SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy



IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION, KIMBERLEY

Case No: 549/2021
Reportable : YES/NO
Circulate to Judges: YES/NO
Circulate to Magistrates: YES/NO
Circulate to Regional Magistrates: YES/NO

In the matter between:

PRIVATE PANANA MOJE Plaintiff

And

THE MINISTER OF POLICE Defendant

Coram: Lever J


JUDGMENT

Lever J:

1. The plaintiff’ s claim against the Minister of Police, the defendant, arises out of an
alleged unlawful arrest . It is alleged in the Particulars of Claim that the arrest took
place on the 4 May 2019 at or about 22H00 at Postmasburg . It was alleged to be
an unlawful arres t and detention from the date of arrest up until the 12 November
2019.

2. The plaintiff framed his claim in the following manner:

“6. After his arrest, the Plaintiff was transported and detained at the
instance of the arresting officer. The Plaintiff was unlawfully detained
until 12 November 2019 at or about 16H00, wherea fter he was
released from Postmasburg Magistrates Court.
7. Both the arrest and subsequent detention of the Plaintiff were unlawful,
on one or more of the following ground/s:
7.1 The arresting officer failed to properly familiarise himself with the merits
of the case, prior to exercising his discretion to arrest or not;
7.2 The arresting officer did not take into account the plaintiff’s rights in
terms of Section 12 of Act 106 of 1 996;
7.3 The plaintiff was arbitrarily and without good cause deprived of his
freedom;
7.4 The arresting officer failed to consider utilising alternative methods to
secure the attendance of the Plaintiff at Court, as there was no urgency
and/or necessity t o proceed with an arrest.
8. The arresting officer had no right to interfere with the Plaintiff’s
constitutional right to freedom, in that:
8.1 The Plaintiff did not pose any risk to the community;
8.2 The Plaintiff was not a flight risk;
8.3 There were no grounds present to reasonably suspect that the Plaintiff
would harm himself, or any other member of the public;
8.4 There was no urgency for the arrest of the plaintiff;
8.5 The fact that the Plaintiff had a fixed address and was easily traceable,
was not taken into consideration;
8.6 The police never had any reasonable grounds to effect arrest on (sic)
the Plaintiff.
9. AND OR ALTERNATIVE:
The arrest and/or subsequent detention of the Plaintiff was unlawful
due to the fact that the arresting officer had no prima facie case and/or
reasonable grounds to arrest the plaintiff and/or subsequently detain
him.
10. AND OR ALTERNATIVE:
The arrest and/or subsequent detention of the Plaintiff was further
unlawful due to the fact that the Arresting Officer did not consider,
alternatively comply with the provisions of Standing Order G341 of the
South African Police Services. The arresting officer’s aim when
arresting the Plaintiff were none of the following:
10.1 To further investigate the matter;
10.2 To prevent the Plaintiff from committing any further offences;
10.3 To protect the plaintiff against himself or any other members of the
public.”


3. The defendant responded to the said Particulars of Claim by pleading as follows:

“6. AD PARAGRAPH 6
Save to admit that the Plaintiff was detained, the balance of the allegations
contained in this paragraph are denied.
7. AD PARAGRAPH 7 AND 8
The content of this (sic) paragraph and its subparagraphs are denied. The
Defendant specifically pleads that the Plaintiff was arrested in terms of
Section 40(1)(b) of the Criminal Procedure Act in that the arresting officer had
a reasonable suspicion that Plaintiff committed a schedule 1 offence.
8. AD PARAGRAPH 9
The contents of this paragraph are denied. The defendant pleads further that
a prima (sic) case is not a requirement for an arrest in terms of Section
40(1)(b) of the Criminal Procedure Act .
9. AD PARAGRAPH 10
The contents of this paragraph are denied.”

4. By agreement between the parties, the merits of this trial were separated fr om
the quantum. The special plea relying on the required notice as contemplated in
Act 40 of 2002 was not pursued. For present purposes the paragraphs from the
Particulars of Claim and the Plea thereto, quoted above, define the issues to be
determined by t his court at this time.

