2
THACKWEL L AJ


Introduction
[1] This is an action for damages arising from what the plaintiff says was his unlawful
arrest and detention. The plaintiff, Mr. M angena Azon Mkhonza, seeks damages
against the Minister of Police for his arrest on 28 March 2019 and subsequent
detention until 14 August 2020, a period of approximately 16 months and 17
days.
[2] The plaintiff was arrested on suspicion of having raped a minor. He was detained
first at Primrose Police Station and subsequently at Boksburg Prison. The plaintiff
remained in detention from his arrest until he was released on 14 August 2020.
The charges were withdrawn on 14 July 2020, one month prior to his release
from detention.
[3] The central issues for determination are:
a. Whether the plaintiff’s arrest on 28 March 2019 was unlawful;
b. Whether his detention from 28 March 2019 until 14 July 202 0 was unlawful;
c. Whether the defendant is liable for the plaintiff’s continued incarceration
from 14 July 2020 until his eventual release on 14 August 2020 ; and
d. If liability is established, the quantum of damages to be awarded.
[4] The matter turns largely on whether Sergeant Mthunzi Mehlomakulu, the
arresting officer, had reasonable grounds for suspecting that the plaintiff had
committed the alleged offen ce, and whether the continued detention was
justified. The plaintiff contends that the arrest was arbitrary and based on
insufficient grounds, while the defendant maintains that the arrest was lawful
under Section 40(1)(b) of the Criminal Procedure Act 51 o f 1977 and that the
subsequent detention was justified given the serious natur e of the alleged
offen ce. With that, I turn to a brief overview of the applicable legal principles.

3
Applicable legal principles
[5] The starting point is that any arrest without a warrant is prima facie unlawful.
Once such an arrest is established, the onus rests on the defendant to prove its
lawfulness. It is common cause in this case that the plaintiff was arrested without
a warrant. Accordingly, the defendant bore the onus of demonstrating the
lawfulness of the plaintiff’s arrest.
[6] For an arrest under Section 40(1)(b) to be lawful, the following requirements must
be met:
a. the arrestor must be a peace officer ,
b. the arrestor must entertain a suspicion ,
c. the suspicion must be that the suspect committed a Schedule 1 offen ce,
and
d. the suspicion must rest on reasonable grounds .
[7] The defendant’s witness, Sergeant Mehlomakhulu, was a peace officer at the
time he arrested the plaintiff. This is not in dispute. It can also be accepted that
Sergeant Mehlomakhulu – subjectively at least – entertained a suspicion that the
plaintiff committed a Schedule 1 offence. It is the fourth element (d) that requires
an in -depth consideration and on which this case turns.
[8] The test for reasonable suspicion was comprehensively articulated in Mabona
and another v Minister of Law and Order and others (1988 (2) SA 654 ) at 658E -
H:
“The test of whether a suspicion is reasonably entertained within the meaning of
s 40(1)(b) is objective (S v Nel and Another 1980 (4) SA 28 (E) at 33H). 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
possessi on 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 the
4
section authorises drastic police action. It authorises an arrest on the strength of
a suspicion and without the need to swear out a warrant, ie something which
otherwise would be an invasion of private rights and personal liberty. The
reasonable man will 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 entertain a suspicion which will justify an arrest. This is not to
say that the information at his disposal must be of sufficiently high quality
and cogency to engender in him a conviction that the suspect is in fact guilty.
The section requires suspicion but not ce rtainty. However, the suspicion must be
based upon solid grounds. Otherwise, it will be flighty or arbitrary, and not a
reasonable suspicion.
[9] The law requires that before making an arrest, a n officer must do more than
simply form an initial suspicion. The suspicion must be reasonable when viewed
objectively. Practically, this means the arresting officer needs to take concrete
steps to validate their initial suspicion by investigating the essential elements and
facts potentially relevant to the particular offen ce. The officer must examine and
consider the veracity of the information she or he is presented with at the time.
Only after conducting such an investigation can an officer properly conclude that
their suspicion is reasonable and that sufficient grounds exist to make the arrest.
Absent such an investigation leading to the conclusion that the suspicion is based
on ‘solid grounds’, an officer's initial suspicion will not meet the test that the ir
suspicion is based on reasonable grounds.
