
investigating officer i n the criminal case. He testified that upon entering the
Customer Services Centre on the 24th of August 2017, he noticed a couple of
people reporting a case. A female police officer was assisting them. He approached them to take their statements.

[10] The Complainants informed him that their dogs ran into the Farm looking for
water. This resulted in them following the dogs . They also alleged that they were
chased by a Pajero at an excessive speed. There were four people in the Pajero.
The driver took out a firearm and shot at them . Chokoe testified that one of
Complainants knew Dercksen and Botha. He observed that the Complainants appeared to be confused and out of breath because they were running.

[11] Chokoe, assisted by four witnesses, went to the scene of the incident to determine
if there were spent bullet cartridges in the grass , and to determine where the driver
tried to knock one of Complainants with his vehicle. Whilst Chokoe was there, he
saw a black man walking nearby . The man disposed of an item in the grass.
Upon closer inspection it was a silver knife with a black handle. The man was
informed of the case and was consequently arrested.
5

[12] No bullet cartridges could be found at the alleged scene of the incident.

[13] Chokoe then wanted to see if he could find the firearm that was allegedly utilised
in the incident. He also wanted to arrest Dercksen and Botha. It is apposite to
note that clearly Chokoe had the intent to arrest Dercksen and Botha from the
onset and without further investigation.

[14] After gaining entrance to the property, Chokoe identified himself to Dercksen and
Botha and arrested them . Only after the arrest did Chokoe request Botha to hand
over the firearm that was used.

[15] According to Chokoe, a black firearm was brought from the house and handed
over to Chokoe. Only when he returned to collect the C omplainants was he
informed by them that the firearm was allegedly silver and not black as the one
handed to Chokoe.

[16] When asked during cross examination, he stated that he arrested the suspects
since according to the Complainants’ statements, the suspects were guilty of the
stated offence of attempted murder . He furthermore testified that, after the
suspects were pointed out, all that remained was to arrest them. The reasoning
behind the immediate arrest was , according to him, because they committed a
crime.

6
[17] Chokoe testified that there w ere four charges of attempted murder and, in his
opinion Botha and Dercksen would not have come to the police station voluntarily.
No basis for this contention was laid in his testimony.

[18] Chokoe furthermore conceded that no fingerprints were taken (as Botha and
Dercksen were pointed out by the Complainants), the firearm that was take were
also not fingerprinted (because it was the incorrect firearm), they searched for cartridges at the scene of the incident, but could not find any and they did not search for a firearm at the premises of Dercksen and Botha at the time of the arrest since a firearm was voluntarily handed over.

[19] Chokoe also testified that they checked the firearm register after Dercksen and
Botha was arrested but he did not place a copy of the search on the docket. He
alleged that Botha owned a silver firearm, but he could not recall the make.

[20] The Plaintiffs were taken to the Polokwane Police Station on Thursday, the 2 4
th of
August 2017. They were charged the next day . He received pressure from the
prosecutor to have the Plaintiffs appear in Court. Chokoe confirmed that the
Plaintiffs appeared in Court on the Monday and that they were released on bail on
the Tuesday .

[21] Noticeably, no evidence was led as to the circumstances in which the Plaintiffs were detained.

[22] The Defendant then closed its case without calling further witnesses.
7

The Plaintiffs’ evidence:

[23] Dercksen testified that he is a 58- year-old unmarried male mechanic who stays
with his partner, Jacky van Jaarsveld, at 1[…] S[…] R[…] , Ivydale, Polokwane. He
resides at this address with inter alia Jacky, his fiancé, and Botha.

[24] On the 24th of August 2017 at approximately 10:30, he received a call from their
herdsman, Samuel, informing him that there are people illegally hunting with dogs
on the Farm where their cattle were grazing.

[25] He drove with Botha to the Farm in a Paj ero. Upon their arrival, they picked up
Samuel. They drove to the veld where the cattle w ere held. They arrived at an
old, ploughed land and saw unknown individuals. The individuals started running
when they approached. The drove towards them (at approximately 30 – 40 km /h
because of the nature of the terrain).

[26] Dercksen exited the Pajero SUV and fired shots with an empty gas BB gun to scare them and to try and force them to stop. The Complainants stopped when they heard the noise. Botha pursued the remaining Complainants with the Pajero
SUV. He drove in a semi -circle around them to force them to return to where
Dercksen was waiting with the remaining Complainants. He denied knocking or hitting any of the Complainants with the vehicle.