5. The defendant accepted the onus of proof and the duty to begin and led the
evidence of three witnesses, whose evidence will be dealt with hereunder.

6. The law for claims relating to unlawful arrest is that a person is entitled to liberty
and any deprivation of such liberty must be done on lawful grounds which the
defendant must establish.

7. The law on what is required for a lawful arrest , where the defence is based on
section 40(1)(b) of the Criminal Procedure Act1 (the CPA), was re -visited and
restated by the Supreme Court of Appeal (SCA) in the now well -known case of
MINISTER OF SAFETY AND SECURITY v SEKHOTO AND ANOTHER2. The
SCA in the Sekhoto case , considering the position of an arrest without a warrant
under the provisions of section 40(1)(b) of the CPA quoted the requirements as
set out in the case of DUNCAN v MINISTER OF LAW AND ORDER3 with
approval, and set out the position as follows:

“[6] As was held in Duncan v Minister of Law and Order, the jurisdictional
facts for a s 40(1)(b) defence are that (i) the arrestor must be a peace
officer; (ii) the arrestor must entertain a suspicion; (iii) the suspicion
must be that the suspect (the arrestee) committed an offence referred
to in schedule 1; and (iv) the suspicion must rest on reasonable
grounds. …”4

8. The SCA in Sekhoto’ s case considered whether there was now a fifth
jurisdictional fact required, being as set out by Bertelsmann J in the case of

1 Act 51 of 1977.
2 2011 (5) SA 367 (SCA).
3 1986 (2) SA 805 (A) at 818G -H.
4 Sekhoto., above., p. 373 at para [6].
LOUW & ANOTHER v MINISTER OF SAFETY & SECURITY & OTHERS5, that
arrest being an invasi on of the constitutional right to liberty that the police are
required to consider if there are no less invasive means to bring the suspect
before court tha n the immediate arrest and detention of the said suspect. The
SCA in the Sekhoto case held that ther e was no such fifth jurisdictional fact
required.6

9. As the SCA in the Sekhoto case point out even if the four jurisdictional facts are
established the arresting peace officer then has a discretion whether to arrest or
not.7 This discretion must be properly exercised.8 Such discretion must be
exercised in good faith , rationally and not arbitrarily.9 It points out that: “The
standard is not perfection or even optimum, judged from the vanta ge of hindsight
– so long as the discretion is exercised in this range (ie being exercised in good
faith, rationally and not arbitrarily), the standard is not breached.”10

10. In Sekhoto, the SCA points out that the said considerations of good faith,
rationality and absence of arbitrariness do not tell the court what factors the
peace officer must weigh -up in exercising this discretion. On this aspect the SCA
offers the followin g guidance:

“[40] … An official who has discretionary powers must, as alluded earlier,
naturally exercise them within the limits of the authorising statute, read
in the light of the Bill of Rights. Where the statute is silent on how they
are to be exercise d, that must necessarily be deduced by inference in
accordance with the ordinary rules of construction, consonant with the
Constitution, in the manner described by Langa CJ in Hyundai.
[41] In this case the legislature has not expressed itself on the mann er in
which the discretion to arrest is to be exercised: that must be
discovered by inference. And in construing the statute for that purpose,

5 2006 (2) SACR 178 (T) at 186a -c and 187e.
6 Sekhoto., above., at p 377 para [22].
7 Sekhoto., above., at p. 379 para [28].
8 Sekhoto., above., at p. 379 para [29].
9 Sekhoto., above., at p. 382 para [38].
10 Sekhoto., above., at p. 382 para [39].
the section cannot be viewed in isolation, as the court below appears to
have done.”11 (references omitted)

11. In relation to arrest without a warrant as contemplated in section 4 0(1)(b) the
SCA in Sekhoto examined the CPA and the purpose of an arrest being to bring a
person to trial. The arrest is but the first step in this process and the person
arrested must be brought before a court as required by law. The authority to
further detain to secure attendance at a trial is within the discretion of the court. In
these circumstances the SCA concluded that: “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 whether the case is one in which that decision ought
properly to be made by a court (or the senior officer). Whether the decision on
that question is rational, naturally depends on the particu lar facts, …”12

