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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION, PIETERMARITZBURG

Case No. AR134/24

In the matter between:

M[...] G[...] Appellant

and

THE MINISTER OF POLICE Respondent

ORDER

On appeal from: The Magistrates Court for the District of eThekwini held
at Durban (Ms BG Shabalala sitting as court of first instance):

1. The appeal is upheld to the extent that the respondent is found
liable to compensate the appellant for damages arising from his
unlawful arrest and detention.
2. The matter is remitted to the court a quo for hearing and judgment
in respect of the quantum of the appellant's damages arising from
his unlawful arrest and detention.
3. The respondent is directed to pay the costs of the appeal, such
party and party costs are to be on Scale B.

JUDGMENT

Singh J (Henriques J concurring)

Introduction
[1] This appeal arises from the dismissal of the appellant's claim for
damages in respect of an alleged unlawful arrest and detention. Judgment in
the court a quo was granted against the respondent, who after having
delivered a plea failed to attend the pre -trial conference and the trial.

The allegations on the pleadings
[2] The material allegations in the appellant's particulars of claim are the
following:
(a) on 24 September 2015, at Durban, members of the South African
Police Services ('SAPS'), acting within the course and scope of
their employment with the respondent, arrested and detained the
appellant on a charge of assault;
(b) the arrest and detention were unlawful in that the said police
officers were not in possession of a warrant of arrest, alternatively
the arrest and detention was contrary to the provisions of s 40 of
the Criminal Procedure Act 51 of 1977 (the CPA);
(c) the offence of assault was neither a schedule 1 offence nor a statutory
offence;
(d) the appellant was detained from 24 September 2015 until 28
September 2015, when the charges against him were withdrawn;
(e) during his arrest and detention, the appellant was subject to
interrogation and intimidation by members of the SAPS and
consequently, suffered damages in the form of deprivation of his
liberty, pain, mental anguish, trauma, contumelia, and loss of
dignity;
(f) he claimed the sum of R200 000 as damages arising from his
unlawful arrest and detention.

[3] In the plea, the respondent pleaded as follows:
(a) the respondent denied any knowledge of the appellant's arrest and
detention;
(b) the respondent specifically denied that:
(i) the appellant's arrest and detention was effected without a
warrant and contrary to the provisions of s 40 of the CPA;
(ii) the appellant was charged with an offence that was neither a
schedule
1 offence nor a statutory offence;
(iii) the appellant was subject to interrogation and intimidation
by members of the SAPS or that he suffered damages in
the sum claimed or any damages at all.

The proceedings in the court a quo
[4] It is common cause that the respondent failed to attend the pre-trial
conference held on 7 September 2021, nor was there any appearance on
his behalf at the trial on 2 November 2023. The trial proceeded in the
absence of the respondent on both the issues of liability and quantum .

[5] The appellant's evidence was as follows :
(a) he was 36 years old and employed as an operations controller
at Servest Marine;
(b) he had two children and was separated from his wife (the
complainant);
(c) on the evening of 23 September 2015, he and the complainant
had a minor altercation and he left the matrimonial home;
(d) at approximately 7h00 on the morning of 24 September 2015, he
returned to the matrimonial home and went to sleep when he was
awoken by two police officers;
(e) the police officers advised him that the complainant had
telephoned them and reported an altercation between the
appellant and her. The police officers told him that they had come
to arrest him;
(f) he was handcuffed and placed in the police vehicle;
(g) at the police station, his details were taken but his constitutional
rights were not explained to him;
(h) he was detained in a cell at the Wentworth Police Station and was
advised that he could only apply for bail when he appeared at
court;
(i) the cells at the police station were untidy and had no drinking
water. He was not provided with food. While waiting to appear at
court the following day, he was only given mouldy bread and juice;
U) he appeared in court on 25 September 2015 and the matter was
adjourned to 28 September 2015;
(k) he was thereafter taken to Westville Prison which was
overcrowded with other prisoners. The prison cells were dirty and
the toilets were uncleaned. The mattresses and bedding had bed
bugs. There were no bathing facilities;
(I) within the prison cells, there were criminal gangs who demanded
money from him. He was in fear for his life and had to get a
relative to send money by way of e -wallet so that he was given a
bed with clean sheets to sleep on;
(m) in respect of the charge against him, he denied having assaulted
the complainant and maintained that they only had an argument.
There was therefore no basis for her to have called the police or
have him arrested ;
(n) he lived in a closely knit community with the houses in the
neighbourhood in close proximity to each other. Various
community members and neighbours witnessed the police
arresting him .