[10] Suspicion alone is insufficient . It must be transformed into a reasonable
suspicion through active investigation of the available information and
circumstances considering – in parallel – the severity of the invasion of a person’s
rights when arrested without a warrant. What this investigation entails will differ
from case to case and there are no set requirements . The requirements in each
instance will be derived from the particular set of circumstances in play.
[11] I now turn to the evidence presented in this case.

5

Evidence
[12] The plaintiff testified that on 28 March 2019, he was at his home in Marathon
Squatter Camp, where he lived with his son, Amos Mkhonza. At the time, he was
engaged in his business of selling cooked meat from his home premises.
[13] According to his testimony, two police officers, a female officer and a male officer
whom he later learned was Sergeant Mehlomakulu, arrived at his home
accompanied by a woman and a child. The plaintiff stated that he did not know
either the woman or the c hild prior to this encounter.
[14] The plaintiff testified that when the officers arrived, the female officer did not
speak, but the male officer (Sergeant Mehlomakulu) asked him if he knew the
woman accompanying them. When the plaintiff replied that he did not, the officer
informed him that this woman alleged he had raped her child . According to the
plaintiff, he was arrested without being asked any substantive questions about
the alleged offen ce, and despite his protests of innocence.
[15] The plaintiff's son, Amos Mkhonza (37), corroborated , to a large extent, his
father's version of events. He testified that on the day of the arrest, he was inside
their residence when his father called him to inform him that he was being
arrested. Amos's evidence was that his father was a good man who was fond of
children and had helped raise four children of his own. He testified that he was
shocked by the allegations against his father, stating , in essence, that it was
unthinkable that his father could have done what he was accused of, especially
given that they were always working together in their business. He described
their business as successful, particularly busy on weekends, and explained that
it involved buying meat at City Deep early in the mornings, and then returning
home to prepare and sell it.
[16] The plaintiff testified that after his arrest, he was taken to Primrose Police Station
where he was detained. He was later taken to court where bail was denied . The
plaintiff remained in detention at Boksburg Prison .
6
[17] The plaintiff provided a harrowing account of his time in detention. He described
being housed in a cell with approximately 60 other inmates in unsanitary
conditions where toilets were frequently blocked. He witnessed violence among
inmates, including the stabbing of an inmate who was next to him and another
inmate being struck on the head with a blunt object. As a non -smoker at the age
of 66 (born in 1953), he suffered from headaches and chest pains for about three
weeks due to the various substances bein g smoked in the cell. He also stated
that the food was inadequate .
[18] The plaintiff also testified about the impact his arrest and detention had on his
life. He stated that after his release, he discovered that people in his community
viewed him differently, with some referring to him as dangerous to children. This
stigma fo llowed him to his home village in Mpumalanga. His family suffered
financially during his incarceration, with his wife having to return to her parents'
home due to lack of support, and the family having to sell his car to make ends
meet. The plaintiff's business, whic h had been providing income for his family,
was lost.
[19] My impression of the oral evidence adduced by both the plaintiff and his son was
that it was genuin ely given . I have no reason to doubt it.
[20] Sergeant Mehlomakulu testified that he was the investigating officer in the case.
He stated that at the time of the incident, he had been employed by the South
African Police Service as a sergeant for nine years and had previously worked
as a police officer for sev enteen years, with eleven years of experience in cases
involving the rape of minor children.
[21] Sergeant Mehlomakulu testified that on 28 March 2019, he had read and
considered the police docket before going to arrest the plaintiff. His testimony
about the docket and the competency of his investigation was not compelling.
Two points , in particular, struck me. Despite reference in the docket to the alleged
victim and her friend (Khethiwe ) having been rap ed by the same man, Sergeant
Mehlomakulu did not seek to question K hethiwe. This was a critical omi ssion .
Moreover, there was also refer ence in the docket to threats by the victim ’s mother
to beat her (the victim) in relation to the incident. The purpose behind the se
7
alleged threats is not clear to me. However, what is clear is that these alleged
threats and the reasons behind them should have been properly investigated .
Sergeant Mehlomakulu conc eded that he did not interrogate this issue prior to
arresting the plaintiff. This was another critical omission .