12. The SCA in Sekhoto, as Stretch J indicates in the matter of BARNARD v
MINISTER OF POLICE13 does not decide that “… the prudent policeman
endowed with a discretion to arrest is at large to simply ignore less invasive
methods, and, in doing so, to fail to exercise that discretion properly or at all.”14

13. The onus of establishing t hat an arresting officer did not exercise such discretion
properly or at all rests upon the person alleging that, ie in this case the plaintiff.15

14. The questions as to whether the necessary jurisdictional facts have been
established by the defendant or not and the question as to whether the discretion
of the arresting officer was exe rcised properly or at all are question s of fact. In
these circumstances the evidence adduced on behalf of the defendant needs to
be set out in some detail.

15. An armed robbery took place in Postmasburg on the 30 April 2019. A
businessman involved in the cash loans business had just withdrawn some

11 Sekhoto., above., pages 38 2 – 383 at paras [40] and [41]. The reference to Hyundai as it appears in
the quoted passage is a reference to 2001 (1) SA 545 (CC) at paras [21] to [26].
12 Sekhoto., above., pages 383 – 384 para [44].
13 2019 (2) SACR 362 (ECG) at page 374 para [48].
14 Barnard’s case., above at para [48].
15 Sekhoto case., above., pages 384 and 385 paras [48] and [49].
R800,000.00 cash from a bank in Postmasburg, whereafter he was accosted,
shot and injured and robbed of the R800,000.00 cash. The evidence led
established that the robbers were four black men.

16. The factual qu estion to be decided by this court is, was there sufficient evidence
at the time of the arrest, being the 4 May 2019 , to link the plaintiff to the said
robbery in the manner contemplated by the four jurisdictional grounds required to
affect an arrest witho ut a warrant in the manner contemplated by section 40(1)(b)
of the CPA.

17. Thereafter the court will consider whether on the established facts the arresting
officer exercised a discretion at all and if so whether the exercise of such
discretion was done in good faith, rationally and not arbitrarily.

18. Finally, this court will determine on the established facts whether the plaintiff is
entitled to damages for wrongful detention and if so, up to what point as against
the present defendant, being the Min ister of Police .

19. In his attempt to discharge the onus of establishing the four jurisdictional
requirements to effect an arrest without a warrant as contemplated by section
40(1)(b) of the CPA the defendant led the evidence of three witnesses. The thre e
witnesses concerned are: Lieutenant -Colonel (Lt -Col) Aggrey Sylvester Magugu
(Magugu); Lt -Col Jan Andries Adios Witbooi (Witbooi); and Warrant Officer (W O)
Stefaans Mangate (Mangate). All of whom are peace officers in the South African
Police Services (SAPS). It is common cause that they were all acting within the
course and scope of their employment with the defendant at all material times.

20. The plaintiff elected not to testify.

21. Lt-Col Magugu testified that at the time of the incident on the 30 April 2019, he
held the rank of Captain in the SAPS. His duties at that time were to investigate
murders and robberies in the entire Northern Cape Province. He was ordinarily
based in Kimbe rley. His commanding officer the Late Brigadier De Waal ordered
him to go to Postmasburg to investigate the relevant armed robbery . He travelled
from Kimberley to Postmasburg that very evening.

22. On arrival in Postmasburg he was directed to a house situ ated at 8 Motlaretshiba
Street, Dichoko, Postmasburg. In the trial, this house was described as the
secondary crime scene. Lt -Col Magugu arrived to find several police officials and
vehicles at this house. He arrived just in time to witness three suspects being
removed from the ceiling of this house.

23. Lt-Col Magugu then subsequently learnt that when the police arrived at the
secondary crime scene, that three suspects fled and hid in the ceiling of that
house and that Katlego Moje, the plaintiff’s cousi n, fled out of the back door with
a certain Victor Might. Victor Might, it turns out was to be used as a witness in the
armed robbery criminal trial.

24. Bloodstained clothes were found in the dustbins at the said house. These clothes
matched the eyewitne ss descriptions given of those involved in the said armed
robbery.