8
[27] Dercksen testified that the Complainants apol ogised for trespassing. A dispute
ensued between Samuel and one of the Complainants , and Samuel did cut him
with a knife. Further conversation ensued between Dercksen, Botha and the
Complainants.

[28] After apologising and attending to the wound of the one Complainant, Dercksen
and Botha took five of the Complainants to the railway line next to Westenburg to
enable them to return home. The other two Complainants walked home since
they had the dogs with them.

[29] Dercksen and Botha returned to the Farm at approximately 15:00. Whilst they were driving there, they noticed three vehicles leaving the farm . Upon their arrival,
they were informed by one of Samuel’s friends that he was arrested. Dercksen
and Botha left the Farm and drove home.

[30] Upon arriving at home, they saw two sedan vehicles and recognised one of the
people as one of the Complainants. None of the vehicles had SAPS signage on it.
He was approached by two people who did not identify themselves. They
demanded the firearm, claiming that he was shooting at the Claimants . He
requested Jacky to bring the firearm in the house (being the BB gun).

[31] The members of the SAPS were extremely rude to them and raised their voices
whilst talking. Dercksen and Botha were both placed in t he back of the police
vehicle without formally indicating that they are being arrested or without the
9
reason for their arrest and detention being communicated to them. This was done
in the presence of members of their staff , a client and members of their family.
Dercksen testified that the incident caused embarrassment and distress to him
and that he was afraid and humiliated.

[32] Dercksen testified that they were detained for 5 nights and 6 days . He testified that
he suffered because of the indignity of appearing in court .

[33] As to his personal circumstances, Dercksen testified that both Botha and himself
have fixed addresses where the SAPS could easily get a hold of them. They are
also known in the community. He also testified that he was threatened by a
member of the SAPS, who told him that they are going to get Julius Malema, and
the EFF involved and that they should get a lawyer. According to Dercksen, it was
the first time that the SAPS mentioned the involvement of a lawyer on their behalf. They were also not informed of the charges being investigated against them at this
stage.

[34] He testified that Botha tried to call Attorney Jan Stemmet to assist. Mr Stemmet informed them that he does not accept cases of this nature but that he will try and
get somebody else to assist them.

[35] When arriving at the police station, their phones were taken, and they were not
able to call anybody else. The were not allowed to call any legal representative, they were not informed of their right to legal representation or their right to apply
10
for bail. They also did not have contact with any family members whilst being
detained in the cells. Their constitutional rights were not read to them, and they
did not sign any entry into a pocketbook. Their version of the day’s events was
not taken. They were also not informed of their right to remain silent. A SAPS 14A Not ice (Notice of Constitutional Rights) were handed to them at a later stage
without explanation, and they were informed that they are obliged to sign it.

[36] As to the conditions in the cells, Dercksen testified that the cells were terrible. There were numerous inmates, there were no beds, and they were forced to sleep
on mat s with only a single blanket . The toilet was blocked, and sewerage was
running everywhere. There was no door for privacy.

[37] They received dry bread and bitter tea. Some pap and a watery substance were
served in the evenings.

[38] Although arrested on Thursday, the 24
th of August 2017, they were not taken to
court on Friday, the 25th of August 2017 as the case docket was allegedly not
taken to court. They appeared in court on the Monday, the 28th of August 2017
and the matter was remanded to the 29th of August 2017 for Chokoe to complete
his investigation. Dercksen and Botha were released on bail of R500.00 each on
the 29th of August 2017.

[39] Dercksen testified that, because of this incident, he has lost all trust in the SAPS. He also lost income and business because of the incident.
11

[40] Botha was then called to testify. He confirmed that he is a male adult born on the
22nd of October 1976. He resides at 1[ …] S[…] R[…], Ivydale, Polokwane. He is
a mechanic and conducts business from the same address.

[41] His testimony largely corresponds with the testimony of Dercksen and there are no
relevant or perceivable contradictions as to what transpired herein after.

[42] As to his personal observations of the alleged arrest incident, he testified that one of the members of the SAPS threatened them by indicat ing that they were going to
call Julius Malema and the EFF. Botha testified that this made him extremely
afraid.

[43] Upon arriving at the police station, he called Jan Stemmet. He had to cut his call short because he was ordered by a member of the SAPS to switch off his phone. Botha confirmed that , at that stage, they were still not informed of the reason for
the arrest or the charges against them.

[44] Botha testified that, when taken to the cells, other inmates harassed them . They
were forced to take off their clothes and shower in front of other people. He felt degraded and humiliated and stated that nobody should be made to feel like that. After the shower, their clothes were thrown on the wet floor and they had to wear
wet clothes.

