2
[2] The arrest of the plaintiff was in terms of Section 40(1)(b) of the Criminal
Procedure Act1 (the CPA). The cause of action for a wrongful arrest and
detention lies in the fact that a person’s liberty was restrained without lawful
justification.
[3] The evidence given must be assessed in light of the jurisdictional factors stated
in section 40(1)(b) of the CPA. As the plaintiff was arrested for being in
possession of stolen/hijacked goods, section 37 of the General Law
Amendment Act2 is also applicable. At some stage the charge was changed to
section 36 of the General Law Amendment Act , but that is not the offence the
plaintiff was arrested and charged with on 31 January 2020.
Jurisdictional Facts for a Lawful Arrest in Terms of Section 40(1)(b) of the CPA
[4] It is important not to lose sight of the requirements for a lawful arrest as the
evidence of the plaintiff on being an informer can easily cloud the true issues in
this matter.
[5] Section 40(1)(b)3 authorises a peace officer to arrest a person without a
warrant.
[6] The requirements for a lawful arrest are:
I. A peace officer must execute the arrest;
II. The officer must entertain a suspicion that
III. the suspect committed an offence as tabled in Schedule 1; and
IV. that the suspicion is on reasonable grounds.4

1 51 of 1977.
2 62 of 1955.
3 40 Arrest by peace officer without warrant
(1) A peace officer may without warrant arrest any person -
(a) who commits or attempts to commit any offence in his presence;
(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than
the offence of escaping from lawful custody ; .
4 Duncan v Minister of Law and Order 1986(2) SA 805 at 818 G – H.
3
[7] It is trite that an arrest and/or detention without a warrant is prima facie wrongful
and once it is established that a person was arrested and/or detained, the police
carry the onus to prove the lawfulness of the arrest.
[8] There is an allegation in the particulars of claim that members of the Flying
Squad failed to exercise a discretion in respect of both the arrest and detention.
[9] However, t he exercise of the discretion of the two members of the Flying was
not properly pleaded and ventilated in the hearing.
[10] Specifically, s ave for the allegation in para 30.3 of the particulars claim, nothing
further is pleaded. The allegation made is that the Flying Squad members failed
to exercise a discretion. It is not clear what was expected of the members and
in what manner it should ha ve been exercised.
[11] Ultimately, t he plaintiff carries the onus of proving , in the circumstances of the
case , there was a discretion to be exercised by the two members of the Flying
Squad.
Section 37(1) of the General Law Amendment Act, Act 62 of 1955
[12] Section 37(1)5 indicates that a person found in possession of stolen goods ,
where there is an absence of reasonable cause for believing the goods were
properly acquired , shall be guilty of an offence.
Pleadings
[13] The latest amended particulars of claim indicate that , at all material times, the
plaintiff was an unregistered police informer and his handler was Col Phago
from Vosloorus Police Station.

5 37 Absence of reasonable cause for believing goods properly acquired
(1) (a) Any person who in any manner, otherwise than at a public sale, acquires or receives into his or her
possession from any other person stolen goods, other than stock or produce as defined in section one of
the Stock Theft Act, 1959, without having re asonable cause for believing at the time of such acquisition or
receipt that such goods are the property of the person from whom he or she receives them or that such
person has been duly authorized by the owner thereof to deal with or to dispose of them, s hall be guilty of
an offence and liable on conviction to the penalties which may be imposed on a conviction of receiving
stolen property knowing it to have been stolen except in so far as the imposition of any such penalty may
be compulsory.
4
[14] In the amended particulars of claim , the plaintiff pleaded that his arrest and
detention were wrongful and unlawful as the Flying Squad members breached
their duty towards him. These alleged breaches are listed under the heading
of submissions.
[15] Where it is alleged that the police ha ve a legal duty to act positively, such a duty
must be alleged and properly pleaded. I would have expected the plaintiff’s
heads of argument to deal with such a breach of duty , if he intended to plead
such a case. I will thus accept that the cause of action is based on the actio
iniuriarum where the plaintiff alleged that he was unlawfully arrested and
detained and that the reference to a breach of duty was not properly pleaded.
The list of alleged breaches by the membe rs of the Flying Squad and other
police officers are:
(a) They did not take heed that plaintiff was working for Col Phago and further
that he was undercover, and they failed to confirm the aforementioned with
Col Phago.
(b) Plaintiff was arrested before they formulated a reasonable suspicion and
failed to exercise their discretion regarding the plaintiff’s arrest and
detention.
(c) The members failed to exercise a discretion in respect of his arrest a nd
detention.
(d) Col Khoza failed to intervene in that he did not inform Col Phago of plaintiff’s
arrest.
(e) Col Phago was negligent in that he failed to intervene on plaintiff’s behalf.