25. The next day Lt -Col Magugu also learned that on the 30 April 2019 Katlego Moje,
the plaintiff’s cousin, was at the home of Victor Might in a security housing
complex belonging to Polomela Mines. The report was that Katlego Moje alighted
from the vehicle he had been travelling in and broke a window at Victor Might’s
house. Katlego Moje then returned to the vehicle, a KIA SUV and the car drove
off.

26. Lt-Col Magugu obtained this information from two witnesses, one a neighbour
Cecilia Van Der Westhuizen and the other a security guard employed at the
housing security complex. The security guard, Motsamai Clive Manere informed
Lt-Col Magugu that he got the information from Victor that Katlego Moje was on
his property and had broken a window at his house. Mr Man ere informed Lt -Col
Magugu that he observed that the person who was on Victor’s property le ft in the
pass enger seat of a silver KIA with registration number K[...].

27. Lt-Col Magugu testified that he had this information before the arrest of the
plaintiff, although the relevant written statements were only taken some time after
the arrest of the plaintiff.

28. Lt-Col Magugu traced the registration number of the said KIA motor vehicle and
found it was registered to the plaintiff, Private Panana Moje. He found out that the
plaintiff was staying in Dichoko not far from where the others were arrested at the
secondary crime scene. His investigators visited the plaintiff’s house for a couple
of days trying to get hold of the plaintiff.

29. Lt-Col Magugu te stified that he was looking for the plaintiff because Katlego Moje
fled the secondary crime scene with Victor Might and he suspected that plaintiff,
Panana Moje, might have assisted Katlego Moje to flee Postmasburg. The basis
for Lt -Col Magugu’s suspicion that the plaintiff might have assisted his cousin to
flee Postmasburg was not disclosed at this stage and it seems was only partially
confirmed after the arrest when Lt -Col Magugu interviewed the plaintiff. I say
partially confirmed because no basis was la id or established that prior to his
transporting his cousin to Pampierstad plaintiff knew his cousin was in fact fleeing
from the police.

30. Then Lt-Col Magugu testified that he learnt that the plaintiff was back in
Postmasburg and that he gave an instr uction to bring the plaintiff in for
questioning. Counsel for the defendant, Mr Davis, then asked Lt -Col Magugu
specifically whether he gave an instruction to bring the plaintiff in for questioning
or whether he gave an instruction to arrest the plaintiff. To which Lt -Col Magugu
responded that h e instructed W O Mangate to bring the plaintiff in for questioning
but that if it was possible to arrest the plaintiff, the plaintiff should be arrested.

31. Then Counsel for the defendant, Mr Davis, asked Lt -Col Magugu if he knew
whether the plaintiff wa s brought in for questioning or whether plaintiff had been
arrested. To which he responded that the plaintiff was brought in for questioning.
Lt-Col Magugu testified that he interviewed the plaintiff. That during such
interview plaintiff admitted that he drove Katlego Moje, his cousin, to Pampierstad
at the request of the said Katlego Moje. Plaintiff indicated during the said
interview that on the day of the relevant robbery he was in Dichoko,
Postmasburg. Plaintiff indicated during the said interview that he received a call
from his cousin Katlego to pick him up in the township, which he did and that he
took Katlego to Pampierstad that evening .

32. Lt-Col Magugu testified that the plaintiff could not explain why Katlego asked him
to take him to Pampiersta d that evening.

33. Lt-Col Magugu then testified that after the interview he then sought guidance
from the office of the Director of Public Prosecutions (the DPP) and that he was
advised by the office of the DPP to detain the plaintiff for armed robbery. Acting
on this advice the plaintiff was detained on a charge of armed robbery.

34. In his evidence -in-chief Lt-Col Magugu indicated that the plaintiff had applied for
bail and that it was refused. At this point Lt -Col Magugu testified that he cannot
recall why bail was refused as it was a long time ago.

35. Lt-Col Magugu testified that the plaintiff was not at the scene duri ng the actual
robbery concerned.

36. Mr Davis, Counsel for the defendant, asked Lt -Col Magugu in -chief why the
plaintiff was detained. To which Lt -Col Magugu answered due to the seriousness
of the crime.

