IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO. CA 29/2024
NOT REPORTABLE
In the matter between:
ALLISTAIR SOLOMON First Appellant
FRANKLIN AFRICA Second Appellant
GEORGE PLAATJIES Third Appellant
GERALDINE PRIN CE (N.O.) Fourth Appellant
AMBRAAL NORKIE Fifth Appellant
GERWIN RADEMEYER Sixth Appellant
and
MINISTER OF POLICE Respondent
APPEAL JUDGMENT
HARTLE J
[1] This appeal before us concerns the arrest of the appellants late on the night of
15 November 2017 at a home in Gelvandale, Gqeberha, and their detention
thereafter for a period of twelve days.
[2] In a prelude to the arrest , the South African Police Service had broadcast over
the radio a report concerning a blue Golf motor vehicle that had been highjacked in
the Kab ega Park patrol area earlier that evening . It came to the attention of the
arresting officer, Constable Naidoo , and his colleague , Sergean t Oosthuizen, both of
the “ K9” unit , who heard it shortly after they reported for duty that night . A full
description of the motor vehicle was circulated as well as its registration details and
some background information regarding the incident, especially that the hijacking
had just recently happened and that the complainant had been dropped off at the
Malabar cemetery . Later, at around 22h00, t hey received a tip off of a motor vehicle
matching the description of the hijacked vehicle being stripped at a given address in
Gelvand ale, which turned out to be the home of the 6th appellant from where he runs
a mechanical workshop.
[3] A visit to the latter’s home shortly after receiving the information turned up the
stolen motor vehicle (verified by VIN number) that was , true to the information
shared , in the process of being stripped by the appellants and one other party, Mr.
Agherdien , in the workshop. O n the version of the police, the seven persons
encountered in the workshop gave no account to the officer s for the ir constructive
possession of the positively identified stolen motor vehicle , or concerning the
presence of a “firearm ” (together with four rounds of ammunition) found in the engine
compartment of a Fiat Palio motor vehicle that was standing adjacent to the stolen
motor vehicle in the workshop, or for the fact that the numberplates of the Fiat Palio
motor vehicle (also as per immediate verification obtained from the SAPS Central
Database) were affixed to the stolen motor vehicle and those of the latter destroyed
and ostensibly hidden from plain sight under neath the Golf.
[4] Additionally, the police officers retrieved door panels patently stripped from the
stolen Golf as well as a flat screen television inside a Bantam “ bakkie ” parked
outside the 6th appellant’s premise s. The officers established that the Bantam
Bakkie had been driven there by one Mr. A gherdien and belonged to the latter’s
father . The keys to the Golf were also found in the Bantam .
[5] The appellants were arrested together with Mr. Agherdien on charges of being
in possession of suspected stolen property and possibly an unlicensed firearm. As
an aside, it was confirmed after the fact by ballistic testing that the “firearm ” found in
the engine compartment of the Palio was a gas pistol which , according to section 5
of the Firearms Control Act , No. 60 of 2000, is not a “firearm ” as defined in the Act.1
I will return to this aspect later .
[6] The appellants together with Mr. Agherdien were detain ed subsequent to the ir
arrest at the G elvandale Police Station until 20 November 2017 when they made
their first appearance in the Magistrate’s Court . Except for Mr. Agherdien, t hey were
released on bail of R500 each a week later on 27 November 2017. The charges
against the appellants were withdrawn on 6 June 2018.2
[7] The appellant s sought to vin dicate the ir experience of the arrest and det ention
by institut ing an action for damages against the respondent in the Gqeberha
Regional Court.
[8] At the hearing of the action the respondent led the testimony of the two
officers, Naidoo and Oosthuizen, who had responde d to the complaint and carried
out the arrest of the appellants and Mr. Agherdien at the 6th appellant’s workshop .
Their evidence was intended to satisfy the onus resting on the Police to justify the
arrest on the pleaded basis, namely that they were lawfully arrested in terms of
section 40 (1)(e) of the C riminal Procedure Act, No. 51 of 1977 (“ CPA”) on a charge
of possession of suspected stolen property and, in terms of sectio n 40 (1) (h) of the
CPA, also reasonably suspected of having committed an offence “ under a law
1 The definition of a “ firearm” is referenced in section 1 of the Act.
2 The fact of the prosecution not having been pursued is not of relevance . The appellants’ claim was
confined to one based on unlawful arrest and detention.
governing the possession of arms or ammunition ”.3 Further pleaded is that the
Police, by so arresting them, intended to bring them to justice , and that their decision
to have done so “fell within the bounds of rationality ”.
[9] The respondent also called one Constable D iniso from the organized crime
unit in Gqeberha who on the ensuing Friday, 17 November 2017 , was assigned the
investigation of the matte r including the charge of robbery relating to the hijacking .
Her testimony was intended to satisfy the further onus on the Police to justify that the
detention of the appellants , an expected incident of their arrest , was entirely lawful in
the circumstances.
[10] Co-incidentally t he case which the respondent was expected to answer to
concerning the basis for the claimed unlawful detention was , for the first part, that
after the appellants’ arrest without a warrant, they were “detained arbitrarily without
just cause ” at the Gelvandale P olice Station on the supposed charges. In this
respect it was alleged that the police officers there failed to apply their minds in
respect of their detention and the circumstances relating thereto ; there were no
reasonable and objective grounds justifying their detention ; they were not informed
of their rights to institute bail proceedings ; and they were only taken to court o n 20
November 2017 whereas they could and should have been formally charged and
taken to court on Thursday , 16 November 2017, alternatively on Friday, 17
November 2017 , by the latest. It was pleaded in the last respect that the appellants
were not brought before a court of law “ as soon as reasonably possible ”.