(f) Alternatively, the detention of plaintiff could have been avoided had the
police officers involved heeded plaintiff’s disclosure that he was an informer
and working undercover.
(g) Col Phago failed to induct plaintiff into the workings of informers.
5
[16] The d efendant in the amended pleadings in short denied that the arrest and
detention of plaintiff were wrongful and unlawful. It was also denied that the
plaintiff was an unregistered informer , with Col Phago as his handler , and the
plaintiff was put to the proof thereof.
[17] The d efendant pleaded that the arrest was conducted in terms of s ection
40(1)(b) of the CPA read together with s ection 36 of the General Law
Amendment Act. It was further pleaded that
(a) The arrestor was a peace officer.
(b) The arrestor entertained a suspicion.
(c) The arrestor’s suspicion was based on plaintiff’s possession of a hijacked
vehicle.
(d) The suspicion was based on reasonable grounds.
[18] The d efendant further pleaded that the plaintiff was detained from Friday, 31
January 2020 until Monday, 3 February 2020 when he was taken to court. The
arresting officer exercised his discretion to arrest and detain the plaintiff after
interviewing him and noticing that the particulars of the vehicle were changed.
Common Cause Facts
[19] It is common cause that on 31 January 202 plaintiff was in possession of a
Hyundai i20 (the vehicle) which was hijacked on 26 January 2020 in Wattville,
Germiston.
[20] At the time that the plaintiff was confronted, it was known that the vehicle was
a hijacked/stolen vehicle.
[21] The two police officers, Sgt Moloto and Sgt Lebina from the Germiston Flying
Squad attended the scene. Tracking security officers were also at the scene.
[22] A person named Mandla was arrested at the scene on a charge of hijacking of
the vehicle.
[23] The p laintiff and Mandla were removed from the scene to the Vosloorus Police
Station. The p laintiff was provided with a document setting out his rights as a
6
detainee and was in custody until Monday, 3 February 2020, when he was
taken to court.
[24] At the court, the plaintiff was released without appearing in court.
[25] By 10 February 2020, the plaintiff was registered as an informer for the Crime
Intelligence branch of Germiston.
Issues to be Decided by Court
[26] The first issue to be decided is whether the arrest and detention of the plaintiff
was lawful. Should it be found that the arrest and detention was not lawful, then
the amount of damages must be determined.
[27] Further, t he issue of the plaintiff being an unregistered undercover informer, as
this relates to whether the explanation provided by him for his possession of
the vehicle was reasonable .
[28] Damages in the amount of R1 209 000 are claimed and it is made up of the
following:
(a) Estimated medical expenses of R150 000.
(b) Monies disbursed being R4 000 paid to an advocate and R5 000 to D/Sgt
Molefe as “ entrapment to facilitate his release .”
(c) Replacement value of plaintiff’s vehicle in the amount of R50 000.
(d) General damages in the amount of R1 million.
[29] General damages as indicated in the pleadings relate to the plaintiff having
suffered humiliation and anxiety, and resulting in the plaintiff having to withdraw
his candidacy as a member of the Democratic Alliance (DA). He further stated
that he lives in constant fear for his safety and he suffered reputational harm.
[30] The remaining damages are special damages as the plaintiff indicated that he
suffered patrimonial loss in the mentioned amounts due to the actions of the
employees of the defendant.
7
Background
[31] The two members of the Flying Squad were on duty on 31 January 2020 and
busy patrolling the Vosloorus area when they received information that a
hijacked Hyundai i20 (the vehicle) was driving around in Vosloorus.
[32] They arrived at the scene where the vehicle was parked and Sgt Moloto
approached the plaintiff who was seated in the driver’s seat, whilst Sgt Lebina
provided cover.
[33] The p laintiff was asked where he got the vehicle from and he explained that he
bought the vehicle from Mandla and he could not give the surname. Whilst busy
at the scene, the plaintiff’s wife arrived, accompanied by a man, and the plaintiff
pointed the man out as Mandla, being the person who he got the vehicle from.
[34] When Mandla was confronted with the version of the plaintiff, he denied any
knowledge about the vehicle, but he was at that point arrested for the hijacking
of the vehicle, whilst the plaintiff was arrested for possession of a stolen or
hijacked vehicle.
[35] Sgt Lebina testified that when the plaintiff indicated that he bought the vehicle
from Mandla, they asked him to show them proof of such purchase, but he
couldn’t. The p laintiff was then arrested for being in possession of a
hijacked/stolen vehicle.
[36] Sgt Lebina indicated that they made sure that the vehicle was the hijacked
vehicle. Both the policemen denied that they were informed by the plaintiff that
he was an informer and requested to contact his handler, Col Phago. They
further indicated that they did not know a Col Phago.