37. A leading question was then put to Lt -Col Ma gugu by Mr Davis. This question
was to the effect that Sgt Mangate arrested the plaintiff, where is he (Mangate)
stationed? Mr Du Plessis, who appeared for the plaintiff did not object to this
question. Up to that point it had not been the direct evidence of Lt-Col Magugu
that W O Mangate had been the arresting officer in this matter. Lt -Col Magugu’s
answers had been ambiguous on t his aspect. In any event , in response to Mr
Davis’ leading question, Lt-Col Magugu’ s response was directed at the part of the
question dealing with W O Mangate being stationed at the Organised Crime
Branch in Kimberley with Lt -Col Magugu and he did not take the bait and left the
question as to who in fact effected the arrest of the plain tiff ambiguous at that
point of his evidence .

38. Lt-Col Magugu testified that he and his team remained in Postmasburg until all
the suspects were arrested.

39. Mr Davis asked Lt -Col Magugu when his team, including W O Mangate arrived,
whether they fam iliarised themselves with the docket and what the matter was
about. To which Lt -Col Magugu responded that yes that there would normally be
a briefing and that they were all aware that they were looking for the plaintiff.

40. Then, in -chief, Mr Davis asked Lt-Col Magugu whether the plaintiff was an
accused in the criminal trial relating to the relevant robbery. Lt -Col Magugu
responded , no, the charges against the plaintiff were provisionally withdrawn after
instructions from the Office of the DPP pending th e outcome of the criminal trial.
That concluded Lt -Col Magugu’s evidence in chief.

41. In cross -examination, Lt -Col Magugu confirmed the fourth suspect in the relevant
robbery was identified as Katlego Moje, the plaintiff’s cousin. That the information
provided at the briefing was that Katlego Moje drove a white BMW vehicle which
the suspects used to get away from the primary crime scene. That at that time
there was never a suspicion that any other black males were involved in the
robbery itself.

42. Lt-Col Magugu confirmed that at least one of the wounded suspects removed
from the ceiling of the secondary crime scene co -operated fully with the
investigation and made a statement about how the robbery was executed and
this statement made no mention of the p laintiff.

43. Lt-Col Magugu confirmed that at the secondary crime scene where three of the
suspects were arrested, he was informed that Katlego Moje, the plaintiff’s cousin,
had escaped through the back door with Victor Might when the police arrived on
the scene.

44. Lt-Col Magugu confirmed that Victor Might had aided the suspects in dressing
their wounds at the secondary crime scene, but that Victor Might was not a
suspect and was never arrested. Victor Might was interviewed and he gave a
statement, poss ibly before the arrest of the plaintiff, but he did not implicate the
plaintiff in any way.

45. Mr Du Plessis asked Lt -Col Magugu why Victor Might was not arrested in
circumstances where it was established that he assisted the suspects where in
the case of the plaintiff Lt -Col Magugu only had a suspicion that plaintiff had
assisted one of the suspects, his cousin Katlego, yet plaintiff w as arrested. Lt -Col
Magugu did not directly answer this question.

46. Lt-Col Magugu confirmed that Victor Might had not in any manner implicated the
plaintiff in the relevant robbery.

47. Lt-Col Magugu confirmed that a lady, an employee of the bank, one Joyce
Kubeta, was arrested for assisting those involved in the relevant robbery with
information. She was allowed out on bail and her bail was not opposed. She later
became a section 204 witness for the prosecution. Lt -Col Magugu confirmed that
she had not implicated the plaintiff in any way in respect of the relevant armed
robbery.

48. Mr Du Plessis asked Lt -Col Magugu if at the time of plaintiff’s arrest, there was
any inf ormation on oath linking the plaintiff to the robbery itself. Lt -Col Magugu
answered the plaintiff aided his cousin Katlego to flee knowing he was wanted.
Also, that according to the other suspects, the money was still with Katlego.

49. Mr Du Plessis then pressed the point that he was referring to the robbery itself in
his previous question. To which Lt -Col Magugu responded there was no
information linking the plaintiff to the main crime scene where the robbery
occurred, but that in his previous answer he was referring to the plaintiff aiding
his cousin Katlego.