3 The relevant statutory authority relied upon for the arrest is reproduced below:
“40. Arrest by peace officer without warrant
(1) A peace officer may without warrant arrest any person —
(a) …;
(b) …;
(c) …;
(d) …;
(e) who is found in possession of anything which the peace officer reasonably
suspects to be stolen property or property dishonestly obtained, and whom the
peace officer reasonably suspects of having committed an offence with respect
to such thing;
(f) …;
(g) …;
(h) who is reasonably suspected of committing or of having committed an offence
under any law governing the making, supply, possession or conveyance of
intoxicating liquor or of dependence -producing drugs or the possession or
disposal of arms or ammunit ion; …”
[11] For the second part, the pleaded challenge is that the investigating officer
failed in (his) duty towards them to properly investigate the alleged crime and to
bring to the attention of the prosecut or and the magistrate right from the first court
appearance information that was relevant to the exercise by the magistrate of his
discretion , manifest ed by the fact that the arresting officer/investigating officer failed
at that juncture to convey “ extremely crucial information ” to the prosecutor that Mr.
Agherdien admitted that the illegal firearm and vehicle belonged to him. Pleaded in
this regard is that this failure on the part of the officers to disclose and to discharge
their public duties conduced to the magistrate ordering the appellants’ continued
detention until 27 November 2017 when they were granted bail on an unopposed
basis and the fact ther eanent that they were remanded in custody to St Albans
prison in this interlude.
[12] The premise for the judicial review of the Police’s conduct in purportedly
unreasonably precluding the possibility of the appellants’ earlier release on bail is the
peremptory provision in section 50 (1) of the CPA that arrestees in their position are
to be brought before a lower court “as soon as reasonabl y possible ”, but not later
than 48 h ours after the arrest . The purpose for this imperative must be read together
with section 35 (1) (d) and (e) of the Constitution which provides that “(e) veryone who
is arrested for allegedly committing an offence has the right …to be brought before a
court as soon as reasonably possible, but not later than …48 hours after the
arrest…and…to be released from detention if the interests of justice permit, subject
to reasonable conditions ”.
[13] Ms. Du Toit , who appeared for the appellants, clarified that it was not
suggested by th is allegation in the ir particulars of claim that the Police had exceeded
the outer limit of the 48 hours. (Although the appellants were arrested on a week
night the period would have expired outside ordinary court hours that night . Thus,
they were obliged to be brought to court not later than “ the end of the first court day ”,
meaning the ensuing Monday , which they were. )4 Rather she asserted that they had
been “ negligent ” (she discounted the notion of any malice) in not bringing the
4 See section 50 (1)(d)(i) and (2), read together with sub-section ( 6) (b) of the CPA .
appellants before court earlier because there was no reason advanced in the
evidence to preclude their having been processed and taken to court on the morning
after their arrest already .
[14] The respondent in his plea had relied on the provisions of section s 39 and 50
of the CPA as a justification for the appellants’ detention . Section 39 (3) of the CPA
assert s in broad terms that the effect of an arrest is that a person is in lawful custody
until he/she is lawfully released from custody.5 Whilst section 39 (3) of the CPA
provides for the “ continuity of the lawfulness of the detention of a suspect ”, its
provision must of necessity be read in the context of those provisions of the CPA
which provide for the release of a suspect from detention.6
[15] Section 50 of the CPA , which is the statutory justification the respondent
relied upon in his plea , provides in extensive detail for the procedure after the arrest
of a person , whether with or without a warrant . It straddles the period of his/her
sojourn through the portals of the criminal justice system from the first moment of
arrest from whence he/she is categorized as a person “who has been arrested for
allegedly committing an offence ”, with the focus being on the minimum permissible
infringements of such a person’s right to liberty as contemplated by the section, and
the regular incidents of the process that are inclined to justify the continued detention
expected to flow as a necessary consequence of an arrest .
[16] So, for example, a person in the position of the appellants would have to be
brought as soon as possible to a police station, and consonant with the fact of their
detention at the police station under such circumstances, as soon as reasonably
possible be informed of their right to institute bail proceedings. If they are not
charged, or police or prosecutorial bail is not granted to them,7 then the next
objective is to ensure that they are brought before the lower court as soon as
reasonably possible but not later than 48 hours after their arrest . The section
provides , as a final option as it were , for a judicial determination of the arrested
5 This subsection provides regarding the manner and effect of arrest that “ The effect of an arrest shall
be that the person arrested shall be in lawful custody and that he shall be detained in custody until he
is lawfully discharged or released from custody .”
6 Syce & Another v Minister of Police [2024] 2 All SA 662 (SCA) at para [42)
7 Sections 59 and 59A of the CPA apply respectively.
person’s right to be released on bail if, by reason of the category of offence with
which they are charged , they cannot be granted police or prosecutorial bail before
their first appearance in court , or they are not otherwise permitted by the provisions
of the CPA or any other law to be released from detention on warning or on a written
notice to appear in court.
[17] Certain safeguards kick in at the first court appearance in the lower court for
such a person who has been arrested for allegedly committing an offence . Here
they must be informed by the court of the reason for their further detention or be
charged and are then entitled to be released on bail subject to the provisions of
section 60 of the CPA . The latter provision in turn provides for the release of the
arrestee on bail if the interests of justice so permit .8 If they are not so charged or
informed of the reason for their further detention, they must be released.