[37] Both policemen were asked wh ether the tracker security or if they were first on
the scene. Sgt Moloto indicated they arrived first and Sgt Lebina indicated that
they arrived together.
[38] They acknowledged that they provided a second affidavit at the request of the
prosecutor. They both indicated that their first statements were complete and
that the statements were made for purposes of dealing with the arrest of the
8
plaintiff. Both denied that they failed to include reference to the plaintiff being
an informer.
[39] Sgt Molefe was called, who indicated that he was the investigating officer in the
matter until he was removed. He took a warning statement from the plaintiff on
2 February 2020. The statement was handed in as an exhibit.
[40] Sgt Molefe indicated that although the statement was taken on 2 February
2020, he dated it 31 January 2020 at Vosloorus Police Station. The statement
was however taken at Katlehong Police Station , which it appears that the
plaintiff and Mandla were taken to at a later stage.
[41] The p laintiff in his statement indicated that he did not know that the vehicle was
hijacked. In cross -examination, it was put to Sgt Molefe that he failed to record
everything the plaintiff told him; he denied this allegation.
[42] Sgt Molefe indicated the plaintiff wanted “ station bai l” but he advised him that
the charge was very serious and he should obtain the services of a lawyer. The
plaintiff then indicated that he already obtained the services of a lawyer and
had already paid the lawyer.
[43] In cross -examination, it was stated to Sgt Molefe that he elicited a bribe of
R5 000. He denied that he would have stated to the plaintiff that should he be
paid R5 000 he would not oppose bail and he and a prosecutor at the court
would make the case disappear.
[44] The p laintiff’s wife had apparently paid D/Sgt Molefe the R5 000. According to
the plaintiff , Molefe had gone to the plaintiff’s house where the R5 000 was
handed over to him by his wife. Molefe denied that he went to the plaintiff’s
house for the bribe money and indicated that he went to the plaintiff's house to
fetch the registration papers of the vehicle.
[45] The p laintiff contacted IPID and laid a complaint against D/Sgt Molefe in respect
of the bribery. D/Sgt Molefe indicated he was acquitted on it, whilst the plaintiff
indicated that he was found guilty and given a final written warning.
9
[46] The p laintiff called Sgt Sylvester Maphela who was subpoenaed to appear in
court. He is attached to Crime Intelligence, Germiston.
[47] Sgt Maphela indicated that he was introduced to the plaintiff by Brig Denge from
Vosloorus Police Station at a meeting, inter alia, with his superior Capt
Khalishwayo at the offices of Crime Intelligence on 6 February 2020.
[48] It was stated by Brig Denge that the plaintiff had good information on car
hijackings and that he had already participated in providing information. Sgt
Maphela indicated that he ha d no personal knowledge and could only relay
what he was told by Brig Denge. The witness was unwilling to register the
plaintiff as an informer at that time as he felt that the plaintiff had his criminal
case to deal with, but he was instructed to do so by his superiors. He was the
plaintiff’s handler until he deregistered the plaintiff as an informer.
[49] The p laintiff was coached on his role as an informer and it was explained to him
that he was only to provide information, the information is to be provided to the
handler only, and that should it be found that he committed an offence then his
status as a registered informant would not help him.
[50] Sgt Maphela testified that a civilian informer would not be used to do
undercover work as the police use trained police officers to conduct undercover
operations. He does not know how the Vosloorus Police Station dealt with their
informers. No information was placed before the court on the manner of dealing
with informers by Vosloorus Police Station.
[51] The plaintiff testified that he realised that his tenant was part of a group of young
men who were carrying firearms and he overheard them discussing the
hijacking of vehicles. He first approached a friend who is a policeman and
explained that he has informatio n on these men. His friend in turn referred him
to Col Phago.
[52] He approached Col Phago during September or October 2020. He informed
Col Phago of what he saw and overheard but Col Phago indicated that he
required more solid evidence and that the plaintiff should provide more concrete
information before the young men could be locked away permanently. Col
10
Phago apparently warned him not to discuss this issue with his wife as she may
tell others in the event of them arguing.
[53] As his evidence progressed, the suggestion/request of Col Phago became an
instruction. He was not given any contact details of Col Phago and he testified
that he could not be seen going to the police station regularly as it would raise
suspicion. When he was asked why he did not contact his friend in the police
to obtain the telephone number of Col Phago, he indicated that he could have.
[54] The plaintiff’s evidence is that he left and decided that he was an informer and
that Col Phago was his handler. He decided in furtherance of his “employment
contract” with the police as an informer that he would infiltrate the gang and he
would also investigate.