50. Mr Du Plessis put to Lt -Col Magugu that the relevant charge in those
circumstances would be defeating the ends of justice. To which Lt -Col Magugu
responded that he asked for guidance from the o ffice of the D PP and that he was
directed to charge the plaintiff with armed robbery.

51. Mr Du Plessis then asked Lt -Col Magugu if at the time of the plaintiff’s arrest
there was any information that plaintiff had unlawfully and intentionally assaulted
anyone. To which Lt -Col Magugu responded that plaintiff was not at the main
crime scene where the robbery took place.

52. Mr Du Plessis then asked if there was any information that the plaintiff had
received any of the money being the proceeds of the robbe ry. Lt -Col Magugu
responded that the information at his disposal was that Katlego had the money
and that it was only the plaintiff and Katlego that fled from Postmasburg. Lt -Col
Magugu continued that he would not know if plaintiff received any of the money
because neither the plaintiff nor Katlego wanted to discuss the money. Clearly,
this statement that they did not want to discuss the money could only have been
obtained after the arrest of the plaintiff.

53. Mr Du Plessis then put to Lt -Col Magugu that in his evidence -in-chief he did not
state that the plaintiff transported Katlego with the money as a reason for the
arrest. To which Lt -Col Magugu responded that he maintains it now because Mr
Du Plessis asked. In the context of the fact that if he had such information that
plaintiff knew of the robbery and that he was assisting Katlego to evade arrest
with the money it would certainly be a basis for a reasonable suspicion that
plaintiff was involved in a schedul e 1 offence, such answer in the present context
is simply not reasonable and nor is it credible in the circumstances disclosed to
this court . If Lt-Col Magugu had such information on or before plaintiff’s arrest , it
would clearly have been front and centra l to his evidence in chief , which it was
not.

54. Mr Du Plessis then asked Lt -Col Magugu if there was any evidence that plaintiff
knew what his cousin Katlego did. To which Lt -Col Magugu replied that he
wouldn’t know if plaintiff knew what Katlego did. This is at odds with Lt -Col
Magugu’s answer to the previous question.

55. Lt-Col Magugu confirmed that after his arrest plaintiff co -operated with him.

56. Mr Du Plessis put it to Lt -Col Magugu that after plaintiff was informed of his rights
and prior to his warning statement and despite plaintiff electing to have legal
representation plaintiff voluntarily informed him that his cousin Katlego told
plaintiff a nd he requested to be taken to Pampierstad. Lt -Col Magugu confirmed
this to be correct.

57. Mr Du Plessis then put to Lt -Col Magugu that during his interview with the
plaintiff, plaintiff told him that he (the plaintiff) had no knowledge of Katlego’s
involvement in the robbery. Lt -Col Magugu disputed this saying he asked the
plaintiff that question but that that was not the plaintiff’s reply. Mr Du Plessis then
asked Lt -Col Magugu what was plaintiff’s reply. Lt -Col Magugu’s response was
evasive of Mr Du Pl essis original line of question ing regarding plaintiff’s
knowledge of his cousin Katlego’s involvement in the robbery. Finally, on this
aspect Lt -Col Magugu asserted that the plaintiff told him that his cousin Katlego
said to him that something had happene d and that he needed to get to
Pampierstad and that plaintiff did not mention any emergency. This is at odds
with Lt -Col Magugu’s response to a proposition put to him by Mr Du Plessis only
a few minutes prior to this assertion.

58. Lt-Col Magugu again ass erted that he was in Postmasburg the whole time since
the date of the robbery. The relevance of this will manifest itself when I deal with
the evidence of Lt -Col Witbooi.

59. Lt-Col Magugu confirmed that he was aware that at the material time the plaintif f
was employed. Lt -Col Magugu also confirmed that the plaintiff had voluntarily
surrendered his cell phone.

60. Mr Du Plessis put it to Lt -Col Magugu that the plaintiff handed over his cell phone
to prove that plaintiff had no knowledge of Katlego’s invol vement in the robbery or
what happened in the robbery. To which Lt -Col Magugu responded he would not
be able to say if plaintiff knew or did not know of his cousin Katlego’s involvement
in the robbery or what happened in the robbery.

