IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION, PIETERMARITZBURG
APPEAL CASE NO. AR107/24
In the matter between:
THE MINISTER OF POLICE APPELLANT
and
JAIRA J JAGERROWER NIRGHIN RESPONDENT
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ORDER
___________________________________________________________________
On appeal from: Pietermaritzburg Regional Court (sitting as court of first instance ):
1. The appeal is upheld with costs on scale B .
2. The order of the court a quo is set aside and replaced with the following order :
‘The plaintiff’s claim is dismissed with costs.’
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JUDGMENT
________ ________________________________ ___________________________
Mathenjwa J (Olsen J concurring)
[1] The Minister of Police (appellant) appeals against the decision of the Regi onal
Magistrate (Mr S Paboe) handed down at the Pietermaritzburg Civil Regional Court
on 22 August 202 3 finding the appellant liable for the unlawful arrest and detention of
Mr Jairaj Nirghin (respondent) and award ing damages to the respondent .
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[2] The respondent instituted action in the court a quo claiming damages for
unlawful arrest and detention based on his arrest and detention by Warrant Officer
Khanyile (Khanyile) in the course of his employment with the appellant. The learned
Regional Magistrate found that:
(a) the respondent was wrongfully arrested instead of Mr A rchary who was his
son in law ;
(b) at the t ime of arrest there was no reasonable suspicion that the respondent
had committed an offence;
(c) it was highly unlikely that the respondent was pointed out by the complainant
to Khanyile ; and
(d) there was no case against the respondent hence the case was not even
enrolled in court.
[3] Khanyile testified that when he met with the complainant the case had
already been opened and a statement was taken from him by other members of his
unit. After taking over the investigation of the matter he approached the complainant
and interviewed him. The complainant explained to him that the respondent
damaged his motor vehicle . He accompanied the complainant to the respondent’s
house . Upon their arrival at the respondent’s ho use the complainant pointed out the
respondent to him as one of the suspects. He then proceeded to arrest the
respondent .
[4] Khanyile obtained a statement from the complainant’s wife, Mrs Navisha
Siverpershad who stated that on 31 October 2019 she went with the complainant to
the respondent’s house to enquire whether th e respondent knew about the
relationship between their granddaughter and the respondent’s grandson. An old
man from the respondent’s house came out of the gate , swore at them and chased
them away . About 30 minutes later the very same old man arrived with a group of
people at th e complainant’s house , swore at them and damaged the complainant’s
motor vehicle which was parked outside the gate of his house. Navisha informed
Khanyile that the suspect was her granddaughter’s friend ’s father Mr J Archary.
Under cross -examination by the respondent’s attorney , Khanyile stated that he
arrested the respondent because he was pointed out to him and he is an old man
who fitted the description of one of the suspects. In his statement Khanyile stated
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that on arrival at the respondent’s address th e complainant positively identified the
suspect to him , Mr J A rchary. Under cross -examination by the respondent ’s attorney
Khanyile explained that the complainant did not tell him that the person ’s name
whom he pointed out was A rchary, he pointed out the respondent as one of the
suspects. He explained that he confused the name of the suspect but not his identity.
[5] The respondent’s evidence was that Khanyile and the complainant arrived at
his house looking for S A rchary. He told them that A rchary was not in the house.
Khanyile entered all the rooms and searched for A rchary. When he did not find
Archary he told the respondent that he was arresting him. The respondent’s wife
brought the respondent’s identify document and showed it to Khanyile for him to see
that the respondent was no t Archary. However, despite having see n the
respondent’s identify document Khanyile told him that he believe d that the
respondent was the same person he was looking for , and arrested him.
[6] The issue for determination in this appeal is whether the decision of the court
a quo in finding that the respondent was unlawfully arrested and detained was
correct. A decision on the question as to whether the appellant was entitled to any of
the relief he sought is not reached unless we conclude that at the time of arrest
Khanyile did not have a reasonable suspicion that the respondent committed an
offence.