[55] At some stage, Mandla, who was one of the gang members, showed an interest
in his wife’s Peugeot 206. The Peugeot had mechanical problems – problems
with its ball bearings - but that did not deter Mandla as his father was a
mechanic and they would sort out the ball bearings issue of the Peugeot.
[56] On 26 January 2020, after the plaintiff dropped his wife off at church, Mandla
came to his house and said that they secured a vehicle for the plaintiff, which
vehicle was standing across from his house. As the Peugeot could not be
driven, it was pushed out of his yard by the young men and the other vehicle
was parked in his garage.
[57] After the vehicle was left in his garage, Mandla indicated that they would come
and remove the tracker from the vehicle the next day and the vehicle would be
taken to “clean ” the engine. The p laintiff did not elaborate on what it meant to
clean the engine, but he had to pay for the engine to be cleaned.
[58] Up and until the plaintiff’s arrest, he accompanied some of the gang members
with the vehicle to have the engine cleaned and collect documents to allow him
to transfer ownership into someone else’s name. The p laintiff paid some R5 000
to obtain the documentation to register the vehicle in some other person’s
name.
11
[59] He went so far as to pay the outstanding traffic tickets of the owner to allow the
transfer of ownership to go through. The p laintiff was at pains to explain that
despite the gang wanting him to provide his ID to register the car in his name,
he would not allow this and someone else’s identity was used for ownership
transfer of the vehicle.
[60] On 31 January 2020, Mandla indicated when he handed him the keys of the
vehicle for the first time that he must not drive the vehicle in the Wattville area
until he had repainted the vehicle and tinted the windows, as the Wattville area
was where the vehicle was from. The p laintiff indicated to Mandla that he was
going to have the windows tinted. It is not clear whether this was indeed done.
[61] At that stage, he felt that he had enough information for the arrest of the gang
members and he was going to go to Col Phago with the vehicle.
[62] He, however, decided to prioritise the collection of rent before going to Phago.
Whilst he was at the house of his tenant, he was called to the vehicle. At the
vehicle, he was apprehended and handcuffed by the tracker security, and it is
his evidence that he was arrested by them. He informed the tracker security
that he was an informer and working undercover; they did not do anything about
it.
[63] After 3 to 4 hours, the police arrived and, despite him informing them that he
was an informer and they must call his handler, Col Phago, they “colluded ” with
the tracker security to continue his arrest.
[64] He indicated to the police that he got the vehicle from Mandla, he provided a
description of Mandla, and that Mandla and his friends brought the vehicle to
him, the boys were criminals and gangsters. He denied informing the police that
he bought the vehicl e as no money changed hands. In cross -examination, the
plaintiff conceded that he also told his wife that he had bought the vehicle, but
he did this so that she would not know about him being an informer and ask too
many questions.
[65] The p laintiff’s wife and Mandla arrived on the scene although they came
separately and from different directions. Mandla went directly to Sgt Moloto and
12
tried to negotiate for the plaintiff’s release; the police said they were not the
investigating officer and the plaintiff must speak to the investigating officer.
[66] Mandla and the plaintiff’s wife left to fetch clothes and medication for the
plaintiff. The p laintiff viewed the aforementioned that they were making a deal
with the devil as he had already indicated to the police that Mandla was the
person he got the vehicle from. The police apparently said that they did not
realise that it was the same Mandla th at the plaintiff got the vehicle from.
[67] Mandla was arrested upon his return with his wife and his medication and some
clothes. He gave his wife the registration papers of the vehicle for her for
safekeeping .
[68] The p laintiff’s evidence is that he was arrested by the security officers and not
the police; his rights were not read to him, but at the police station he was
arrested and his rights were explained to him by the police. He explained that
there is a difference between being arrested and detained.
[69] In cross -examination, he explained that he sued the police because they
colluded with the security officers to have him arrested and they must be held
liable for that. The police, instead of remedying the situation, colluded with the
security in respect of his wrongful arrest.
[70] He indicated that he found himself in this situation because of the instructions
of Col Phago. The p laintiff indicated that he knew that the persons who gave
him the vehicle had no rightful (lawful) ownership of the vehicle and he realised
this from his investigations.
[71] The p laintiff indicated that when he explained to the police that he was an
informer, it was not that he should not be arrested, but that they should contact
Col Phago, who was to confirm that he was working undercover for him and he
would then have been releas ed. He then stated that informers do not get
detained and that their handlers are to be contacted so that they can be
immediately released.
13
[72] The p laintiff indicated that he could not provide proof of purchase as no money
changed hands. He exchanged the Peugeot for the vehicle and was not going
to keep the vehicle as he was on duty, as an undercover informer for the police.
