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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
Case n o: 3571/2022
In the matter between:
THINA DUKADA Plaintiff
and
MINISTER OF POLICE Defendant
JUDGMENT
DAWOOD ADJP:
Introduction
[1] The plaintiff herein sued the defendant for damages arising out of an alleged
unlawful arrest and detention on a charge of rape.
[2] It is common cause that the plaintiff was arrested without a warrant and
accordingly the onus rests upon the defendant to establish that the arrest was
lawful .
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Defendant ’s case
[3] The defendant called the arresting officer Xolisa Ginya as its only witness to
testify. His testimony was inter alia briefly as foll ows:
(i) that a case of rape was opened by the victim’s mother at the charge
office.
(ii) He was given the docket and was present when a statement was taken
from the victim and at a later stage from her friend.
(iii) That the victim identified the alleged perpetrator to them, and she had
identified him to her fri end and mother as well.
(iv) In the J88 however when the doctor recounted what was told to him , he
recorded that the alleged perpetrator is an unknown black male.
(v) The victim told him she knew where the perpetrator resided and took
them to the plaintiff’s reside nce and pointed him out to them.
(vi) The victim and the alleged perpetrator (being the plaintiff herein) knew
each other as the alleged perpetrator was her teacher.
(vii) The victim di d not report the incident immediately as she stated that
she was fearing for her life and was scared to report this because the
perpetrator was a teacher. It was only when she attempted to commit
suicide that she told her mother about the incident which res ulted in the
report being made.
(viii) The plaintiff was apparently uncooperative when they arrived at his
place and only cooperated after they had sought the intervention of his
brother.
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(ix) The plaintiff asked the complainant whether she was the one that had
laid c harges against him, and they intervened as he was abusing the
victim at that stage. They informed him that she was the one, but he
must not say anything to the victim.
(x) The accused was warned of his rights and was taken to the police cells
and charged so th at he could appear in court the next day.
(xi) The accused was taken to court the following day and released from
custody , with a note on the file reflecting no prospects of a successful
prosecution.
(xii) According to him, the J88 confirmed penetration, and he was satisfied
regarding the identification of the alleged perpetrator who was pointed
out to him by the victim.
(xiii) Under cross -examination he was questioned regarding the J88 where
there was no mention made of the word ‘penetration’ by the doctor
himself. The J88 reflects that the vagina was intact but that the hymen
was perforated, and the doctor also reflected that he was unable to
examine the cervix .
(xiv) The J88 also reflects that she was sexually assaulted by an unknown
person who pushed the door whilst she was in the bathroom . He stated
that he did not know how that happened as the victim’s statement was
taken prior to the J88 being completed and she had identified her
assailant.
(xv) It was also put to him that the friend’s version was different from the
complainant. Paragraph 4 of the friend’s statement stated that “she
was called by the man and told that the y must get into the toilet, they
both entered the toilet” whereas the victim’s state ment was that she
went alone t he toilet while she was relieving herself the plaintiff arrived.
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(xvi) His response was that both statements confirm that it occurred without
her consent despite the differences.
(xvii) He denied that it was necessary for him to approach the Senior Public
Prosecutor for a decision or obtain a warrant in the circumstances as
he had enough evidence to arrest and was satisfied that he had
sufficient evidence that constituted a reasonable basis for him to arrest.
(xviii) Under re -exam he confirmed tha t the victim and her friend indicated
that the sexual assault took place without the consent of the victim.
(xix) That concluded the defendant’s case.
Plaintiff ’s case
[4] The plaintiff thereafter testified inter alia :
(a) That he is 28 years of age.
(b) That he studied Bachelor of Education at Walter Sisulu University and
that he is currently unemployed.
(c) That on the date of the alleged incident, 16 December 2021 he was at
a function at a friend’s home from 4pm until very late. He saw the
victim and her friends there as well.
(d) The victim was a student of his, so they were known to each other.
(e) She and her friends had merely greeted him, but they had not spoken
to each other.
(f) He was arrested on the 22 June 2022, and it was suggested that he
had committed rape, and he was taken to a vehicle. The child (the
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victim) was dropped o ff first and he was then taken to the police
station.
(g) He was charged and his fingerprints and saliva taken and he was
placed in a cell with many people. There were no beds to sleep on and
the cells smelt, there were people smoking in the cells and there were
lice. The cell was 15 X 15 m ² and there were in total about 55 people
detained in that cell.
(h) He managed being given a corner in that cell and he slept in that
corner, he thereafter changed his evidence to say he sat there. He did
not eat breakfast and there were only 2 blankets there. He was sitting
on the floor.
(i) He was taken to court the next day and stayed i n the cells at court until
3 or 4 pm whereafter he was called and told to go home. He was not
sure if he could be arrested again, and this emotionally abused him.
(j) The people in the locality see him as a rapist and he cannot even apply
for a job because his fingerprints are there, and they tell him that that is
a bad thing saying he has a criminal record when he tried to apply for
an assistant teacher’s post.