12
[45] Botha testified that they did not receive any food or water on the 24th of August
2017.

[46] On the 25th of August 2017, their names were called, and they were told to wait at
a certain point at the SAPS building to be taken to court. They were, however, not
taken to court that day and were returned to the cells later during the afternoon.

[47] In the cells, they were provided with a mat and one blanket. The blankets were
very smelly and full of bedbugs. His thighs were extremely itchy.

[48] Botha testified that he was never informed that they could apply for bail , and he
did not sign a warning statement on the 26th of August 2017. Only his fingerprints
were taken whereafter they were taken back to their cells . On the 27th of August
2017, they remained in their cells the entire day .

[49] They received bread and tea for break, no lunch and a soya meal in the evening.

[50] Botha testified that their names were called again on the 28th of August 2017.
They appeared in court briefly. According to his understanding the matter was
remanded to the 29th of August 2017 as the dockets were not at court and the
paperwork was not in order. A postponement was accordingly applied for by the
Defendant.

[51] They did not receive any food during the day.
13

[52] On the 29th of August 2017, they appear ed in court and received bail of R500,00
each. After the court appearance, they were taken to another cell in the Court
building. By 15:00 they were still waiting and assumed the SAPS had forgotten about them. Dercksen called out to a constable, who walked past and who they
were familiar with, to assist them . They were then collected after a while and
taken back to the Polokwane holding cells in a police van. Botha confirmed that they were eventually released at approximately 16:00.

[53] Botha testified that the arrest and detention made him feel afraid and stressed.
He does not feel like the SAPS’ conduct was correct. He also noted that the SAPS never apologised to him . He testified that they lost clients because of the
incident and his staff had to apologise to several customers on their behalf . He
also stated that he is wary to report any matter to the SAPS in future because he
has lost trust in them .

[54] The Plaintiffs then called Ms Jacky van Jaarsveld, the fiancé of Dercksen to testify. She confirmed her relationship with Dercksen. She also confirmed that she is a homemaker and was present when the incident transpired on the 24
th of
August 2017.

[55] She went to court on the 25th of August 2017 and was told the matter is not on the
roll.

14
[56] She went back to court on the 28th of August 2017 and was present when the
matter was postponed to the 29th of August 2017. In her understanding it was
because Chokoe did not do his work properly. She also gave permission to
Chokoe to search their home without a warrant as she was warned that a refusal
would result in them having to apply for a warrant which would result in another
postponement.

[57] The members of the SAPS arrived with their dogs and search for evidence but could not find anything.

[58] Hereafter the Plaintiffs called Mr Deon Dercksen Jnr, the son of Dercksen. He
testified that he is a male person residing with the two Plaintiffs at 1[…] S[…]
R[…] , Ivydale, Polokwane. He is also a mechanic and was present when the
SAPS arrived on the 24
th of August 2017.

[59] He confirmed that members of the SAPS took the Plaintiffs away and that he did
not realise they were arrested.

Legal Framework applied to the facts:
The lawfulness of the arrest

15
[60] It is trite law that the cause of action in an unlawful arrest and detention is the actio
iniuriarum with certain additional features thereto.1

[61] Section 40(1)(b) of the Criminal Procedure Act, Act 51 of 1977 (the ‘CPA’)
provides that a peace officer may without a warrant arrest any person whom he
reasonably suspects of having committed an offence referred to in S chedule 1,
other than the offence of escaping from lawful custody. The arrest would be lawful
if the arresting officer successfully establishes the jurisdictional factors, and he/she may invoke the power conferred by s 40(1) (b) to arrest the suspect unless the plaintiff demonstrates that the discretion to arrest him/her was exercised unlawfully. The jurisdictional requirements for a lawful arrest under s 40(1) (b)
defence are that:

61.1 the arrestor must be a peace officer.

61.2 the arrestor must entertain a suspicion.
61.3 the suspicion must be that the suspect committed a schedule 1 offence;
and
61.4 the suspicion must rest on reasonable grounds.