[73] The p laintiff indicated that he was in the employ of the Minister of Police, he
indicated that it is common knowledge that when people give the police
information, they are informers, as he grew up with people being burnt in the
township for providing informati on to the police.
[74] Plaintiff indicated there is a clause in law which he could not remember at that
time, but it says that even if you are not a registered informer, that you are
protected by the law. I have not been provided with any law stating the
aforementioned.
[75] He was not released but taken to Vosloorus Police Station where he at some
stage met with Colonel Khoza who similarly was not interested in his status as
an informer but assisted in calling for an attorney. Apparently, Col Khoza
phoned Col Phago but could not get hold of him. An attorney did approach him
but nothing came from that.
[76] The p laintiff was removed to Katlehong Police Station where he and Mandla
were approached by Advocate Khethelo. The advocate indicated that he could
assist them in that he would speak to the prosecutor and the IO (investigating
officer) . He indicated that his fee was R8 000 but they can pay him each
R4 000.
[77] The p laintiff then arranged with his wife, who agreed to pay “R4 000 and
R4 000” and it appeared that he also paid for Mandla to be represented.
Advocate Khethelo, however, disappeared after being paid and nothing came
from acquiring the services of the advocat e.
[78] The investigating officer, D/Sgt Molefe came on 2 February 2020. The p laintiff
then indicated that he already saw D/Sgt Molefe on the Friday after his arrest
when another policeman came to introduce himself as the IO .
14
[79] D/Sgt Molefe indicated that Adv Khethelo failed to give him his cut of the R4 000
and therefore demanded R5 000 from the plaintiff and Mandla to ensure that
he does not oppose bail and promised to make the case “disappear” with the
assistance of a senior prosecutor. D/Sgt Molefe indicated that cases do not just
disappear as it is registered on the system where it can be acce ssed.
[80] The p laintiff indicated that he was prepared to take a bullet for his country and
decided to pay the bribe to expose D/Sgt Molefe. He arranged with his wife,
who, due to safety reasons , was not willing to come to the police station for
payment of the R5 000.
[81] The p laintiff’s wife apparently paid the R5 000 bribe at their house. Mandla
separately arranged for his bribe money. They were taken to the court on 3
February 2020 after some delay s, where, according to the plaintiff, he was then
deprived of his constitutional right to appear in court. He and Mandla were
released from the police cells without appearing in court.
[82] D/Sgt Molefe informed them that he had to share the money with a prosecutor
called Rose. Whilst being at the holding cells of the court, D/Sgt Molefe and
Adv Khethelo came to them informing them that it was their lucky day as the
prosecutor said it was ok ay, as they were being released, and once released,
they left.
[83] He claims damages for reputational harm as before his arrest he was registered
for the legislature of Gauteng for his party, which appears from the pleadings
to be the DA.
[84] After his release, he went to speak to Col Phago who made him wait for a long
time and did not eventually get the opportunity to speak to Col Phago. He
thereafter approached Brig Denge who was the station commander and
reported Col Phago to his superior. It was arranged with Crime Intelligence that
he be registered as an informer.
[85] The p laintiff indicated that since his arrest and detention, Mandla and his friends
accused him of being an impimpi and he lives in fear. He was able to convince
15
them that he wasn’t one as he was also arrested. The word in the community
is, however, that he is an informer to the police.
[86] His health is affected as he forgets, and previously he would go out to parties,
but now he is indoors, fearing for his life. He is short -tempered, and feels he
was betrayed by the system.
[87] The last time he registered for his party was in 2021, he now has financial
problems as some of his properties are empty. He further suffers due to the
lack of support from the police. The p laintiff also testified in evidence in chief
that he is a career politician.
[88] The plaintiff indicated that he reported to ten police officers that he was an
informer of Col Phago, and only Col Khoza attempted to contact Col Phago
[89] In re-examination, the plaintiff indicated that he received no training from Col
Phago , but he was of the view that there was an employer -employee
relationship as only an employer can give his employee an instruction to get
information.
[90] The p laintiff confirmed that he made a further statement on 18 February 2020
to indicate to the police that he was working with them.
Discussion
[91] The Flying Squad members involved in the arrest have several years of
experience as police officers, and there is nothing to indicate that the arrest of
31 January 2020 was anything out of the ordinary.
[92] The events of the 31st of January 2020 were typical in the day of a Flying Squad
member , there was nothing particularly memorable about the incident. Which
is why the arrest statements are so important , as the officers' recollections
would likely depend on the details provided in the arresting affidavit . It seems
to me that a suspect claiming to be an informer and working undercover would
be a notable detail that should have stood out in their memory.