61. Mr Du Plessis then asked Lt -Col Magugu if he found anything on the plaintiff’s
cell phone. To which Lt -Col Magugu responded that he found nothing
incriminating the plaintiff on the said cell phone .

62. Mr Du Plessis then referred to page 248 in the plaintiff’s trial bundle, which is a
copy of the charge sheet, which shows that the plaintiff was charged with robbery
with aggravating circumstances. Mr Du Plessis then asked Lt -Col Magugu
whether he agreed t hat plaintiff should be linked to a fair degree before the
plaintiff was charged with robbery with aggravating circumstances. To which Lt -
Col Magugu responded that plaintiff had aided a person to flee with the money.
Given the seriousness of the matter for him that was enough and that he was
advised to charge the plaintiff with the robbery by the office of the DPP .

63. Mr Du Plessis asked Lt -Col Magugu if the office of the DPP gave advice to arrest
the plaintiff. To which Lt -Col Magugu responded when he con tacted the office of
the D PP the plaintiff had already been arrested and that the office of the DPP
advised that the plaintiff should be charged with the offence set out in the charge
sheet.

64. Then Mr Du Plessis asked Lt -Col Magugu who decided to arrest the plaintiff. To
which Lt -Col Magugu responded that the arresting officer would come and
explain that to the court.

65. Lt-Col Magugu confirmed that at the time of the arrest he only had verbal
statements from the neighbour and the security guard alread y referred to and that
the written statements came after the arrest of the plaintiff.

66. Lt-Col Magugu confirmed that in terms of the SAPS Standing Order G341 that
arrest without a warrant should be used as a last resort.

67. Lt-Col Magugu confirmed tha t he received information the day after the robbery
relating to plaintiff’s involvement in transporting his cousin Katlego. In the context
of Lt-Col Magugu’s evidence viewed holistically, this can only relate to the plaintiff
transporting his cousin Katleg o to the house of Victor Might because Lt -Col
Magugu testified earlier that it was only after his interview with the plaintiff that he
was informed that plaintiff transported Katlego Moje to Pampierstad.

68. Lt-Col Magugu was asked if at the time of the r obbery he was a Captain. The
response to this question left this court in the dark as to what the factual position
was at the material time. Lt -Col Magugu responded: “Let me correct that currently
I hold the rank of Lt -Col.” Then Mr Du Plessis put to Lt -Col Magugu as a senior
officer he could have issued the warrant of arrest. Lt -Col Magugu responded that
no, only a full Colonel can sign a warrant of arrest.

69. My understanding of the law in this regard is that any commissioned officer in the
SAPS can iss ue a warrant of arrest, but the practice is that such officer should
not issue a warrant in a matter in which they are directly involved.

70. Then there was a line of questioning relating to the surrender of the plaintiff’s cell
phone. Lt -Col Magugu could not confirm that the said cell phone was handed to
Lt-Col Witbooi on the 1 May 2019. He could also not confirm that the plaintiff
surrendered his cell phone before his arrest and his position was that the
surrender of such cell phone may have been handled by one of the other
investigators on the investigation team. Lt -Col Magugu’s position was that at the
time of plaintiff’s arrest he did not kn ow that there was nothing on the said cell
phone to incriminate the plaintiff.

71. Then Mr Du Plessis put to Lt -Col Magugu that his evidence in chief was that he
instructed W O Mangate to bring the plaintiff in for questioning and if it was
possible to ar rest plaintiff to do so. Mr Du Plessis also put it to Lt -Col Magugu that
plaintiff was arrested after his interview with Lt -Col Magugu. To which Lt -Col
Magugu responded that he did not know if plaintiff was arrested at plaintiff’s
house and that the arrest ing officer would be able to answer that question.

72. In response Mr Du Plessis put to Lt -Col Magugu that he was the investigating
office in the relevant case. The implication being that in those circumstances Lt -
Col Magugu should know the answer to the preceding question. To this Lt -Col
Magugu responded that although he was the lead investigator he did not do
everything and that they worked as a group.