[18] The bail application of a person who is charged with an offence in terms of
Schedule 6 must be considered , in the sense of being judicially determined, by a
lower court , if not by a regional court as suits the occasion where the proviso
applies.9
[19] The lower court before which a person who was arrested for allegedly
committing an offence appears is authorized to postpone any bail proceedings or
application to any date or court, for a period not exceeding seven days at a time, on
terms which it may deem proper and which are not inconsistent with any provisions
of the CPA if it is of the opinion that it has insufficient information or evidence at its
disposal to reach a decision on that application ; or the prosecutor informs it that the
matter has been or is going to be referred to an Attorney -General for the issuing of a
written confirmation referred to in section 60 (11 A);10 it appears to the court that it is
necessary to provide the State with a reasonable opportunity to procure material
8 Section 60 (1) (a) of the CPA provides that an accused who is in custody in respect of an offence
shall, subject to the provisions of section 50 (6), be entitled to be released on bail at any stage
preceding his or her conviction in respect of such offence, if the court is satisfied that the interests of
justice so permi t. The test is different where a Schedule 6 or 5 offence is concerned. See section 60
(11) of the CPA.
9 See section 50 (6)(c) of the CPA.
10 This is the unique procedure that applies where the category of offence entails a Schedule 5 or 6
offence.
eviden ce that may be lost if bail is granted or perform the functions referred to in
section 37 ;11 or it appears to the court that it is necessary in the interests of justice to
do so .
[20] The respondent pleaded that after the y were brought to the lower court on 20
November 2017, the Magistrate had issued a detention order in terms of section 50
(1) of the CPA pursuant to which they were remanded in custody to the St Alban’s
Correctional Facility in Gqeberha and that their detent ion on each occasion on which
they appeared in court subsequently thereto also occurred pursuant to orders
issued by and at the instance of the presiding magistrate(s). This plea is consistent
with the respondent’s contention that their detention until t heir release and because
of the orders of court occurred in terms of “ a due process of law ”.
[21] Although the respondent’s plea on the face of it does not speak pertinently to
the complaint that the Police failed to bring the appellants before the lower court “as
soon as reasonably possible ” (it is to be noted though that the particulars of claim do
not aver what was instead reasonably possible for the Police to have done under the
relevant circumstances) , it broadly asserts , again with regard to section 39 (3) and
50 of the CPA that the Police acted within the constraints of what the law permits or
provides , for their part in the process of bringing a person who has allegedly
committed an offence to court , in respect of the appellants’ continuing detention.
[22] In her testimony at the trial, in brief, Constable Diniso explained that she had
taken charge of the investigation on 17 November 2017 around midday although she
conceded that the appellants had been arrested on the Wednesday night at 23h00
already . She was assisted by a colleague to take warning statements from the m and
Mr. Agherdien , the suspects numbering seven in total .
[23] She could not say what happened on the 16th although she was inclined to
agree , with reference to documentary evidence held up to her in the docket , that
touch DNA had been obtained on that day .
11 Section 37 of the CPA provides for the taking of fingerprints, palm -prints, footprints , the drawing of
blood samples, attendance at a n identity parade and the taking of photographs.
[24] The founding statements of Constable Naidoo and Sergeant Oosthuizen
regarding what they had encountered on the night of the 15th and conflicting warning
statements by the suspects satisfied her that it had been necessary for the Police to
oppose bail as a first inclination in order to investigate further . Even though some of
the suspects during questioning at the police station mentioned that the Golf was
brought to the workshop by Mr. Agherdien and that the firearm was his, the
statement s did not tally. Mr. Agherdien himself, for example , claimed that one Kiddo
had brought the vehicle directly to the workshop where he was to check it before
acquiring it from the latter by way of purchase. The 5th appellant by contrast said that
Kiddo and Mr. Agherdien had together brought the Golf to the workshop . One of the
other appellants implicated two other unidentified persons who had come to the
workshop in the company of Mr. Agherdien earlier that evening .
[25] Constable Diniso testified that she had been present at court on the 20th when
the appellants were brought to court for the first time. She discussed the case with
the prosecutors and responsibly conveyed the import of the matter to both of them
concerned. She reconciled herself to their decision to oppose bail. The suspects
were all legally represented and did not argue against the necessity to postpone the
matter for a period of one week for a formal bail application.12
[26] She denied the averment pleaded in the particulars of claim that the Police
withheld crucial information fr om the prosecutors to the effect that Mr. Agherdien
had supposedly admitted that the firearm and Golf belonged to him. To the contrary,
she pointed out that he had not owned up in his warning statement to the fact that he
was the owner of the firearm.13
[27] As for the further investigation she considered necessary, she wanted Mr
Agherdi en to point out Kiddo who in her estimation would have had the stolen Golf in
his hands earlier the same day. Mr Agherdien had informed her that he could not
12 It appears from the record of proceedings on this date that the 1st, 3rd and 5th appellants at least
were noted to have previous convictions for theft and/or pending cases which put them in a Schedule
5 category. Despite the pleaded allegation that the appellants were remanded in custody on the 20th
without being afforded a reasonable opportunity to address the court on their possible release from
custody , it is evident that they were legally represented a t the first appearance.
13 In his bail affidavit made on 1 December 2017 he still maintained his innocence that he knew
nothing about any firearm.
provide an address (neither did any of the appellants know where he lived) but that
he could show her where Kiddo could be found. On the 17th he undertook to do so .
He was however swearing and aggressive . Arrangements we re made with him to do
so on the following morning, the 18th, but his attitude changed overnight and he no
longer wished to cooperate in this respect thereafter .
[28] Asked to state exactly the reasons for her to have opposed bail she relied on
the confirmed fact that the Golf was robbed from the complainant and that a firearm
was used when the vehicle was taken from her . Further the Golf had been found in
the workshop not long after it had been hijacked where all of the suspects had been
caught in the act as it were busy stripping parts off it. She further needed to get
fingerprints off both the firearm and the Golf and also obtain a ballistics report. Later
she added t hat it was also necessary to secure SAP 69’s and , finally, that she had
been requested by the prosecutor to do a photo identity parade with the complain ant
to ascertain if the suspects may have been involved in the hijacking itself. As it
turned out, n one of them could be identified by her and this was why, by the 27th, she
was inclined to agree to their release on bail and confirmed as much in an affidavit
made by her that was handed up in court. In the same affidavit she however stood
opposed to Mr . Agherdien being granted bail.