(k) He wanted the court to clear his fingerprints so that he does not have a
bad criminal record and that he be compensated because he has this
hard time that he does not have work.
(l) Under cross -examinatio n:
(i) he confirmed that he knew the complainant as a grade 8 student in
his class as she was part of the noisy corner although he did not know
her name.
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(ii) he conceded that he had seen her amongst her classmates at the
function on the day of the alleged incident .
(iii) he testified that he did not talk to them.
(iv) he conceded that there were no disagreements between them.
(v) he denied the complainant’s version that he had raped her.
(vi) he initially stated that the police did not ask him to make a
stateme nt despite the arresting officer saying that he had asked him if
he wanted to make a statement, and he refused. He then stated that he
could not recall.
(vii) He stated that the arrest ing officer had asked him if he wanted an
attorney, and he called his brother.
(viii) He stated that he did tell the police that he did not know what had
happened and he was confused and that is why he was confused when
it was put to him that he did not disp ute the allegations in the presence
of the victim when he arrived at the vehicle.
(m) That concluded the plaintiff’s case.
Issue for determination
[5] The only issue to be determined is the lawfulness or otherwise of the arrest
and detention of the plaintiff .
[6] Legal position
(a) The provisions of section 40(1) (b) of the Criminal Procedure Act 51 of
1977 (‘CPA’) is relevant in this case . A peace officer may arrest a person without a
warrant where the officer reasonably suspects that the person in question has
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committed an offence in terms of Schedule 1 of the Criminal Procedure Act . Before
an officer can exercise such a power, however, the necessary jurisdictional facts
must exist.1
(b) The meaning of ‘ reasonable grounds’ was considered in R v Van
Heerden ,2 where Galgut AJ held that the term must be interpreted objectively, and
the grounds must be those that would induce a reasonable person to have a
suspicion.
(c) This was explored further in Mabona and another v Minister of Law and Order
and others ,3 where Jones J co nfirmed that the test for whether a suspicion is
reasonably entertained is objective. He stated as follows:
‘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 plaintiffs were 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 reasonable man would bear in
mind that th e section authorizes drastic police action. It authorizes 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 w ill 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 enterta in a suspicion which will justify an arrest.
This is not to say that the information at his disposal must be of sufficiently high
1 Minister of Safety and Security v Sekhoto 2011 (5) SA 367 (SCA).
The court referring to Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G -H restated :
“The so -called jurisdictional facts which must exist before the power conferred by s 40 (1) ( b)
of the present Act may be invoked, are as follows:
(1) The arrestor must be a peace officer.
(2) He must entertain a suspicion.
(3) It must be a suspicion that the arrestee committed an offenc e referred to in Schedule 1
to the Act (other than one particular offence).
(4) That suspicion must rest on reasonable grounds.”
2 [1958] 3 All SA 125 (T) .
3 [1988] 3 A ll SA 408 (SE).
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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.’ 4
(d) In Biyela v Minister of Police ,5 the Supreme Court of Appeal, per Musi AJA, held
as follows:
“The question whether a peace officer reasonably suspects a person of having
committed an offence within the ambit of s 40(1 )(b) is objectively justiciable. It
must, at the outset, be emphasized that the suspicion need not be based on
information that would subsequently be admissible in a court of law.
The standard of a reasonable suspicion is very low. The reasonable suspicion
must be more than a hunch; it should not be an unparticularized suspicion. It
must be based on specific and articulable facts o r information. Whether the
suspicion was reasonable, under the prevailing circumstances, is determined
objectively.
What is required is that the arresting officer must form a reasonable suspicion
that a Schedule 1 offence has been committed , based on credi ble and
trustworthy information. Whether that information would later, in a court of law,
be found to be inadmissible is neither here nor there for the determination of
whether the arresting officer at the time of arrest harboured a reasonable
suspicion th at the arrested person committed a Schedule 1 offence.
(e) In Sekhoto ,6 the Supreme Court of Appeal, per Harms DP, observed that the
officer is entitled to exercise such a discretion as he or she deems fit, provided that
he or she stays within the bounds of rationality. The court at paragraph 44 remark ed
as follows:
‘While the purpose of arrest is to bring the suspect to trial the arrestor has a
limited role in that process. He or she is not called upon to determine whether
4 Ibid at 410-11. The court also referred to S v Nel an d another 1980 (4) SA 28 (E).
5 2023 (1) SACR 235 (SCA) at paras 33 -5.
