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[ Reportable: Yes/No
crit to Judges: Yes/No
Circulate to Magistrates: Yes/No
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
CASE NO.: 579/2019
Date heard: 24-04-2023
Date delivered: 07-03-2025
In the matter between:
SEBEELA: ROBERT OATLHOTSE 1° Plaintiff
MANAKA: MOSHE MOSES 2"9 Plaintiff
and
THE MINISTER OF POLICE 18* Defendant
NATIONAL DIRECTOR OF PUBLIC
PROSECUTION 2™4 Defendant
CORAM: WILLIAMS J:
JUDGMENT
WILLIAMS J:
1. The plaintiffs, Mr RO Sebeela and Mr MM Manaka issued summons against
the 1° defendant, the Minister of Police and the 2 defendant, the National
Director of Public Prosecutions, for damages as a result of wrongful and/or
unlawful detention (emanating from an unlawful arrest and detention in
inhumane circumstances) from 21 September 2016 until 27 February 2018,
and as against the 2"? defendant for damages for wrongful and/or malicious
prosecution.
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2. It is not in dispute that the plaintiffs were arrested on 9/10 May 2010. They
faced charges of alleged theft alternatively possession of stolen goods and
unlawful possession of dagga. The charges were at one stage withdrawn
and then reinstated with the criminal trial proceeding in the Regional Court,
Kimberley from some time during 2013 until the plaintiffs were convicted on
the charges and sentenced on 21 September 2016 to 5 years imprisonment
on the count of theft and 6 months imprisonment on the count of unlawful
possession of dagga. Thereafter the plaintiffs were detained in various
correctional facilities until their release on bail pending appeal on 27
February 2018. On 24 August 2018 the court of appeal set aside the
convictions and sentences.
3. In its plea the 18 defendant denied that the arrest of the plaintiffs was
unlawful and pleaded that a reasonable suspicion existed that a criminal
offence was committed as contemplated in s40(1)(b) of the Criminal
Procedure Act, 51 of 1977. The 1% defendant also denied any damages
suffered as a result of the plaintiff's detention and denied that such damages
could in any event be claimed from the 1%‘ defendant.
4. The 2"4 defendant denied that the detention of the plaintiffs was unlawful
and denied any liability for any damages to the plaintiffs. The 2°? defendant
denied that the prosecution of the plaintiffs was unlawful or malicious and
pleaded a prima facie case against the plaintiffs. The 2"! defendant also
denied liability for any damages to the plaintiffs in this regard.
5. The merits and quantum were separated and the trial proceeded before me
on the merits only.
6. The plaintiffs presented their evidence first, presumably on the basis that
the plaintiffs bore the onus on certain issues.
7. Both plaintiffs testified and at the close of their case, halfway through the
last day allotted for the trial, the parties agreed that the matter be
postponed. Mr Visagie for the defendants expressed the need for the
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record to be transcribed in order for the defendants to consider their
positions with regard to the further conduct of the trial.
8. When the matter resumed, Mr Visagie brought an application for absolution
from the instance on the basis inter alia: that the plaintiffs, during cross-
examination, either conceded or admitted by implication that their arrests
were lawful; that the fact that the plaintiffs were detained in sub-standard
conditions is not a legally valid ground for basing a claim of unlawful
detention on; the plaintiffs did not make out a prima facie case against the
1 defendant for unlawful arrest and detention; that there was no evidence
tendered that the prosecutor, in employ of the 2"? defendant, participated in
the arrest or detention of the plaintiffs; and the plaintiffs failed to prove that
the 2™4 defendant acted without reasonable and probable cause in
prosecuting the case against the plaintiffs.
Unlawful detention
9. It is trite that the onus rests on a defendant to justify an arrest. It is
incumbent on the 1St defendant to establish the jurisdictional facts for a
s40(1)(b) defence which is: (i) the arrestor must be a peace officer, (iii) the
arrestor must entertain a suspicion; (iii) the suspicion must be that he
suspect committed an offence referred to in schedule 1; and (iv) the
suspicion must rest on reasonable grounds (see Duncan vs Minister of Law
and Order 1986(2) SA 805 (A) at 818 G-H)
10. Whilst it is so that the plaintiffs do not specifically claim damages as a result
of the alleged unlawful arrest, their claims for the alleged unlawful detention
is stated in the particulars of claim to have emanated (in part) from an
unlawful arrest. The argument that certain concessions had been made
relating to the arrest (on which | do not intend to make a finding herein),
does not shift the onus from the party on which it originally rested (see
Schoeman v Moller 1949(3) SA 949 (O) at 957).
11. That being said, where the onus rests on the defendant to prove certain
issues, absolution from the instance should not be granted at the close of