[7] Before us M s Moola for the appellant submitted that at the time Khanyile
arrested the respondent he had a reasonable suspicion that the respondent had
committed the offence . The respondent was positively identified to Khanyile by the
complainant. Ms Moola disputes that Khanyile did not have sufficient information
before him before arresting the respondent. She referred this court to an entry in the
investigation diary which shows that on 1 November 2019 Khanyile interviewed the
complainant and verified the damage to the complainant ‘s motor vehicle before
arresting the respondent on 3 November 2019 .
[8] Mr Marion for the respondent submitted that Khanyile wrongfully arrested the
respondent instead of Mr Archary whom he went to search for at the respondent’s
house. The argument stemmed from an entry made in the investigation diary on 31
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October 2019 where it was noted that the suspect was Mr J A rchary. It was
contended on behalf of the respondent that at the time of arrest Khanyile had no
facts before him justifying the arrest of the respondent because he got involved in
the investigation of the matter at a later stage , 3 November 2019, being the date
when he arrested the respondent. In support of the contention that there was no
case against the respondent, counsel referred to an entry made by the prosecutor in
the investigating diary on 4 November 2019 where it is recorded that there was
nothing linking the respondent to the offence and Khanyile was instruct ed to carry on
with further investigation, link the respondent to the offence and return the matter to
the prosecutor for a decision.
[9] It is common cause that t he respondent was arrested without a warrant. It is
trite that an arrest without a warrant is prima facie wrongful and it is incumbent upon
the appellant to justify its lawfulness.1 Section 40( 1)(b) of the Criminal Procedure
Act2 authorises a peace officer to arrest without warrant any person ‘whom he
reasonably suspects of having committed an offence referred to in Schedule 1’. The
jurisdictional facts which have to exist to justify an arrest without a warrant are: 3
‘(i) the arrestor must be a peace officer;
(ii) the arrestor must entertain a suspicion;
(iii) the suspicion must be that that the suspect (the arrestee) committed an
offence referred to in Schedule1; and
(iv) the suspicion must be based on reasonable grounds .’
The reasonableness of the suspicion is determined objectively.4 The suspicion must
be based on specific facts and trustworthy information,5 but need not necessarily be
based on certainty or adequate proof.6 The police office r is ‘merely required to have
regard to the facts and circumstances at his disposal, and, where reasonably
possible, to satisfy himself of the merit thereof ’.7 If, on a consideration thereof, there
are reasonable grounds to suspect that a n offence has been committed, he is
entitled to arrest the suspect without a warrant .8
1 Minister of Police v Gqamane [2023] ZASCA 61 para 16 .
2 Criminal Procedure Act 51 of 1977.
3 Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA) para 6.
4 Minister of Safety and Security and Another v Swart 2012 (2) SACR 226 (SCA) para 20.
5 Biyela v Minister of Police 2023 (1) SACR 235 (SCA) paras 34 -35.
6 Mananga and Others v Minister of Police 2021 (2) SACR 225 (SCA) para 8.
7 Ibid para 16.
8 Ibid.
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[10] I do not agree with the contention of respondent’s counsel that the mere fact
that Khanyile took over the investigation of the mater later on resulted in him lacking
sufficient information and facts to arrest the respondent. Khanyile had stated that he
worked as a team with other police office rs and members of his crew who initially
interviewed and obtained the complainant’s first statement. Before effecting the
arrest Khanyile had interviewed the complai nant, verified the damage to the
complainant’s motor vehicle, and went with the complaint to the respondent’s house
where the complainant positively pointed out the respondent to him as one of the
suspects who damag ed his motor vehicle . Therefore, the jurisdictional facts justifying
the arrest of the respondent without a warrant existed at the time Khanyile arrested
him.