16
[93] The contradiction in the evidence of the Flying Squad members as to who first
arrived at the scene does not detract from the value placed on their evidence
around the arrest, and the aforementioned does not affect the credibility of the
two policemen. I do not find it strange that they cannot remember such details,
having regard to the fact that the arrest took place some 5 years ago, where,
according to their evidence, nothing eventful took place. Sgt Lebina, for
example, could not remember that medication was brought for the plaintiff. It
is further clear that Sgt Moloto in all probability forgot who arrived first on the
scene.
[94] Much was made of a further statement at the request of the prosecutor, I,
however, find nothing untoward in a request for such a further statement nor in
providing a further statement. The two Flying Squad members' evidence is that
anything left out was no t done to intentionally keep material facts out of the
statement, but that it seemed not of importance.
[95] The pleadings do not indicate that the plaintiff was arrested by the security
officers. It is only in the plaintiff’s evidence that he indicated the alleged
“collusion ” between the Flying Squad members and the security officers to
perpetuate the unlawfulness of the arrest is to be placed before the defendant’s
door.
[96] If the plaintiff wanted to prove the unlawfulness of his arrest by the security
officers and to hold the defendant liable for that, then it should have to be
pleaded. This was not done. The p laintiff’s statement of February 2022 does
not indicate an arrest by the tracker security.
[97] The evidence of the plaintiff revolves around him being an informer and how he
went undercover to acquire information of criminal activities. The
aforementioned must be assessed in the light of the undisputed evidence of
Sgt Maphela. Sgt Maphela is in Crime Intelligence and i s a handler dealing with
informers.
[98] The p laintiff testified on the role, function, and manner of conduct of an informer,
which information he could not have had at the time of his arrest. He indicated
when asked how he obtained his knowledge on informers and he referred to
17
the apartheid times, when informers or impimpis were burnt for providing
information, and what everyone in the community would know about impimpis.
[99] He could not have known the routines, duties, and advantages of being an
informer at the time of his arrest as it is his case that “Col Phago failed to induct
the Plaintiff into the workings of informers.” There is no evidence that prior to
the meeting wit h Col Phago that he was an informer or that he had any
knowledge of informers other than what is stated above.
[100] It is important to understand what happened between him and Col Phago, as
this, according to plaintiff, is the reason for the situation he finds himself.
[101] In his particulars of claim, it is stated that it was suggested by Col Phago to the
plaintiff to find something more concrete. In his statement in February 2022, he
stated that Col Phago told him to get something concrete so that the young men
could be put away permanently. It should be noted that it was Mandla’s father
who initially told the plaintiff that Mandla and the young men were criminals.
[102] In his evidence, the suggestion by Col Phago changed from a request to an
instruction . At the end of his evidence, the nature of the instruction was such
that he became an employee of the Minister of Police. In fact, he considered
this instruction to be one that made him an informer, that could go undercover
and commit various crimes in th e name of being an undercover informer. All of
the aforementioned was in furtherance of his employment with the Minister of
Police.
[103] Adv Leeuw argued that plaintiff, at the time that he was arrested, on 31 January
2020, provided information on criminal activities to the police and more
particularly Col Phago.
[104] At the time he approached Col Phago, the only information he had was that his
tenant and his friends walked around carrying firearms. In the particulars of
claim, it was stated that he believed they did not possess the necessary
licenses for these firearms .
18
[105] The aforementioned was the totality of information on criminal activities that he
provided. I am not surprised that Col Phago thought that the information was
very thin and that he needed something more substantial before the police go
and arrest people. T here is however nothing in the aforementioned indicating
that he was requested to be an informer. Col Phago’s failure to provide his
contact details to the plaintiff in my view is an important indicator that the plaintiff
was not considered an informer .
[106] The experience of the plaintiff on inform ers up to that stage was that he grew
up in the township where people were killed for being informants or an impimpi.
The p laintiff received no training on inform ers and he was at no stage informed
that he had a handler and that he was now an inform er, in fact, he did not even
have the contact details of his “handler ”, Col Phago
[107] By his own testimony, t here was not a hint of a request or a suggestion to
investigate, go undercover, or assist a gang in any criminal activities , to the
plaintiff by Col Phago.
[108] Sgt Maphela, the witness for plaintiff, testified that the police would not use a
civilian, like the plaintiff, to go undercover. The police will use trained police
officers to go undercover. He further testified that he told the plaintiff that if he
is arrested for any crime, the fact that he is an informant will not help him, he
will still be arrested.
[109] The p laintiff testified that he has an employment contract with the Minister of
Police as it is only an employer that can give you an instruction to do certain
work. There is no allegation in the pleadings that the Minister of Police or any
of his servants cont racted with the plaintiff regarding a position as an inform er
or any other work.