6 Sekhoto (note 1 above) at para 44 .
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the suspect ought to be detained pending a trial. That is the role of the court…
The purpose of the arrest is no more than to bring the suspect before the
court… so as to enable that role to be performed. It seems to me to follow that
the enquiry to be made by the peace officer is not how best to bring the suspect
to trial: the enquiry is only wheth er the case is one in which that decision ought
properly to be made by a court… Whether his decision on that question is
rational naturally depends upon the particular facts but it is clear that in cases of
serious crime - and those listed in Schedule 1 are serious, not only because the
Legislature thought so - a peace officer could seldom be criticized for arresting a
suspect for that purpose. On the other hand, there will be cases, particularly
where the suspected offence is relatively trivial, where the ci rcumstances are
such that it would clearly be irrational to arrest. ’
Evaluation of the evidence presented
[7] It is evident from the testimony of the arresting officer particularly during
cross -examination by the plaint iff’s counsel that there were discrepancies between
the J88, the victim’s statement and that of her friend. However, both the victim and
her friend identified the plaintiff . The plaintiff himself not only confirmed that he was
known to the victim but that he was at the same function as the victim until late on
the night of the incident. The plaintiff was well known to the victim as he was her
teacher .
[8] The question is whether despite these discrepancies a reasonable officer in
the position of the arresting officer would nonetheless have formed a reasonable
suspicion that the plaintiff had committed the offence. The reasonable officer would
analyse and assess the quality of the information at his disposal, and he will not
lightly accept it without c hecking it whe n 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. While the section requires suspicion and not real evidence, it is
required that the suspicion be based on a solid ground. Otherwise, it will be flighty or
arbitrary, and not a reasonable suspicion.
[9] In this case it is evident:
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(a) That the victim identified the plaintiff as the perpetrator in the arresting officer’s
presence .
(b) That her friend also informed them in his presence that the victim had identified
the plaintiff as the perpetrator to her.
(c) That the complainant, being the mother in her statement had indicated that the
victim had told her that the plaintiff was the perpetrator .
(d) The victim pointed out the plaintiff as the p erpetrator .
(e) The plaintiff confirmed that the victim knew him and that she had pointed him out
to the police and was present with the police when he was arrested.
(f) The J88 is the only document where it is recorded that the perpetrator is
unknown.
[10] The discrepancy would not in itself detract from the suspicion being
considered a reasonable one in circumstances where the victim without hesitation
points out the perpetrator when called upon to do so and makes the statement
identif ying the plaintiff as the perpetrator prior to the J88 being taken and
subsequently points out the plaintiff as the perpetrator after the J88 is taken. The
discrepancy should have been qu eried but the fact that the arresting officer did not
do so prior to the plaintiff’s arrest does not render his arrest unlawful nor does it
negate the identification of the plaintiff by the victim as the perpetrator. The
discrepancy between the victim and her friend also does not detract from the fact
that both confirm that it was not consensual. These issues could have been dealt
with in the course of further investigations by consulting with the doctor and perhaps
the prosecutor could have spoken to the victim and questioned her about the
discrepancies.
[11] These discrepancies would not lead to a reasonable officer doubting that a
crime had been perpetrated by the plaintiff , nor would it detract from him forming a
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reasonable suspicion that the plaintiff had committed an offence particularly not in
the face of the victim pointing out the perpetra tor and confirming how she knew him.
She not only knew him but knew where he lived, and the plaintiff confirmed he knew
her and even spoke to her when he was arrested.
[12] The arresting officer would have been remiss in his duties, as he stated, if he
did not in those circumstances arrest and detain the plaintiff , particularly for such a
serious offence as rape in circumstances where the victim was suicidal and
unequivocally identified the perpetrator who was someone that was known to her.
[13] Objectively viewed, another officer in the position of the arresting officer would
indeed have arrested the plaintiff in circumstances where there was a positive
identification by the victim of the plaintiff and a pointing out of the plaintiff as the
perpetrator . The purpose of the arrest by the arresting officer was clearly to bring the
plaintiff to court which he did the very next day. It was for the court to determine what
was to happen to the plaintiff thereafter.
[14] The defendant has accordingly established that the arrest and detention by
the arresting officer was lawful. His decision to arrest was, as illustrated, based on
ration al grounds and was justified in the circumstances. He was a frank and honest
witness. He is found to be credible and good witness whose version is accepted as
the correct one where there are discrepancies between his version and that of the
plaintiff.
[15] The plaintiff was not frivolous in p ursuing his claim based on an alleged
infringement of his constitutional ly entrenched rights. The Biowatch7 principle
regarding costs is applicable in this case which provides in essence that the plaintiff
in such circumstances should not be liable for costs. It would be unjust in the
circumstances of this case to allow costs to follow the result by mulcting the plaintiff
with costs.
[16] In the circumstance s the following order is made:
7 Biowatch Trust v Registrar , Genetic Resources , and Others 2009 (6) SA 232 (CC ); 2009 ( 10) BCLR
1014 (CC) .
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(i) The plaintiff’s cl aim is dismissed .
(ii) There is no order as to costs.
______________________ _______
FBA DAWOOD
ACTING DEPUTY JUDGE PRESIDENT
Appearances
For the Plaintiff: Adv Z.A Mqokozo
Instructed by: Ayanda Zozi Attorneys
70 Cumberland Street
MTHATHA
For the Defendant: Adv M.N Gumede
Instructed by: The State Attorney
94 Sisson Street
MTHATHA
Date heard 26 November 2024
Date delivered ` 27 February 2025