[29] Even though she agreed that the tenor of the appellants’ warning statements
obtained on the 17th pointed to Mr . Agherdien as be ing the one who had brought the
Golf to the workshop and that he was the owner of the pistol , she clarified that she
still considered it necessary to continue with her investigations vis-à-vis all the
suspects to check which of them might have had knowledge regarding the hijacking
of the Golf itself given the conflicting information the suspect s had provided . She
was not prepared to risk simply believing them . She was further not incline d to give
the 3rd appellant a pass on his version that his presence at the arrest scene that
night was innocent because of the statements of the arresting officer an d crew
member that also implicat ed him in the stripping of the Golf.
[30] The essential highlight of the testimony of the officers at the arrest scene
(which aligned with their founding statements on which Constable Diniso pitched her
investigation and stood opposed to the appellants’ possible release on bail until she
could be certain that they were not involved beyond the obvious stripping of parts
from the stolen Golf) is that not one of the appellants or Mr. Ag herdien h ad offered an
explanation at the time for the presence of a stolen motor vehicle at the workshop or
why there were involved in the stripping of its component parts . Moreover, no one
cared to explain why , what he mistook to be a firearm , was found in the e ngine
comp artment of the Palio.
[31] Constable Naidoo agreed that he had not pertinently asked Mr . Agherdien to
account for his possession of the car keys and door panels at the scene of the
arrest. He readily conceded though that it had looked like all fingers were pointing to
the latter as being the chief suspect by the time they left the 6th appellant’s home
once all the suspects were placed under arrest.14
[32] Only the 3rd, 5th and 6th appellants testified at the trial. Contrary to the
evidence of the police officers that all the arrestees were actively involved in the
stripping of the Golf by the time they arrived at the workshop , the 3rd appellant
insisted that his pre sence at the scene of the arrest was entirely innocent and merely
co-incidental. He claimed to have gone to the 6th respondent’s home to sell a USB
device to him. The 5th and 6th appellants in their testimony sought to downplay any
criminal involvement in the stripping of the Golf or knowledge of the fact that the
motor vehicle was the property of someone other than Mr. Agherdien.
[33] After hearing the evidence, the Magistrate determined that the appellants’
arrest, and detention for both periods, was not unlawful and dismissed their cla ims.
No costs order was made against them, premised on the Biowatch principle .15
Dissatisfied with th e outcome on the merits , however , the appellants appealed to this
court.
14 This is neither here nor there because the other six suspects would still have had to account for
their association with the stolen Golf by their involvement in stripping off its parts.
15 Biowatch Trust v Regi strar Genetic Resources & Others 2009 (6) SA 232 (CC). The “ Biowatch
principle ” established by the Constitutional Court posits a general rule that in constitutional litigation
an unsuccessful litigant asserting a constitutional right in proceedings against the State ought not to
be mulct with costs unless the application is frivolous or vexatious or is in any other way manifestly
inappropriate.
[34] The appeal challenge s, firstly, the manner in which the Magistrate assessed
the evidence and , secondly, her determination thereanent (on the accepted factual
premise) that the arrest of the appellants was justified and that both periods of
detention as well were lawful.
[35] In the notice of appeal the appellants submitted, regarding the first ground,
that “(t)he magistrate erred and misdirected herself in not properly evaluating the
evidence as a whole, did not consider the versions that were given to the police at
the time of arrest and incorrectly finds that the appellants did not say anything at the
time of the arrest” .
[36] In an ill -conceived attempt to isolate out the evidence of the 3rd appellant,
whereas the Magistrate was correct to deal with the evidence wholistically, it was
further submitted that the court a quo was wrong to dismiss the latter’s claim for
unlawful arrest and detention despite finding that he was only at the 6th appellant’s
house to sell a USB device . This strained interpretation of the Magistrate’s
judgement however overlooks her primary finding of fact that all of the appellants
were making themselves complicit in the stripping of parts from the stolen Golf at the
time the Police arrived .
[37] Regarding the second and third challenges on appeal , the appellants take
issue with Magistrate’s findings on the law , firstly in concluding that their arrest was
justified and that the re was a reasonable suspicion to arrest all of them16 and,
secondly, in determining that their detention in respect of each period under scrutiny
was lawful.
[38] In getting to the factual premise which was found proven and against which
the legality of the arrest and detention were tested , the Magistrate referenc ed the
application of the customary approach to be adopted where a court is confronted
16 Implicit in this aspect of the challenge on appeal is the suggestion that the police should only have
arrested Mr. Agherdien , but this presupposes an acceptance of the appellants’ version, which the trial
court rejected.
with irreconcilable versions17 and, for reasons which are indicated below , in our view
correctly applied these principles in reaching the conclusion that the officers’
testimony regarding the events of the night in question was acceptable and more
probabl e than that of the appellant s.
[39] In applying the standard te chnique utilized by courts in resolving factual
disputes , she reasoned that Constable Naidoo had testified in a clear and
satisfactory man ner and was perfectly corroborated by his colleague concerning the
fact especially that no rea sonable explanation had been tendered by the appellant s
for the ir ostensible possession of the reported stolen Golf (or the find of the gas
pistol for that matter) neither had they sought to offer an innocent explanation for
their presence at the scene or for their apparent association in the stripping of the
confirmed stolen motor vehicle, the substitution of the Golf’s registration number
plates , or the destruction and concealment of the original plates .