[11] In my view the court a quo misdirected itself in finding that Khanyile arrested
the wrong person (the respondent) instead of Mr A rchary whom he came to arrest at
the respondent’s house . In his examination in chief, Khanyile stated that he confused
the name of the respondent, however he took the complainant with him to point out
the respondent to him because he did not know him. Khanyile explained that
although he had confused the respondent’s name he did not confuse his identity . On
31 October 2019 when the complainant laid the complaint an entry was made in the
investigation diary that the suspect was Mr J A rchary. Both entries regarding the
name of the suspect in Kha nyile’s statement and investigation diary was incorrect
because there was no person by the name of J A rchary, in fact the respondent’s
son- in -law was S A rchary. Therefore, it is clear that even though the respondent’s
name was not known to the complainant at the time of arrest , he was nevertheless
positively identified by the complainant . Furthermore, the respondent’s description
fitted the description given by the complainant’s wife that an old man was one of the
suspect s. Therefore, Khanyile’s suspicion that the respondent committed the offence
was based on reasonable ground s.
[12] Furthermore, the court a quo’s finding that “ the plaintiff’s request to produce
his identity document to show that he was not his son -in- law fell on deaf ears ” is not
supported by the evidence that was led before the court . On the contrary t he record
shows that the respondent’s wife showed his identity document to Khanyile and after
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looking at the identity document Khanyile said that he was still arresting the
respondent . My conclusion in this regard is supported by the respondent ’s evidence
in chief when he stated that when he enquired from Khanyile why he was arresting
him even after he had confirm ed that he was not Mr A rchary whom he was looking
for, Khanyile acknowledged that he was looking for Archary but beli eved that the
respondent was the same person he was looking for . Therefore, it is not correct that
Khanyile did not look at the respondent’s identity document ; he did, but neverthe less
entertained a suspicion that the respondent was the same person who was the
suspect in the commission of the offence.
[13] The court a quo misdirected itself in finding that it was highly unlikely that the
respondent was pointed out to the police by the complainant . Khanyile’s evidence
that the respondent was pointed out to him by the complainant was not disputed.
When the respondent testified in court he did not dispute that the compl ainant
pointed him out to Khanyile . Instead he corroborate d Khanyile’s evidence to the
extent that he accepted that the complainant was present at the respondent’s
premises when he was arrested. During the court ’s re-examination of the respondent
the issue of the pointing out of the respondent to Khanyile was never brought up.
[14] Respondent’s counsel relied on the entry made by the prosecutor in the
investigating diary in support of his submission that the court a quo was correct in
finding that there was no case against the respondent. On 4 November 2019 the
prosecutor made an entry in the investigation diary stating that there was nothing
linking the respondent to the offence and instructing Khanyile to conduct further
investigation and submit the case for a decision. However, the appellant’s counsel
referred to another entry made in the investigation diary on 27 March 2020 at 08h30
where it is recorded as follows: ‘Docket for court. Complainant and suspect wish to
mediate the matter at court ’. The respondent misconstrues the nature of the inquiry .
It is not required of a police officer to be certain that the accused will be successfully
prosecuted . He is merely required to ent ertain a suspicion based on reasonable
ground s that the accused committed the offence .
[15] Although it is not clear how the matter was settled between the parties., i t is
clear from the investigation diary that it is not correct that the matter was not enrolled
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since on 27 March 2020 the case was due to be heard in court but was settled
between the parties. The entries in the investigation diary w ere not brought to the
attention of the learned Regional Magistrate.
[16] The issue is not whether the arresting officer was certain that the respondent
would be successfully prosecuted it is whether a reasonable police officer who had
the same facts at his disposal would have suspected the respondent of committing
the offence and placed him under arrest. No evidence was led in the court a quo
about the merits of the matter, therefore the court erred in making the finding that
there was no case against the respondent. Therefore, the court a quo was wrong in
its findings .
Order
[17] The following order is made :
1. The appeal is upheld with costs on scale B .
2. The order of the court aquo is set aside and replaced with the following
order :
‘The plaintiff’s claim is dismissed with costs.’
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Mathenjwa J
I agree.
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Olsen J
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Appearances
Applicant ’s counsel: S Moola
Instructed by: State Attorney
KwaZulu - Natal
Responden t’s counsel: M Marion
Instructed by: Anthoo, Marion and Associates
Pietermaritzburg
Date of hearing: 14 February 202 5
Date of judgment: 25 April 2025