[110] Paragraph 6 of the particulars of claim states: “ Col. Phago suggested to Plaintiff
to find something more concrete which will send the gang to prison for a long
time.” [my emphasis]. There is no instruction nor any suggestion that the plaintiff
entered into a contract with the Minister of Police.
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[111] There is nothing in the pleadings to suggest that the plaintiff on 31 January
2020 was an informer for the police. The evidence provided to prove the
plaintiff’s case contradicts his evidence as Sgt Maphela indicated that a civilian,
which the plaintiff is, would not be used to perform undercover work. Further ,
he is not a policeman who could investigate any criminal activities, and as an
informer , all he would have to do is to give his handler information on criminal
activities.
[112] The p laintiff’s case is that when he attended the offices of Crime Intelligence he
had already been giving information to the detectives of Vosloorus and it was
good information. The aforementioned cannot be true for the period up to 31
January 2020, and there is no evidence that the plaintiff gave information which
was good before 6 February 2020. It is not clear what was told to Brig Denge
and what Brig Denge told anyone else, as he was not called. Col Phago was
not called either.
[113] It is thus clear that whatever knowledge the plaintiff acquired in respect of
informers was done after the fact. The evidence of the plaintiff as to informers
is also not correct, for example, that civilians would be used to go undercover.
[114] The evidence around the procurement of the vehicle is also contradictory. The
particulars of claim indicate in paragraph 8 that plaintiff “ made a deal with the
gang to swop his Peugeot 206 for another car .”
[115] In his statement of 18 February 2022, it is stated that he initiated the exchange
of the Peugeot and the vehicle. He was the one who indicated to the gang that
the Peugeot was giving him problems, he needed a car, and enquired whether
they could make a plan.
[116] He testified that Mandla was interested in his wife’s Peugeot 206 and this was
how it came about that the vehicles were exchanged. In his statement of 18
February 2020, he indicated the following: “ I got to know these people and later
told them my car is giving me problems and I needed a car I asked them to
make a plan and they agreed to help me in getting another car. On 2020/02/26
all five of them arrived and told me they got a car for me. They tol d me to park
my Peugeot outside and I did. They all left a nd came back after about 15
20
minutes with a white Huydai i20. We parked it in the garage and Mandla took
my Peugeot and left.”
[117] The aforementioned differs materially from his evidence -in-chief. The
impression from his evidence -in-chief was that he did not solicit the
procurement of a stolen/hijacked vehicle but Mandla’s interest in the Peugeot
provided an opportunity.
[118] The statement of 18 February 2020, in my view, indicates that the plaintiff
intentionally requested a car from the gang. It should be remembered that the
plaintiff’s evidence was that the modus operandi of the gang was to hijack cars
and he could have come to no other conclusion that if he requested the gang
to procure a car for him it was hijacked and possibly stolen.
[119] In cross -examination of the plaintiff, he denied that he knew that the vehicle
was hijacked but conceded that it was not obtained by honest means. The
plaintiff was very clear that the gang hijacked vehicles but was not prepared to
state that this vehicle was hijacked.
[120] The pleadings indicate that the gang hijacked cars as it stated in paragraph 7
of the particulars of claim “ Plaintiff then decided to infiltrate the gang and
established that they hijack motor vehicles .”
[121] In the statement of February 2022, he indicated that the vehicle was in his
garage for a week when he, on 31 January 2020, started the vehicle and went
to see his tenant to collect the rent. It was whilst he was with the tenant that he
was called to the ve hicle and the tracker security confronted him.
[122] Up to that stage, there is no indication that he was on his way to Col Phago to
deliver the vehicle. It was only after he was confronted by the tracker security
that he then indicated that he took the vehicle from Mandla to give to Col Phago.
[123] In his evidence, the plaintiff indicated the engine was cleaned and the vehicle
registered to another owner, but before the windows could be tinted and the
vehicle painted, he decided to give the vehicle to Col Phago on 31 January
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2020.6 He, however, prioritised the collection of rent before taking the vehicle
to Col Phago. It was then that he was confronted by the security.
[124] The p laintiff’s explanation was that 31 January 2020 was the day that he had
enough evidence to take the vehicle to Col Phago. It is not clear what was
sufficient information.
[125] The Flying Squad members’ evidence, despite their inconsistencies around
who arrived first at the scene, is clear in that the plaintiff did not report to them
that he was an informer. There is no reason why they would not report that was
the explanation given for the possession of the vehicle. Having regard to the
particulars of claim, where he would have whispered to them that he is an
informer seems absurd in the light that he had already told the tracker security
that he was an informer. The aforementio ned is an indication that he did not
inform the tracker security that he was an informer.
[126] The Flying Squad members indicated that they arrested and handcuffed plaintiff
on the scene and read him his rights. The p laintiff indicated in his evidence that
he was arrested by the tracker security. The particulars of claim do not disclose
this fact as it is stated that he was confronted by the tracker security, and neither
does the statement of February 2022 confirm an arrest by the tracker security.