[22] These two omissions alone make Sergeant Mehlomakulu ’s investigation
inadequate. It is legally untenable to take the drastic step of arresting someone
when there are obvious and relatively simple further lines of investigation that
should have been done firs t and could have been done expeditiously (and which
may have unravelled th e arresting officer ’s initial suspicions ).
[23] More gener ally, I did not find Sergeant Mehlomakulu to be an impressive witness.
He was defensive and came across as evasive and, at times, irritable . The
defendant chose not to call the female officer who had accompanied Sergeant
Mehlomakulu to the plaintiff’s residence on 28 March 2019. The defendant’s
case, in large part, stands and falls by Sergeant Mehlomakulu ’s evidence.
[24] Mr. Matsobane, the acting head of the Boksburg Medium A Correctional Centre,
testified about the plaintiff's detention. He confirmed that according to computer
records, the plaintiff was admitted to the prison on 29 March 2019 as a remand
detainee based on a J7 form (warrant of detention).
[25] Mr. Matsobane testified that the prison received a warrant of liberation dated 14
July 2020 on 13 August 2020. He confirmed that the plaintiff was only released
on 14 August 2020 at 13:55, after verification of the warrant with the court.
Defendant ’s pleadi ng objection
[26] Before addressing my substantive findings on liabi lity, I first deal with the
defendant ’s contention that the plaintiff ’s case regarding the arresting officer ’s
failure to properly exercise his d iscretion was never pleaded . This contention is
unsustainable for three reasons. Firstly , on the view I take, Sergeant
Mehlomakulu was never vested with a di scretion to arr est because the re quire d
(objectively defensible ) suspicion never existed. Second ly, the defendant led
evidence about the investigating officer ’s cond uct and his decision -making
process designed to demonstrate that Sergeant Mehlomakulu ’s conduct was in
8
keeping with the requ ired legal stand ards. I do not think a defendant can lead a
case in defence and, at the same time, say that the case it seeks to defend and
lead evidence on was not properly articulated in the pleadings. Thirdly , if the
defendant had genuine concerns about the case it was supposed to meet , it
should have made use of the remedies available to it through Rule 23 of the
Uniform Rules of Court at the outset of the matter.
Findings on liability
[27] After careful consideration of the evidence presented, I make the following
findings.
[28] The arrest of the plaintiff on 28 March 2019 was unlawful . Sergeant Mehlomakulu
did not conduct an adequate investigation to transform his in itial suspicions int o
an objectively def ensible susp icion as required by law. Accordingly, the
defendant has not discharged the onus of showing that the requirements of
section 40(1)(b) of the Criminal Procedure Act were met in respect of having
reasonable grounds for suspicion. Relatedly , the evidence in this case
demonstrates that Sergeant Mehlomakulu failed in his public law duty not to
unnecessarily violate the plaintiff ’s right to freedom. The evidence also reveals
that – at no stage – during the plaintiff ’s detention did Sergeant Mehlomakulu
make an y attempt to progress the inadequate initial investigations, nor did he
consider whether the continued detention of the plaintiff was appro priate .
[29] The evidence of Mr. Matsobane, the Correctional Services Officer, established
that although the plaintiff's case was withdrawn on 14 July 2020, the warrant of
liberation only reached the prison on 13 August 2020, resulting in the plaintiff's
continued deten tion for an additional month. The defendant provided no real
explanation for this significant delay. The failure to promptly communicate the
withdrawal of charges against the plaintiff to the prison authorities resulted in his
continued unnecessary detention, in violation of his constitutional right to
freedom and s ecurity of person.
[30] The test of causation established in Minister of Police v Skosana 1977 (1) SA 31
(A) is relevant in this case. But for the unlawful arrest of the plaintiff on 28 March
2019, none of the subsequ ent harm would have materialised . The plaintiff would
9
never have been detained at Primrose Police Station, never transferred to
Boksburg Prison, never subjected to the degrading conditions of overcrowded
cells, never separated from his family and business, and never stigmatised in his
community as a suspected child molester. The heavy -handed arrest of an elderly
man based on flimsy evidence represents exactly the kind of arbitrary state action
that our Constitution prohibits. I am s atisfied that e very day of the plaintiff's 505 -
day ordeal flows directly from that initial unlawful act. The causation is clear,
direct, and unbroken in my opinion.