[6] There being no appearance by the respondent , the appellant was
not subject to cross -examination and his evidence was unchallenged.

The judgment of the court a quo
[7] On 22 January 2024 , the court a quo dismissed the appellant 's
claim with costs on the following basis:
(a) The appellant had not adduced any evidence to support the
allegations in his particulars of claim that his arrest and detent ion
was unlawful;
(b) the only issue which was addressed in the heads of argument
furnished by the appellant 's legal representative was that of
quantum . No submissions were made in respect of liability ;
(c) that simply because there was an arrest and detention, it does not
follow that an arrest was unlawful ;
(d) on the appellant 's own version he had an altercation with his wife
and when the members of the SAPS came to arrest him, he was
advised that he had committed an act of domestic violence ;
(e) the appellant had failed to discharge the onus of proof which rested on
him;
(f) the arrest of the appellant was based on a reasonable suspicion
by members of the SAPS that he had committed an act of
domestic violence and therefore his arrest was lawful.

The issues before this court
[8] The following are issues for consideration in this appeal:
(a) whether the court a quo erred in finding that the arresting officers
acted rationally in arresting the appellant based purely on an
allegation that the appellant committed an act of domestic violence
against the complainant a day before the appellant's arrest;
(b) whether the court a quo erred in determining that the appellant
attracted the onus of proving that his arrest and detention was
unlawful;
(c) whether the appellant's arrest and detention was unlawful
based on the evidence and the pleadings before the court a quo;
(d) the costs of the appeal.

The appellant's submissions
[9] Mr Sewpal who appeared on behalf of the appellant submitted that
an arrest is prima facie wrongful and that the onus of proving the
justification for the arrest rests on the respondent. Additionally, Mr
Sewpal submitted that the respondent's plea was a bare denial and that
the respondent had not placed any evidence to prove justification as a
defence for the arrest. He submitted that any subsequent detention of
the appellant was also unlawful.

[10] It was submitted that all that the appellant was required to prove
was that he was arrested. Once he had proven that he had been
arrested, the respondent bore the onus to prove the lawfulness of the
arrest. The appellant relied on Mojahi v Minister of Police and Another1
where Yacoob, J stated that 'it is trite that the deprivation of liberty is
something that should only happen in exceptional circumstances. Once
the plaintiff has established that he was deprived of freedom, the onus
falls on the defendant to demonstrate that the deprivation, or arrest was
lawful.'

[11] Mr Sewpal submitted that in effecting an arrest following a
complaint of domestic violence, the police must act rationally. In casu, the
appellant's unchallenged evidence was that the police had received a
telephone call from the complainant on the evening of 23 September
2015. They then arrived at his home at 7h00 on 24 September 2015
which was more than seven hours after the complainant called them. Mr
Sewpal submitted that there was no justification to have effected the
arrest of the appellant without a warrant in circumstances where the
complainant was not in any imminent danger. He submitted that the
police ought to have investigated the complaint properly rather than
arresting the appellant without a warrant. Mr Sewpal submitted that the
appellant had discharged the onus to prove his unlawful arrest and
detention. He asserted that the court a quo erred in finding that there was
no evidence to support the appellant's claim of unlawful arrest.


1 Mojahi v Minister of Police and Another (2023] ZAGPJHC 835, para 31
[12] Mr Sewpal conceded that in the event that the appeal is upheld in
relation to the appellant's arrest and detention, then the issue of quantum
must be remitted to the court a quo for determination . He submitted that
should the appeal be upheld , then the respondent ought to pay the costs
of the appeal on a scale as between attorney and client, alternatively
scale B because of the manner in which the respondent litigated in the
court a quo , namely the plea was a bare denial and the non -appearance
by the respondent at the trial in the court a quo.