1 See Thompsom v Minister of Police 1971 (1) SA 371 (E) at 373 and Minister of Justice v Hofmeyer
1993 (3) SA 131 (A)
16
[62] If the arresting officer succeeds in establishing these jurisdictional factors, the
arrest would be lawful, unless the P laintiff establishes that the discretion to arrest
him/her was exercised in an unlawful manner.2 If one or more of the jurisdictional
factors is / are not met, the arrest would be unlawful. The relevant enquiry is
whether the suspicion was reasonable, thereby successfully establishing the
jurisdictional factors.3

[63] In Minister of Safety and Security v Sekhoto and Another4, Harms DP quoted
with approval the dictum in Duncan v Minister of Law and Order5 at 818H -J and
819A -B where Van Heerden JA held:

‘If the jurisdictional requirements are satisfied, the peace officer may invoke
the power conferred by the subsection, i.e., he may arrest the suspect. In
other words, he then has a discretion as to whether or not to exercise that
power (cf Holgate -Mahomed v Duke [1984] 1 All ER 1054 (HL) at 1057). No
doubt his discretion must be properly exercised. But the grounds on which
the exercise of such a discretion can be questioned are narrowly
circumscribed. Whether every improper application of a discretion conferred
by the subsection will render an arrest unlawful, need not be considered
because it does not arise in this case. All that need be said for the purposes
of the point under consideration is that an exercise of the discretion in

2 See Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA)
3 See Nkosinathi Justice Banda v Minister of Police N.O. [2020] ZAECGHC 55 para 40
4 2011 (1) SACR 315 (SCA)
5 1986 (2) SA 805 (A)
17
question will be clearly unlawful if the arrestor knowingly invokes the power
to arrest for a purpose not contemplated by the Legislator. But in such a
case, as is generally the rule where the exercise of a discretion is
questioned, the onus to establish the improper object of the arrestor will rest
on the arrestee (cf Divisional Commissioner of SA Police, Witwatersrand
Area, and Others v SA Associated Newspapers Ltd and Another 1966 (2) SA
503 (A) at 512; Groenewald v Minister van Justisie 1973 (3) SA 877 (A) at
884).”

(Own underlining)

Was the suspicion based on reasonable grounds?

[64] In Mabona and Another v Minister of Law and Order and Others6, Jones J
held:

‘The test of whether a suspicion is reasonably entertained within the
meaning of s 40(1) (b) is objective (S v Nel and Another 1980 (4) SA 28 E at
33E-H). Would a reasonable man in the second defendant’s position and
possessed of the same information have considered that there were good
and sufficient grounds for suspecting that the plaintiff was guilty of
conspiracy to commit robbery or possession of stolen property knowing it to
have been stolen? It seems to me that in evaluating his information a

6 1988 (2) SA 654 (SE)
18
reasonable man would bear in mind that the section authorises drastic police
action. It authorises an arrest on the strength of a suspicion and without the
need to swear out a warrant, i.e. something which otherwise would be an
invasion of private rights and personal liberty. 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 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 quality and cogency to
engender in him a conviction that the suspect is in fact guilty. The section
requires suspicion but not certainty. However, the suspicion must be based
upon solid grounds. Otherwise, it will be flighty or arbitrary, and not a
reasonable suspicion.”

(Own underlining)

[65] The Supreme Court of Appeal , in Duncan v Minister of Law and Order7, set out
four jurisdictional requirements which flow from s ection 40(1) of the CPA, which
authorises arrests without a warrant. They are: that the person arresting must be a
peace officer, who entertained a suspicion, that the suspicion was that the arrestee had committed a schedule 1 offence and that the suspicion rested on reasonable grounds.


7 Duncan v Minister of Law and Order [1986] 2 All SA 241 (A); 1986 (2) SA 805 (A) at 818G -H.
19
[66] The question that arises is whether Chokoe, in executing the arrest, exercised his
discretion properly .

[67] In Minister of Safety and Security v Sekhoto8, the principles were clearly
established . As stated in Duncan supra, a discretion arises as to whether or not
to arrest.9 There is no obligation to arrest. The general requirement is that any
such discretion must be exercised in good faith, rationally and not arbitrarily .10 The
court in Sekhoto supra further stated thus:

‘This would mean that peace officers are entitled to exercise their discretion
as they see fit, provided that they stay within the bounds of rationality. The
standard is not breached because an officer exercises the discretion in a
manner other than that deemed optimal by the court. A number of choices
may be open to him, all of which may fall within the range of rationality. The
standard is not perfection, or even the optimum, judged from the vantage of
hindsight and so long as the discretion is exercised within this range, the
standard is not breached.’ (Footnotes omitted)

[68] T he Constitutional Court confirmed these principles in Groves NO v Minister of
Police11 as thus:


8 Minister of Safety and Security v Sekhoto 2011 (5) SA 367 (SCA); 2011 (1) SACR 315 (SCA ).
9 Minister of Safety and Security v Sekhoto supra at para 28
10 Minister of Safety and Security v Sekhoto supra at para 38
11 Groves NO v Minister of Police 2024 (4) BCLR 503 (CC) paras 52 and 60
20
‘The officer making a warrantless arrest has to comply with the jurisdictional
prerequisites set out in section 40(1) of the CPA. In other words, one or
more of the grounds listed in paragraphs (a) to (q) of that subsection must be
satisfied. If those prerequisites are satisfied, discretion whether or not to
arrest arises. The officer has to collate facts and exercise his discretion on
those facts. The officer must be able to justify the exercising of his discretion
on those facts. The facts may include an investigation of the exculpatory
explanation provided by the accused person.
...
Applying the principle of rationality, there may be circumstances where the
arresting officer will have to make a value judgment. Police officers exercise
public powers in the execution of their duties and “[r]ationality in this sense is
a minimum threshold requirement applicable to the exercise of all public
power by members of the executive and other functionaries”. An arresting
officer only has the power to make a value judgement where the prevailing
exigencies at the time of arrest may require him to exercise same; a
discretion as to how the arrest should be affected 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 those
circumstances, the arresting officer may revert to the investigating or
applying officer before finalising the arrest.’

21
[69] The evidence in the trial was quite clear. Chokoe intended from the onset to
arrest the Plaintiffs purely premised on the testimony of the Complainants ,
notwithstanding the fact that there was no other physical evidence of the alleged
crime and taking into consideration that it was evident that the Complainants were
in fact trespassing on the farm. As they were in fact trespassing, would would
expect that Chokoe would have at the very least, approach their testimony with
some level of caution. Chokoe repeatedly stated that his only consideration was
that the Plaintiffs were ‘guilty of an offence’ and he therefore had to arrest them
immediately . No testimony was led as to any rational process of deliberation or
consider ation of alternative means, other than an arrest, of securing the Plaintiff s’
presence in court.

[70] It is also evident from the testimony of both Dercksen and Botha that their version
was not obtained. In fact, only after arrest did Chokoe enquire about the
whereabouts of the firearm.

[71] During evidence in chief Chokoe did not sufficiently substantiate his reasoning as
to why arrest was the appropriate mechanism to secure the attendance of the
Plaintiffs before court. There was no justification for electing immediate arrest and
detention.

[72] On this basis, this Court finds that the arrest of the Plaintiffs was in fact, unlawful.

[73] Having regard to the insistent intention of Chokoe to arrest Botha and Dercksen,
notwithstanding the questionable version of the Complainants, this Court has no
22
reason to question the testimony of the Botha and Dercksen that the arrest was
also not procedurally correct. The specific evidence to the effect that they were not informed of the charges against them and their rights at the time of the arrest,
and thereafter at the Police station, is therefore found to be credible and acceptable evidence of what transpired.

Detention

[74] As enunciated herein before, the purpose of the arrest is to bring the arrested
person before a court to face justice. Section 50 of the CPA 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’.

[75] Section 50(1) (c) of the CPA 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. 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 .

[76] Detention is, in and by itself, unlawful. The onus rests on the detaining officer to
justify it. The Constitutional Court remarked on occasion that the question whether
a person’s detention was consistent with the principle of legality and his right to
freedom and security of the person in s ection 12 of the Constitution, 1996 is a
23
constitutional matter. S ection 12(1) of the Constitution guarantees that everyone
has the right to freedom and security of the person, which includes the right not to
be deprived of freedom arbitrarily or without just cause.

[77] In Mvu v Minister of Safety and Security and Another12 Willis J cited with
approval the case of Hofmeyr v Minister of Justice and Another13 and
remarked:

“[10] In Hofmeyr v Minister of Justice and Another King J, as he then was,
held that even where an arrest is lawful, a police officer must apply his mind
to the arrestee's detention and the circumstances relating thereto, and that
the failure by a police officer properly to do so is unlawful . The minister's
appeal was unanimously dismissed by what was then known as the
Appellate Division of the Supreme Court. It seems to me that, if a police
officer must apply his or her mind to the circumstances relating to a person's
detention, this includes applying his or her mind to the question of whether
detention is necessary at all. This, it seems to me, and in my very respectful
opinion, enables one to get a better grip on an issue which has been
debated in the law reports in recent cases such as Minister of Correctional
Services v Tobani; Ralekwa v Minister of Safety and Security; Louw v
Minister of Safety and Security and Others; Charles v Minister of Safety and

12 2009 (2) SACR 291 (GSJ); 2009 (6) SA 82 (GSJ)
13 1992 (3) SA 108 (C)
24
Security; Olivier v Minister of Safety and Security; and Van Rensburg v City
of Johannesburg. ’

[78] Having regard to the authorities stated herein before, the detention of the Plaintiffs was clearly unlawful following upon their unlawful arrest.