Findings on damages
[31] Having determined the liability issue , I now turn to the question of the appropriate
quantum of damages.
[32] The plaintiff has claimed general damages in the amount of R30,300,000.00,
calculated at R60,000.00 per day for a period of approximately 505 days (from
28 March 2019 to 14 August 2020).
[33] In considering an appropriate award, I am guided by the principle articulated in
The Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) at
paragraph 20:
“Money can never be more than crude solatium for the deprivation of what in
truth can never be restored and there is no empirical measure for the loss .”
[34] As explained in Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA) at
paragraph 26:
“In the assessment of damages for unlawful arrest and detention, it is important
to bear in mind that the primary purpose is not to enrich the aggrieved party but
to offer him or her some much -needed solatium for his or her injured feelings. It
is therefore crucial that serious attempts be made to ensure that the damages
awarded are commensurate with the injury inflicted. However, our courts should
be astute to ensu re that the awards they make for such infractions reflect the
importance of the right to personal liberty and the seriousness with which any
arbitrary deprivation of personal liberty is viewed in our law. ”
10
[35] The Constitutional Court in Mahlangu and Another v Minister of Police 2021 (7)
BCLR 698 (CC) emphasi sed that the awarding of damages in such cases is
intended to deter and prevent future infringements of human rights by organs of
the state, and constitutes a goodwill gesture for successful plaintiffs rather than
attempting to rectify the wrong committed.
[36] In assessing the quantum in this case, I have consider ed:
a. the personal circumstances of the plaintiff;
b. the length and conditions of detention;
c. the effect of the detention on the plaintiff; and
d. comparable awards in similar cases.
[37] The plaintiff was 66 years old at the time of his arrest. He had never been
arrested before and had no previous criminal record. He was a family man with
a wife and four adult children, who operated a small business selling cooked
meat that supported his family.
[38] Moreover, t he conditions of his detention were severe (evidence of which was
uncontested by the defendant) , as I explained above. The duration of his
detention – approximately 16 months and 17 days – is exceptionally long for a
case where the charges were ultimately withdrawn , and no real evidence
identified in support of those charge s (at any stage ).
[39] The effect of the detention on the plaintiff was profound. His business collapsed
and his family suffered financial hardship to the point that his wife had to return
to living with her parents . Upon his release, he faced stigma in his community
and even in his home village in Mpumalanga, where people viewed him as a
child molester. This reputational damage continues to affect him and, in all
likelihood, will continue to do so.
[40] I considered various cases in assessing a fair award:
a. In Khanyi v Minister of Police [2023] ZAGPJHC 434, the court awarded
R250,000.00 for unlawful arrest and detention for approximately three days.
11
b. In Motladile v Minister of Police [2023] ZASCA 94, the Supreme Court of
Appeal awarded R200,000.00 for four days of detention.
c. In Diljan v Minister of Police [2022] ZASCA 103, damages of R120,000.00
were awarded for arrest and detention for approximately three days.
[41] While these cases involved significantly shorter periods of detention than the
present case, they provide guidance on the daily rates of compensation that
courts have considered appropriate. From these recent cases , the daily rate of
compensation ranges from approximately R40,000.00 to R 60,000.00 per day.
However, it would be inappropriate to simply multiply such a daily rate by the 505
days of the plaintiff ’s detention, as this would result in an unreasonably high
award .
[42] Taking all these factors into account, I consider that a fair and appropriate award
in this case is R1,500,000.00. This amount reflects both the long duration of the
detention and the severe impact it had on the plaintiff's life, while remaining within
reasonable bounds in comparison to other awards for unlawful arrest and
detention.
Order
[43] In the result, I make the following order:
a. The arrest and detention of the plaintiff without a warrant was unlawful;
b. The defendant is ordered to pay to the plaintiff the sum of R1,500,000.00
(one million five hundred thousand rand) in damages;
c. The defendant is o rdered to pay intere st on the aforesaid amount at the
prescribed rate from the date of this judgment to the date of payment;
d. The defendant is ordered to pay the plaintiff's costs of suit on the party and
party scale (Scale B ), such costs to include the costs of one counsel.

12
For the plaintiff:
Adv BB Ntsimane instructed by TN
Ramollo I nc.

For the defendant:
Adv EP Kotsoana instructed by the
State Attorney