[40] Additionally, and with keen insight in our view, the Magistrate made strong
credibility findings against the appellants and properly addressed the probabilities,
both of which factors are key in resolving irreconcilable versions in a civil trial.
[41] It is a trite principle that it is only in exceptional circumstances that a court of
appeal will interfere with the trial court’s evaluation of the evidence.18 Whilst the
Constitutional Court in Makate v Vodacom (Pty) Ltd (“Makate”)19 reiterated the
important moderating proviso that the deference afforded to a trial court’s credibility
findings must not be overstated, it must be established by the party seeking on
appeal to upset or overturn the credibility findings of a trial court th at the record
demonstrates that the trial court came to a “wrong conclusion ”, in which event the
court of appeal will be duty -bound to overrule the factual findings of the trial court “ so
as to do justice to the case ”.20
17 Stellenbosch Farmer’s Winery Group Ltd & Another v Mart ell & Cie SA & Others 2003 (1) SA 11
SCA at para [5] , NEG Insurance Association General v Ga ny 1911 AD 187 at 199 , Santam Bpk v
Biddulphs 2004 (5) SA 586 (SCA) at 589 (G ).
18 C v C & Others (Case No. 205/2019) [2021] ZASCA 12 (3 February 2021).
19 2016 (4) SA 121 (CC) .
20 Makate supra , at [40].
[42] In this instance I daresay that the appellants failed dismissably in pointing out
any such wrong conclusions. The crux of the dispute concerned what was or wasn’t
said at the scene of arrest to speak to the immediate concern of the officers, which
was for the appellants to answer to the question why late at night they were stripping
parts off a motor vehicle that, so it was accepted by all concerned, was then and
there confirmed to be one that had been stolen in a hijacking in close proximity to the
worksho p shortly before the police officers’ arrival on the scene .
[43] Ironically not one of the appellants denied that a stripping of parts had in fact
occurred at some stage that evening21 even though the officers were criticised for
failing to have remembered four years after the fact when they testified what tools
exactly were being used by each suspect as if that was more critical than their
damning testimony that something criminally untoward with respect to the stolen Golf
was playing out before their very eyes when they arrived on the scene .
[44] The 6th appellant explained with specific reference to the central issue that
when the police had approached them “ they did not ask a lot of questions ” yet did
ask whose vehicle it was. He related that he had told them: “ Here is the man with the
vehicle. He brought the vehicle here ”. This assertion is however not even consistent
with the appellants’ particulars of claim in which the direct allegation was made that
the arresting officer had failed to consider the admissions made by Mr . Agherdien
supposedly at the time of arrest that the Golf and firearm belonged to the latter. It is
certainly against the probabilities that Mr. Agherdien came clean right then and there.
To the contrary even in his warning statement and later in his affidavit filed in support
of his bail application, he resisted accepting blame and was rather pointing the finger
back at the 6th respondent than accepting responsibility for his association with the
stolen motor vehicle .22
21 There was a denial by th ose who testified that all six appellants w ere found stripping the Golf of its
parts at the time of the arrival of Constable Naidoo and his crew partner . Ironically on such a version
there would have been no reason to offer any explanation.
22 Mr. Agherdien in his bail statement said that he had received a call from “ one of the accused
persons ” who had asked him if he was interested in buying a motor vehicle. He claims to have been
at the home of this person to inspect the motor vehicle and query the papers when the police arrived.
The point of highlighting this is that it militates against h im having made the admission the appellants
say he did right from the get -go. It was also made clear in that affidavit that he knew nothing about
any firearm. The appellants’ entire case rested on the premise that it was then and there made clear
[45] The 5th appellant also sought to persuade the trial court that he too pointed
out Mr. Agherdien to the police at the scene of arrest as the person that brought the
car but that they did not want to listen and instead assaulted him. This was certainly
not borne o ut in any of the other evidence (oral or documentary) and indeed it is
improbable that he would not have sought to assuage this supposed dramatic
violation of his physical integrity and security in the action instituted against the
respondent or have menti oned it amongst the supposed breaches of their
constitutional rights in the ir particulars of claim , if it had in truth occurred.
[46] The appellants who did testify were in our view justified in being criticized for
contradicting themselves and each other with reference to what they stated in their
warning statements and oral testimony . They were evasive and patently adapted
their evidence as the proverbial shoe began to pinch. The probabilities too speak
comfortably to the trial court’s rejection of their testimony where it was in conflict with
what the police officers related concerning the damning find on their arrival at the
scene of arrest and how the appellants had reacted under the circumstances .
[47] We are satisfied that the Magistrate properly w eighed the evidence in its
totality and find no basis to doubt the factual findings made by her .
[48] Concerning the Magistrate’s approach in determining that the arrest was
lawful Ms . Du Toit referred this court to the judgement of Setlhapelo v Minister of
Police and Another (“Setlhapelo ”) 23 with reference to the jurisdictional facts
necessary to satisfy the respondent’s reliance on the provisions of section 40 (1) (e)
of the CPA . The five jurisdictional facts postulated in Setlhapelo for reliance on this
ground to arrest without a warrant, are as follows:
“The jurisdictional facts for an arrest in terms of s 40(1)(e) of the CPA are the
following: 1) the arrestor must be a peace of ficer, 2) the suspect must be
found in possession of the property, 3) the arrestor must entertain a suspicion
to the police who was behind all of the mischief, if any , yet they were all strung along simply because
they happened to be at the 6th appellant’s home at the time .