Further detention

[79] It is clear from the evidence that the Plaintiffs were taken to court on Monday, the 28
th of August 2017. The matter was then remanded to the 29th of August 2017
for ‘further investigation’ on which day the Plaintiffs were released on bail ,
presumably after a further postponement at the behest of the State was refused. It is therefore evident that the further detention of the Plaintiffs, from the 28
th to the
29th of August 2017, were done at the behest of the Defendant.

[80] Theron J in Bryan James De Klerk v the Minister of Police14 remarked:

‘[81] Constable Ndala subjectively foresaw the precise consequence of her
unlawful arrest of the applicant. She knew that the applicant’s further
detention after his court appearance would ensue. She reconciled herself to
that consequence. What happened in the reception court was not, to
Constable Ndala’s knowledge, an unexpected, unconnected and extraneous causative factor – it was the consequence foreseen by her, and one which

14 2020 (1) SACR 1 (CC); 2021 (4) SA 585 (CC)
25
she reconciled herself to. In determining causation, we are entitled to take
into account the circumstances known to Constable Ndala. These
circumstances imply that it would be reasonable, fair, and just to hold the
respondent liable for the harm suffered by the applicant that was factually caused by his wrongful arrest. For these reasons, and in the circumstances
of this matter, the court appearance and the remand order issued by the Magistrate do not amount to a fresh causative event breaking the causal chain.”

[81] The learned Judge concluded:

‘[86] The crucial fact in this matter is that Constable Ndala subjectively
foresaw the harm arising from the mechanical remand of the applicant after
his first court appearance. She knew that the applicant’s further detention
after his court appearance would be the consequence of her unlawful arrest
of him. She reconciled herself with this knowledge in proceeding to arrest
him. In addition, she knew that her mere note inside the docket
recommending bail would amount to nothing at this first appearance. That
the judicial process should have had a different tenor and outcome seems to
me to be beside the point. The point is that Constable Ndala knew it would
not.’

[82] At paragraph [88] the learned Judge continued:

26
‘[88] On the facts of this case, the Magistrate concerned should not be
exclusively liable for the subsequent detention, given the original delict by
the arresting officer and her subjective foresight of the subsequent detention
and the harm associated therewith.”

[83] The liability of the SAPS for the detention post -court appearance of the arrestee
should be determined on an application of the principles of legal causation, having
regard to the applicable tests and policy considerations. This may include a
consideration of whether the post -appearance detention was lawful. These public
policy considerations will serve as a measure of control to ensure that liability is
not extended too far. The conduct of the SAPS after an unlawful arrest, especially
if the SAPS acted unlawfully after the unlawful arrest of the plaintiff, is to be
evaluated and considered in determining legal causation. Moreover, each case
must be determined on its own facts. That is because there is no general rule that
can be applied dogmatically to determine liability .15

[84] The determination of legal causation is based on the consideration of a range of
factors which inter alia , include direct consequences, reasonable foreseeability,
and the presence of a novus actus interveniens . 16

[85] Chokoe subjectively foresaw the harm when the case was remanded after the
Plaintiffs first court appearance. He reconciled himself with that knowledge. His

15 De Klerk supra at para 63
16 De Klerk supra at para 65
27
explanation for the failure to have the Plaintiffs attend court on the 25th of August
2017 and again on the 28th of August 2017, does not pass muster.

[86] In this case, to impose liability on the D efendant for the entire period of detention
in the circumstances of this matter, would not exceed the bounds of reasonableness, fairness, and justice. In the circumstances, I conclude that this
matter meets the criteria set out by the Constitutional Court in De Klerk supra, to
hold the D efendant liable for the period after the Plaintiffs’ first appearance in court
and until released on the 29
th of August 2017.

[87] Section 39(3) of the CPA 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.

[88] The subsection does not allow for perpetual detention until the court has made a
ruling . To read such an interpretation into the section would infringe upon the
detainee’s fundamental right to liberty. In addition, it would directly offend against
the provisions of s ection 50(1) of the CPA that require an arrested person to be
brought before a lower court without delay and no later than 48 hours.