The p laintiff’s basis for holding the defendant liable for th e arrest , alleging the
Flying Squad member s colluded with the security to arrest him, appears to be
a version created after-the-fact.
[127] The arrest of the plaintiff was effected by Sgt Mol oto who is a peace officer.
The p laintiff indicated under his list of breaches of duty that the Flying Squad
members arrested him before formulating a reasonable suspicion.
[128] The vehicle was being tracked by the tracker security and the police, and it was
known to both the policemen and the security that this vehicle was a hijacked
vehicle. There was no need to form a susp icion that the vehicle might be stolen,
they knew the vehicle was hijacked. Sgt Lebina indicated that they made sure
that the vehicle was indeed the hijacked vehicle they were looking for.

6 It is not clear whether the tracker was removed the same day of the cleaning of the engine.
22
[129] The policemen asked the plaintiff for an explanation for his possession and the
explanation was not a satisfactory explanation for the reasons given by the
Flying Squad members.
[130] The plaintiff was arrested for being in possession of a hijacked vehicle and this
is evident from the two Flying Squad members’ evidence and is reflected in the
Notice of Rights in terms of the Constitution given to the plaintiff. Sgt Lebina
indicated that the explanation , being that he purchased the vehicle from
Mandla , was not reasonable as he could not show that he had purchased the
vehicle.
[131] Section 37(1) requires that there must be a reasonable cause for believing the
vehicle was properly acquired. The lack of proof that the vehicle was purchased
was enough for the police officers to arrest the plaintiff.
[132] Section 37(1) establishes an offence that is tabled in Schedule 1 of the CPA.
The grounds on which the police officers based their arrest were that they knew
the vehicle was hijacked, the plaintiff was found in possession of the vehicle,
and the reasons for his possession did not disclose a reasonable cause.
[133] The p laintiff did not call any other witnesses except for Sgt Maphela to
corroborate any of the issues around him being an informer.
[134] The p laintiff is either extremely naïve for a 53 -year-old career politician or he
fabricated the evidence as an informer to cover up his involvement with the
hijacked vehicle. I am not convinced that the plaintiff obtained the vehicle under
the guise of being an undercover informant, and neither am I convinced that he
felt that he had enough information to go to Col Phago on the 31st of January
2020.
[135] The arrest of the plaintiff was the reason for this elaborate narrative presented.
The p laintiff needed a narrative to explain his possession of the hijacked
vehicle.
[136] I further find it highly improbable that he would report to 10 policemen that he
is an informer and not any of them did anything. It is clear that the plaintiff was
23
at no stage an informer until he was registered as one in February 2020 and
Col Phago or any of the employees of the defendant could not have been
negligent regarding the induction or registration of plaintiff as an informer. Had
any of the police officials gone to confirm that the plaintiff was an informer, could
investigate, go undercover, and solicit a hijacked vehicle only to commit various
crimes to obscure the identity of the vehicle, then they would have found that
he could not.
[137] The p laintiff at paragraph 31 of his particulars of claim indicated the rights he
alleged were violated. The p laintiff carries the onus of proving the violation of
these rights. He indicated that he had a right to be protected as an informer and
his right to dignity was violated by his arrest. It is a fact that the plaintiff was not
an informer , and it is not clear how the plaintiff had to be protected and on what
basis plaintiff had to be protected when he was participating in a crime.
[138] Brig Denge would have made certain disclosures which constitute hearsay and
no exceptions were pleaded or argued. Brig Denge was not called as a witness
and no explanation was given for the failure to call him.
[139] The third right alleged to be violated relates to plaintiff’s right to earn a living as
he had to withdraw his candidacy to the legislature as DA candidate due to the
pending criminal matter .
[140] The p laintiff’s evidence was that he did not withdraw his candidacy but did not
proceed with it as the DA would not have allowed him to stand as a candidate.
There is no evidence that the plaintiff had any chance of reaching such a
position. He has further not provided any evidence regarding his right to earn a
living or any loss in that respect.
[141] I am not persuaded that plaintiff on the strength of a n alleged suggestion from
Col Phago, decided that he is an informer who may investigate criminality as if
he is a policeman, infiltrate a gang of hijackers, and then start committing
crimes all in the name of being an informer.
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Dates of hearing: 11, 12 & 13 February 2025

Date of judgment: 13 March 2025




Appearances

For the Plaintiff : Adv. L. Leeuw

Instructed by: E. Ta lane Inc



For the Defendant : Adv. M . Boko
Instructed by: State Attorney - Johannesburg