23 [2015] ZAGPPHC 363 (20 May 2015).
that the property has been stolen or illegally obtained, 4) the arrestor must
entertain a suspicion that the person found in possession of the pro perty has
committed an offence in respect of the property and 5) the arrestor's suspicion
must rest on reasonable grounds.”24
[49] She contended that proof of the fourth r equirement in particular would depend
especially on the acceptability of the explanation given by the suspects for their
possession of such property . That is so, but the thrust of her argument depends for
its force on a consideration based on her client’s version that they had supposedly
informed Constable Naidoo right then and there that the Golf and pistol “ belonged ” to
Mr. Agherdien (and that they were not found stripping the Golf) , a factual premise
that the trial court in our view correctly rejected.
[50] The accepted factual premise does not advance the appellants’ case at all
with reference to the court’s peculiar approach adopted in Setlhapelo in interrogating
the proof of the fourth and fifth jurisdictional facts , as follows:
“If regard is had to s 36 of the General Law Amendment Act 62 of 1955, I
am of the view that a suspicion originally based on insufficient grounds
that the property has been stolen or illegally obtained or that a suspect
has committed an offence in regard to property which is suspected of
having been stolen or dishonestly acquired can become a reasonable
suspicion as a result of something which the suspect says or does at the
time when he is found in possession of the goods, such as giving an
unacceptable exp lanation for his possession of such property.
The plaintiff was found in possession of the property. The number and
nature of the items found in the boot and the fact that the price tags had
been removed were perhaps insufficient grounds to suspect that t he
property had been stolen, but when the plaintiff was asked for an
explanation and he gave one explanation, changed his version and then
gave another which could not be verified, the suspicion that the property
24 At para [21].
had been stolen and that the plaintiff had committed an offence in regard
thereto, in my view, became objectively reasonable.
In the result I find that the defendant has proved all the jurisdictional facts
for a lawful arrest. ”25
[51] Compared to the facts found proven in casu , once it was confirmed t hat the
Golf found in the workshop (which the appellants even on their own version could not
shy away from had been stripped of its component parts) was the same vehicle
stolen in the reported hijacking (hence stolen and probably then also “ dishonestly
obtained ”), the question begged itself : Why were the appellants involving
themselves in relation to a confirmed stolen motor vehicle in this manner ? At th at
moment they were constructively in possession of the Golf and it was certainly not
normal workshop business to be involved, late at night, in stripping part s off it. The
other contenders were the fin d of a “ firearm ”, whether real or not, and the fact that
number plates had been switched and the Golf’s plates hidden under the Palio. Now
was the time to say and do something to absolve themselves entirely from any
criminal involvement in respect of the Golf .
[52] If any answer would have mattered it was one that suggested that Mr.
Agherdien who had brought the m otor vehicle to the workshop late at night to be
stripped of its parts, had a legal entitlement not only to have been in possession of it,
but also to have been stripping it and using the workshop’s services towards such
end, n either of which suppositions formed the basis for the accepted factual premise.
[53] Indeed, o n the basis of the facts found proven by the court a quo that the
appellants and Mr . Agherdien were at the time of the arrival of the Police at the
workshop then actively engaged in stripping parts and could not deflect why ,
Constable Naidoo’s suspicion already had legs as being objectively reasonable . But
even on the appellants’ version that they informed the police officers that Mr .
Agherdien had brought the vehicle there which had been stripped of its number
plates, front grille and original tyres sometime earlier that evening with its parts
standing ready in the bakkie to be moved off the premises , it would still have been
25 At [22], [23] and [24].
reasonable in our view for the trial court to have concluded that Constable Naidoo
reasonably formed the impression that all of the suspects under that roof had made
themselves co mplicit with an offence with respect to the positively confirmed stolen
Golf for which they had to account.
[54] On the accepted factual premise which we endorse , the appellants kept mum,
which rendered Constable Naidoo’s suspicion that the appellants had co mmitted an
offence with regard to the stolen Golf objectively reasonable.
[55] It was strongly contended by Ms . Du Toit that the respondent, despite the
onus resting on him, had also failed to justify the arrest in terms of section 40 (1) (h)
of the CPA , this based on the fact that the supposed firearm turned out to be a gas
pistol or “BB airgun” as it is colloquially known . Constable Naidoo had however
made it clear in his testimony that he and his colleague had not handled the pistol
found at the workshop for fear of compromising the real evidence . Furthermore,
upon its surprise find under the hood of the Fiat Palio , he honestly believed it to have
been a firearm.
[56] To my mind the fact that it tu rned out not to be a firearm capable of sustaining
the second charge brought against the appellants is neither here nor there . The
surprise find of the gas pistol must have reasonably triggered in Constable Naidoo’s
mind a remembrance that the recent robbe ry reported was an armed one . In this
context, it was certainly reasonable to consider that the presence of a hidden pistol
in the Palio , right next to the Golf, supported his suspicion that an offence had been
committed in relation to the Golf involving its use and that it was a firearm proper .
[57] Ms. Du Toit sought to rely on this court’s finding in Korkie v Minister of Police26
that it had been unreasonable for the arresting officer in that matter to have believed
that he had found a firearm proper in circumstances where he had had a decent
opportunity to look at an airgun retrieved and see that it could only but have been an
airgun rather than a 9mm pistol . The facts in that matter are however entirely
distinguishable from the circumstances here concerned . Constable Naidoo did not
26 [2022] ZAECGHC 2 (1 February 2022).
have an opportunity to study the pistol and discount it as a mere airgun. His instinct
though th at it was a firearm and might have been used in the hijacking was
objectively reasonable as the trial court correctly found.