The respondent's s submissions
[13] Mr Khuzwayo , who appeared for the respondent submitted that
the judgment of the court a quo was 'less than ideal' as the appellant had
proven his arrest and detention in the court a quo . He effectively
conceded the appeal in respect of the respondent's liability for the
unlawful arrest and detention. Mr Khuzwayo submitted that the amount
sought by the appellant as damages was excessive. He agreed that the
matter ought to be remitted to the court a quo for determination of
quantum in respect of the appellant's claim for damages .

The law in relation to unlawful arrest and detention
[14] It is trite that an arrest constitutes an interference with a person's
liberty and it is therefore fair and just to require that the person who
arrested or caused the arrest should bear the onus of proving that the
arrest was justified in law.2The evidence by the appellant in the court a
quo was that he was informed by the police officers that he was being
arrested on a complaint of domestic violence. However , this was not
pleaded by the respondent in its plea which essentially constituted a
bare denial of both the arrest and detention.

[15] Section 40(1)(q) of the CPA provides :
'(1) A peace officer may without warrant arrest any person - ...
(q) who is reasonably suspected of having committed an act of

2 Minister of Law and Order and Others v Hurley and Anothe r 1986 (3) SA 568 (A) at 589 E - F
domestic vio lence as contemplated in section 1 of the
Domestic Violence Act , 1998 , and which constitutes an
offence in terms of any law. '
Section 1 of the Domestic Violence Act 116 of 1998 (the OVA) identifies
'physical abuse ' as an act of domestic violence, and defines it as 'an act
or a threatened act of physical violence towards the complainant, where
that conduct harms or may cause imminent harm to the complainant.'

[16] Section 3(2) of the OVA provides for a peace officer without a
warrant of arrest to effect an arrest 'at the scene of an incident of
domestic violence ' where he or she reasonably suspects that the person
has committed an offence, including violence against the complainant.

[17] It is clear that the acts of domestic violence, including 'physical
abuse ' referred to in the OVA are the offences referred to ins 40(1) (q) of
the CPA.

[18] In order for there to be an arrest without a warrant, and in
cases where it is alleged the arrest was unlawful , the following
jurisd ictional facts must be present3:
(a) the arrestor must be a peace officer ;
(b) the arrestor must entertain a suspicion;
(c) the suspicion must be that the arrestee committed an offence;
(d) the suspicion must rest on reasonable grounds.

[19] In the case of Duncan4, the court discussed the provisions of s
40(1)(b) of the CPA but the principles apply equally to s 40(1)( q) of the
CPA as both sections allow for arrest without a warrant. Once the
jurisdictional facts referred to above are established , the discretion of
whether or not to arrest the suspect arises .5 This discretion must be

3 Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818 G - H
4 Ibid
5 Ibid at 819 - 820
exercised in good faith , rationally and not arbitrarily6. In Lauw and
Another v Minister of Safety and Security and Others7, Bertelsman , J
held with reference to the right to personal liberty, that arresting officers
are under a constitutional obligation to consider whether there are no less
invasive options to bring the suspect to court than the drastic measure of
arrest.

[20] Consequently , it follows that a police officer must carefully weigh
the prevailing circumstances and a fair balance must be struck between
the reasons to arrest and the reasons for the suspect to retain his liberty
on the understanding that he will co­ operate with the investigation. The
arresting officer must therefore keep an open mind within the parameters
of the Constitution .8 The ar resting officer must analyse and assess the
quality of the information critically and must not accept it lightly . It is only
once this is done , that he may entertain a suspicion .9 Aside from
assessing the quality of the information available, the arresting officer
must consider whether there are other avenues open to securing an
appellant 's attendance at court . This must be done in a manner which is
consistent with the Constitution and only where there are no other
means to secure a suspect's attendance at court, must an arrest without
a warrant be effected .10

Application of the facts to the law
[21] The unchallenged evidence of the appellant in the court a quo, was
that he was advised by the arresting officers that he was being arrested
because of a telephonic complaint of domestic violence made by the
compla inant. From the said evidence and given the respondent 's plea of a
bare denial, I am left to infer that the arrest was made in terms of s

6 Naidoo v Minister of Police and Others 2016 (1) SACR 468 (SCA) , para 40
7 Louw and Another v Minister of Safety and Security and Others 2006 (2) SACR 178 (T) at
187 C - E
8 The Constitution of the Republic of South Africa , 1996
9 Mabona and Another v Minister of Law and Order and Othe rs 1988 (2) SA 654 (SE) at 658
E - H
10 Minister of Safety & Security v Sekhoto and Others [2010] ZASCA141 , paras 28 - 30; 2011
(5) SA 367 (SCA) , paras 28 - 30
40(1)( q) of the CPA given the appel lant's evidence that the arresting
officers received a complaint of domestic violence and were acting on
such complaint.