[89] This accords with the evidence that pressure was placed on Chokoe to bring the
Plaintiffs before court as soon as possible. The Court can only assume it is
28
because the Court realised that Chokoe delayed unreasonably in ensuring that the
Plaintiffs’ constitutional rights are adhered to.

[90] On this basis, it follows that the continued detention of the Plaintiffs after their first
court appearance, was also unlawful.

Quantum

[91] In assessing the quantum of damages, Bosielo AJA, as he then was, in Minister
of Safety and Security v Tyulu17 held:

‘[26] In the assessment of damages for unlawful arrest and detention, it is
important to bear in mind that the primary purpose is not to enrich the
aggrieved party but to offer him or her some much- needed solatium for his or
her injured feelings. It is therefore crucial that serious attempts be made to
ensure that the damages awarded are commensurate with the injury
inflicted. However, our courts should be astute to ensure that the awards
they make for such infractions reflect the importance of the right to personal
liberty and the seriousness with which any arbitrary deprivation of personal
liberty is viewed in our law. I readily concede that it is impossible to
determine an award of damages for this kind of injuria with any kind of
mathematical accuracy. Although it is always helpful to have regard to
awards made in previous cases to serve as a guide, such an approach if

17 Minister of Safety and Security v Tyulu 2009 (5) SA (SCA) at paragraph 26
29
slavishly followed can prove to be treacherous. The correct approach is to
have regard to all the facts of the particular case and to determine the
quantum of damages on such facts (Minister of Safety and Security v
Seymour 2006 (6) SA 320 (SCA) at 325 para 17; Rudolph and Others v
Minister of Safety and Security and Another 2009 (5) SA 94 (SCA) ([2009]
ZASCA 39) paras 26 - 29)’.

[92] In Protea Assurance Co Ltd v Lamb18 the then appellate division held as
follows:

‘It should be emphasised, however, that this process of comparison does not
take the form of a meticulous examination of awards made in other cases in
order to fix the amount of compensation; nor should the process be allowed
so to dominate the enquiry as to become a fetter upon the Court's general
discretion in such matters. Comparable cases, when available, should rather
be used to afford some guidance, in a general way, towards assisting the
Court in arriving at an award which is not substantially out of general accord
with previous awards in broadly similar cases, regard being had to all the
factors which are considered to be relevant in the assessment of general
damages. At the same time it may be permissible, in an appropriate case, to
test any assessment arrived at upon this basis by reference to the general
pattern of previous awards in cases where the injuries and

18 1971 (1) SA 530 (A) at page 535G – 536B
30
their sequelae may have been either more serious or less than those in the
case under consideration. ’

[93] In the matter of Pitt v Economic Insurance Co Ltd19 the court held as follows:

‘…the Court has to do the best it can with the material available, even if, in
the result, its award might be described as an informed guess. I have only to
add that the Court must take care to see that its award is fair to both sides -
it must give just compensation to the plaintiff, but must not pour our largesse
from the horn of plenty at the defendant's expense. ’

[94] In Motladile v Minister of Police20 at paragraph 17 the Supreme Court of Appeal
said the following:

‘The assessment of the amount of damages to award a plaintiff who was
unlawfully arrested and detained, is not a mechanical exercise that has
regard only to the number of days that a plaintiff had spent in detention.
Significantly, the duration of the detention is not the only factor that a court
must consider in determining what would be fair and reasonable
compensation to award. Other factors that a court must take into account
would include (a) the circumstances under which the arrest and detention
occurred; (b) the presence or absence of improper motive or malice on the

19 1957 (3) SA 284 (N) at page 287E
20 (414/2022) [2023] ZASCA 94 (12 June 2023)
31
part of the defendant; (c) the conduct of the defendant; (d) the nature of the
deprivation; (e) the status and standing of the plaintiff; (f) the presence or
absence of an apology or satisfactory explanation of the events by the
defendant; (g) awards in comparable cases; (h) publicity given to the arrest;
(i) the simultaneous invasion of other personality and constitutional rights;
and (j) the contributory action or inaction of the plaintiff. ’

[95] In Thandani v Minister of Law and Order21, Van Rensburg J said:

“In considering quantum sight must not be lost of the fact that the liberty of
the individual is one of the fundamental rights of 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. Unlawful arrest and
detention constitutes a serious inroad into the freedom and the rights of an
individual. ’

[96] In Minister of Safety and Security v Seymore22 at paragraph 17 Nugent JA
wrote:

“The assessment of awards of general damages with reference to awards
made in previous cases is fraught with difficulty. The facts of a particular
case need to be looked at as a whole and few cases are directly

21 1991 (1) SA 702 (E) at page 707A – B
22 2006 (6) SA 320 (SCA)
32
comparable. They are a useful guide to what other courts have considered to
be appropriate but they have no higher value than that. ”

[97] As far as quantum is concerned, I have considered the relevant facts as it
appeared from the evidence. In arriving at what I consider to be an appropriate
award, I have considered the following factors in arriving at a just and
fair quantum for the unlawful arrest and detention of the Plaintiff s:

97.1 The Plaintiff s cooperated with the members of the SAPS during their
alleged arrest on the 24th of August 2017;

97.2 The members of the South African Police Services did not explain the reason for the arrest of the Plaintiffs and their detention at the time when
they were arr ested. They were threatened on their way to the Police
station;

97.3 The Plaintiff s were not taken to court on the first opportunity being the 25
th
of August 2017, but only after the weekend and on the Monday on the 28th
of August 2017. The delay in bringing the Plaintiffs to court was because
of the conduct of the Defendant’s representatives ;
97.4 The Plaintiff s were not given a reasonable opportunity to present their
version to the Defendant prior to their arrest and detention.
97.5 The conditions of the cells from the description by the First and Second
Plaintiff were inhumane and unhygienic. They were harassed and
33
humiliated. Their personal circumstances (and that of the other inmates)
were deplorable. They slept on dirty mats with a single dirty blanket full of
bed bugs.

97.6 T he arrest and detention have affected the Plaintiff s personally and
influenced their relationships with members of the community and their
family members;
97.7 The age of the respective Plaintiff s, their status and standing in the
community at the time of their arrest were considered;
97.8 The arrest and detention were found to be unlawful. The Constitutional
rights of the Plaintiff s were infringed unlawfully and to the detriment of the
Plaintiffs.

[98] This Court has a discretion as to the amount to be awarded as damages for the
unlawful arrest and detention of the P laintiff. As stated before, the amount of
damages must be fair and just, taking into consideration all the relevant facts and
factors that plays a role in the determination of the amount of damages to be
awarded. This Court is not necessarily bound by awards in previous cases as
each case needs to be considered on its own merits.

[99] Having regard to the authorities stated herein before and the facts presented during evidence, this Court finds that it would be just and reasonable to award an amount of R250,000.00 (two hundred and fifty thousand rand) to each Plaintiff in respect of their unlawful arrest and detention.
34

Costs:

[100] The general rule is the successful party is entitled to his or her costs. I have not
found any reason to deviate from the rule. The issue that needs to be determined,
however, is the scale in terms of Rule 69.
[101] The matter before the Court was not complex but it involved a matter of importance to the First and Second Plaintiff. The Court has noted the importance
that our courts accord to the deprivation of a person’s liberty when determining the scale on which to award costs. In De Klerk v Minister of Police supra at
paragraph 18 the Supreme Court of Appeal said the following regarding costs :


‘Although the quantum awarded R30 000-00 is far below the jurisdiction of
the high court, the appellant was justified in approaching the high court
because the matter concerned the unlawful deprivation of liberty. ’

[102] I accordingly find costs should be awarded on a party and party scale inclusive of
costs to counsel on Scale B.

Order:
[103] In the result the following order is made:

35
103.1 The Defendant is ordered to pay the First Plaintiff (Dercksen) an
amount of R250,000,00 (two hundred and fifty thousand rand) in
respect of his unlawful arrest and detention.
103.2 The Defendant is ordered to pay the Second Plaintiff (Botha) an amount equal to R 250,000.00 (two hundred and fifty thousand rand)
in respect of unlawful arrest and detention.
103.3 The Defendant is ordered to pay interest on the aforesaid amount to be calculated at the prescribed rate of interest f rom a tempora mora e
to date of payment in full .
103.4 The Defendant is ordered to pay the costs of suit of the Dercksen
and Botha on a scale as between party and party, including costs to
Counsel on Scale B.

M BRESLER AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE

APPEARANCES:

FOR THE PLAINTIFF : Adv. IS Herbst

INSTRUCTED BY : Kirk Twine Attorneys
Polokwane
36
ktwine@ktpsa.co.za


FOR THE DEFENDANT : Adv. S Mbali
INSTRUCTED BY : Office of the State Attorney
Polokwane

ChaLedwaba@justice.gov.za


DATE OF HEARING : 25 October 2024
DATE OF JUDGMENT : 25 March 2025