[58] With regard to the appellants’ detention after their arrest, the Magistrate in our
view correctly determined that there was nothing arbitrary about the ir detention in
respect of either period . As to how the Police handled the investigation she was
satisfied that their conduct was not malicious ; that it had been necessary for
Cons table Diniso to check out Mr. Agherdien’s alibi of Kiddo before taking the docket
to court, and that correct statutory procedures were adopted. More critically, she
recognized that , although the matter was handed over to the prosecut or who then
made a dec ision to oppose bail, the Police did not misrepresent facts that resulted in
the appellants being detained unlawfully . Neither did she consider that the Minister
was liable for the detention at the instance of the court. She further noted that the
facts of the matter before her were distinguishable from those before the Supr eme
Court of Appeal in Woji v Minister of Police (“Woji”)27 where a police officer had given
untruthful information at court in bail proceedings that had caused bail to be refused.
[59] Whilst notional legal causation was readily conceded by Constable Diniso at
trial, this is as Ms. Glanville who appeared for the respondent correctly pointed out,
not one of those kind s of situations recognized in Woji and three other recently
decided classical examples of the court fixing liability on the Police for wrongful post -
hearing detention. These have been helpfully summarized in Minister of Police v
Erasmus28 which sets out the basic principles of our law applicable to the
determination of the liability of the Minister of Police and the National Director of
Public Prosecutions for the deprivation of liberty in the aftermath of an arrest as
follows:
“It is nec essary, at the outset, to set out the basic principles of our law that are
applicable to the determination of the liability of the Minister and the NDPP for
the deprivation of the liberty of Mr Erasmus for this period. These are the
following. Both wrongfu l and malicious deprivation of liberty are iniuria
27 2015 (1) SACR 409 (SCA).
28 [2022] ZASCA 257 (22 April 2022).
actionable under the actio iniuriarum . Wrongful deprivation of liberty
(detention) takes place where the defendant himself, or his agent or
employee, detains the plaintiff. Malicious detention takes place under or in
terms of a valid judicial process, where the defendant makes improper use of
the legal machinery of the state. The requirements to succeed in an action for
malicious detention are therefore like those for malicious prosecution namely:
that the defendant instigated the detention; that the instigation was without
reasonable and probable cause; and that the defendant acted with animus
iniuriandi . See Neethling et al Law of Delict 5 ed (2006) at 304 -306. It follows
that the NDPP could only be liable for the second period of detention if these
stringent requirements were proved in respect of the relevant prosecutors.
When the police wrongfully detain a person, they may also be liable for the
post-hearing detention of that person. The cases show that such liability will
lie where there is proof on a balance of probability that, (a) the culpable and
unlawful conduct of the police, and (b) was the factual and legal cause of the
post-hearing detention. In Woji v Minister of Police [2014] ZASCA 108; 2015
(1) SACR 409 (SCA), the culpable conduct of the investigating officer
consisting of giving false evidence during the bail application caused the
refusal of bail and resultant deprivation of liberty. Similarly, in Minister of
Safety and Security v Tyokwana [2014] ZASCA 130; 2015 (1) SACR 597
(SCA), liability of the police for post -hearing detention was based on the fact
that the police culpably failed to inform the prosecutor that the witness
statements implicating the respondent had been obtained under dures s and
were subsequently recanted and that consequently there was no credible
evidence linking the respondent to the crime. In De Klerk v Minister of Police
[2019] ZACC 32; 2020 (1) SACR (CC) paras 58 and 76, the decisive
consideration in both the judgments that held in favour of the appellant was
that the investigating officer knew that the appellant would appear in a
‘reception court’ where the matter would b e remanded without the
consideration of bail. Finally, in Mahlangu and Another v Minister of Police
[2021] ZACC 10; 2021 (2) SACR 595 (CC) , the investigating officer
deliberately supressed the fact that a confession which constituted the only
evidence agai nst the appellants, had been extracted by torture and thus
caused their continued detention. ”29
[60] Further and in any event, if one has regard to the provisions of section 50 of
the CPA in their entirety , which provide s a framework against which to test the
legal ity of the subsequent detention of a person arrested for allegedly committing an
offence and which indicate the objectively reasonable incursions that are expected to
ensue in the aftermath of an arrest, it appears to us that the appellants were
accorded the proper respect of the law and that the in vasion of their liberty w as
permissible based on that fact that the charges which they were suspected of were
serious and did not permit, without the necessary rigours insisted upon by Constable
Diniso , for the appellants to have been released on bail before the State could be
satisfied that it was in the interests of justice to do so . The fact that early bail was
objectively contra -indicated can be distilled from the very plausible reasons provided
by her why she stood opposed to bail.
[61] It is also to be noted that the 1st, 3rd and 5th appellants, evidently because they
had previous convictions, were charged with Schedule 5 offences , and that the court
on the 27th, even if only perfunctorily given that bail was conceded by the State on
that date, applied the letter of the law in properl y considering the issue of bail to
them. In this regard it appears that the 1st, 3rd and 5th appellants’ affidavits were
submitted into evidence in the bail proceedings no doubt in substantiation of the
legal requirement applicable in the case of a Schedule 5 offence that such an
accused be detained in custody unless he/she adduces evidence which satisfies the
court that the interests of justice permit his/her release. With no evidence presented
by the State to gainsay that proposition, the court co uld judicially determine the
matter of their entitlement to be released on bail at that juncture. As for the other
appellants, on the facts found proven, it was not unreasonable that they too had to
be put through the wringer as it were and endure the one week postponement
pending the investigations which Constable Diniso testified had been vitally
necessary in the circumstances.
29 At [11] and [12].
[62] Even if Constable Diniso had to speculate for the National Director of Public
Prosecutions (who was not a party to the action ) that a reasonable basis to oppose
bail existed continuously until the appellants’ release on bail ultimately on the 2 7th,
namely that it was not in the interest s of justice to release them on bail before th en,
she could confidently say with re ference to what was in the docket that the facts at
her disposal remained adverse to the appellants or did not permit of their release on
bail from the first moment of their arrest at least until the identity para de and other
investigati ve matters had taken their course. These measures were by no means
arbitrary but proportional to what was at stake.