[22] It was the appellant 's unchallenged evidence that he left the
matrimonial home on the evening of 23 September 2015 after the
argument with the complainant. He returned at 7h00 on 24 September
2015 and w as asleep when members of the respondent arrived at his
home and placed him under arrest. Regard being had to the said
circumstances of his arrest , the appellant wa s not arrested at t he scene
at the time of the incident as envisaged in s 3(2) of the OVA . The scene
of the alleged incident would have been the night before his arrest ,
namely on 23 September 2015 . This would also mean that at the time of
his arres t, the complainant was not in any actual or imminent danger
given the lapse of over seven hours from the time the complaint would
have been received to the time of the arrest. There was, in my view,
therefore no rational basis for the arresting officer to have ar rested and
detained the appellant without a warrant. Applying the Louw and Sekhoto
decisions , the circumstances called for the arresting officers to
investigate the complaint and to satisfy themselves that there was no
other means of securing the appe llant's attendance at court before
effecting the arrest.

[23] It was undisputed that the appellant was detained until 28 September
2015. This is borne out by the police docket which forms part of the record.
The court a quo misdirected itself in holding that the appellant had not
discharged the onus of proving his arrest and detention. There was also no
basis for the court a quo to have found that the arrest of the appellant was
based on a reasonable suspicion by members of the SAPS that he had
committed an act of domestic violence, particularly in the absence of any
witnesses testifying that the complainant was in any immediate or imminent
danger. Furthermore, the appellant was not arrested at the scene of the
alleged domestic violence immediately after the complaint was made as he
was arrested more than seven hours after the complaint was received.
There was no evidence to the contrary and consequently the court a quo
materially misdirected itself in concluding that the appellant had not
discharged the onus of proving his arrest. The appeal must therefore
succeed on the issue of liability .

[24] With regard to the issue of quantum, both parties were in agreement
that the matter ought to be remitted to the court a quo for the determination
of quantum . The court a quo would be in a better position to hear the
appellant's evidence in support of his claim for the amount of damages he
seeks and for the respondent to challenge such evidence.

[25] The remaining issue is that of costs which must rightly follow the
result. Mr Sewpal submitted that the respondent ought to pay the costs of
the appeal on a punitive scale due to the manner in which the respondent
chose to litigate in the court a quo, alternatively on scale B. I am not
persuaded that this is a matter which warrants costs on a punitive scale. The
issues on appeal, in my view, were not of a complex nature to justify such an
award. Costs on a party and party basis on scale B is an appropriate order.

Order
[26] In the circumstances, I make the following order:
1. The appeal is upheld to the extent that the respondent is found liable
to compensate the appellant for damages arising from his unlawful
arrest and detention .
2. The matter is remitted to the court a quo for hearing and judgment in
respect of the quantum of the appellant's damages ari sing from his
unlawful arrest and detention .
3. The respondent is directed to pay the costs of the appeal, such party
and party costs are to be on scale B.

SINGH J


CASE INFORMATION


Date of Hearing
Date of Judgment
Counsel for the Appellant
Instructed by
















Counsel for the Respondent
Instructed by 24 January 2025
14 March 2025
Mr M Sewpal
Yacoob Meer & Company
Suite 82, 8th Floor
135 Musgrave Road Durban
Ref: Mr Bob Bahadur/RR/G1094MPD
Tel: 031 337 6733/9
Email: bahadur@ymclaw.co .za
admin@ymclaw.co.za
c/o Siva Chetty Attorneys
Suite 10, Block C, Second Floor Townbush
Office Park
460 Townbush Road
Montrose Pietermaritzburg
Ref: Mr T Chetty/Komesh/lAYM20
Tel: 033 342 9636



Mr T Khuzwayo
The Office of the State Attorney, KZN
6th Floor
Metropolitan Life Building
391 Anton Lembede Street Durban
Ref: 610/000642/15/G/P9
Email: LivGovender@jusitice .gov.za
Tel: 031 365 2561