[63] As for the appellants’ initial detention, it was pleaded very generally that the
arresting officer as well as other police officers failed t o apply their minds in respect
of the detention and that there were no reasonable and objective grounds justifying
the deprivation of their liberty , but such a conclusion could hardly have been
sustained by the trial court on the basis of the accepted factual premise. Consistent
with the principle stated in Minister of Safety and Security v Sekhoto and Another30
and applied in Minister of Police v Fry31 the mere nature of the offences justified the
arrest for purposes of bringing the appellants to justice.
[64] Concerning the allegation that they did not appear in court as soon as
reasonably possible and that they could have been charged and taken to court on
the 16th of November 2017, alternatively on the 17th of November 2017 , the details of
this claim ed infringement were bereft o f any real pleaded or evidential basis.32
Indeed no reason was indicated why the appellant’s believed that their first
appearance in court should have necessarily been expedited.
[65] In Mashilo v Prinsloo33 to which Ms Du Toit referred , the court observed t hat:
“…The outer limit of 48 hours envisaged in the subsection does not, without more,
30 Minister of Safety and Security v Sekhoto and Another (131/10) [2010] ZASCA 141; 2011 (1) SACR
315 (SCA) ; [2011] 2 All SA 157 (SCA); 2011 (5) SA 367 (SCA) (19 November 2010) at [44].
31 Minister of Police v Fry (CA250/2019) [2020] ZAECGHC 150 (6 December 2020) at [146].
32 Although the onus rests upon the respondent to establish that the detention in question was lawful it
only arises in the adjudication of a matter if the unlawfulness of the detention is pleaded or is
canvassed in the evidence. It must thus be pleaded in a manner which triggers the application of the
onus. See Syce , Supra , at [40].
33 [2012] ZASCA 146 (28 September 2012).
entitle a policeman to detain someone for that entire period without bringing him to
court if it could be done earlier. The subsection obliges police authorities to bring
someo ne before court as soon as is reasonably possible. This is so, whether or not
the 48 hours expires before or during the weekend. Expedition relative to
circumstances is what is dictated by the subsection and the detention. Deliberately
obstructive behaviou r, as was evidenced by Mashilo, is not tolerated. ”
[66] Apart from the expectation that the pleadings should have invited some basis
to support Ms . Du Toit’s submission from the bar that the Police were negligent in not
expediting the appellant’s first appearance in the lower court, which would have
properly triggered the onus,34 the accepted evidence assessed wholistically in our
view did not suppor t any expedition relevant to circumstances or of obstructive
behaviour on the part of the Police having a factual and legal cause in the appellants’
detention in this interlude.35 Ms. Du Toit submitted in argument that there was
absolutely no evidence pl aced before the trial court as to the reason why the
appellants were only brought to court on the 20th and that the trial court had in effect
been requested to speculate given that Constable Diniso could only surmise what
had gone before she took charge of the docket .
[67] Apart from what appeared in her docket to support the fact that touch DNA
was obtained on the 16th, it is so that no other evidence was led by the respondent to
give a blow by blow account of what ensued after the appellants were detained at
the Gelvandale Police Station until Constable Diniso could pick up the narrative
again from the moment she became involved with the investigation. But therein lies
the rub. The onus on the Poli ce to establish that detention is lawful does not arise in
a vacuum. That having been said though, even in the absence of an allegation in the
pleadings inviting the respondent to answer to a pertinent claim of culpable
misconduct of a police officer , we are satisfied that the trial court correctly found no
misconduct of the Woji kind or any other failing on the part of the Police wholistically
assessed in not having brought the appellants to court before Monday, the 20th. The
evidence given by Constable Di niso after the fact supports a conclusion that the
circumstances did not dictate any expedition . The investigative milestones and the
34 See footnote 32.
35 Erasmus, Supra , at [12].
safeguard s mentioned by her appear to have been properly justified and the
appellants’ detention at this juncture would not have been in appropriate in the whole
scheme of things .
[68] There is accordingly no merit in our view in the challenge on appeal relating to
the court a quo’s application of the law in respect of either incident of the appellants’
claim . The appeal accordingly falls to be dismissed.
[69] There is no reason why the costs should not follow the result. The court a
quo was generous in our view in not having ordered the appellants to b ear the
ordinary consequences, costs -wise, of a failed action for damages in a scenario
where the Magistrate had made significant adverse credibility findings against the
appellants who testified. The 6th appellant co -incidentally did n ot hesitate when he
testified to confirm under cross examination that he had indeed been informed of his
const itutional rights (incorporating the right to apply for bail) yet this was one of the
significant premises of their case pleaded in the particulars of claim , no doubt to set
the tone that the Police had abused their powers in the circumstances of the matter
and acted highhandedly.
[70] In our view this is not one of those cases.
[71] In the result the following order issues:
1. The appeal is dismissed with costs , such costs to be determined on Scale
B in respect of counsel’s fees.
_________________
B HARTLE
JUDGE OF THE HIGH COURT
I AGREE,
_________________
N GQAMAN A
JUDGE OF THE HIGH COURT
DATE OF APPEAL : 28 February 2025
DATE OF JUDGMENT : 16 May 2025
Appearances:
For the Appellants: Ms. M Du Toit instructed by Carol Geswint Attorneys c/o Dullabh
& Co , Makhanda (Mr. Dullabh).
For the Respondent s: Ms. H Glanvill, instructed by Nolte Smith Inc., Makhanda
(ref. T Kingwill ).