73. Then Mr Du Plessis put to Lt -Col Magugu that even if the plaintiff was arrested
before his intervi ew with Lt -Col Magugu that Lt -Col Magugu would have
condoned the plaintiff’s arrest. Lt -Col Magugu confirmed this as being correct.

74. Mr Du Plessis then put to Lt -Col Magugu that this would have been the position
irrespective of whether he conducted an interview with the plaintiff. Lt -Col
Magugu responded yes based on the information he had at hand.

75. Mr Du Pl essis then put to Lt -Col Magugu that the criminal charges against the
plaintiff were withdrawn on the 12 November 2019. Lt -Col Magugu confirmed that
the criminal charges against the plaintiff were withdrawn but said he could not
recall the date.

76. Mr Du Plessis asked, if as the investigating officer he knew the reason for the
withdrawal of the criminal charges against the plaintiff. Lt -Col Magugu responded
that the charges were provisionally withdrawn against the plaintiff pending th e
outcome of the crim inal trial.

77. Mr Du Plessis then put to Lt -Col Magugu that it was the plaintiff’s version that he
was informed in court that the charges were withdrawn because there was no
evidence linking him to any of the events related to the relevant robbery. Lt -Col
Magugu responded that, that is the plaintiff’s version.

78. An exchange then followed as to whether there was an official notice from the
DPP relating to the withdrawal of those charges and whether there was
documentary evidence of this. In the present circumstances this does not take
the matter further and will no t play a part in the reasoning of this court. For
present purposes it is sufficient that all parties agree that the charges were
withdrawn and this court can draw its own inferences from that fact.

79. The plaintiff’s version was put to Lt -Col Magugu in s ome detail. Plaintiff elected
not to testify so his version in so far as it conflicts with the evidence adduced on
behalf of the defendant is not evidence before this court. On plaintiff’s version he
was arrested at his home on the 4 May 2019 which is cons istent with most of the
evidence adduced on behalf of the defendant.

80. In substance that was the evidence of Lt -Col Magugu. The second witness called
by the defence was Col Witbooi. It appears from the evidence given by Col
Witbooi that the main reason he was called as a witness for the defendant was to
rebut the plaintiff’s version as it was put to Lt -Col Magugu. As plaintiff did not
testify himself and plaintiff’s version is not evidence before this court, most of Col
Witbooi’s evidence will not assist this court to determine if the defendant has
established the four jurisdictional requirements necessary to justify a defence
under section 40(1)(b) of the CPA. Col Witbooi’s evidence might be useful in
assessing the reliability and credibility of the evid ence of Lt -Col Magugu.

81. Col Witbooi gave a description of what happened a t the secondary crime scene
and testified that Lt -Col Magugu arrived at the secondary crime scene while it
was still an active crime scene. Col Witbooi testified that he kept cont act with Lt -
Col Magugu during the investigation of the said armed robbery. Col Witbooi
testified that Lt -Col Magugu arrived in Postmasburg on the same evening as the
robbery, but that Lt -Col Magugu was in and out of Postmasburg during the said
investigatio n. This is at odds with the evidence of Lt -Col Magugu whose evidence
was to the effect that he remained in Postmasburg until all the suspects were
arrested and placed in custody.

82. Col Witbooi confirmed that the Organised Crime Unit took over the invest igation
and they ran all the activities related to the investigation and that he never
received a cell phone from the plaintiff.

83. The first time Col Witbooi met the plaintiff was at the magistrate’s court at some
stage during the criminal trial. Col Wi tbooi confirmed that he had no involvement
in the physical investigation of the relevant robbery.

84. Col Witbooi did not know when the criminal charges were withdrawn against the
plaintiff.

85. Col Witbooi confirmed that in the SAPS Captains and Colonel s are
commissioned officers. Col Witbooi confirmed that commissioned officers can
issue a warrant of arrest and that at the time as a Captain, Lt -Col Magugu could
in fact issue a warrant of arrest. This is a direct contradiction of Lt -Col Magugu’s
evidence .

86. Col Witbooi confirmed that at the secondary crime scene when three of the
suspects were arrested there were police armed with assault rifles. That even
when the suspects were transported to and from court the escourts were armed
with R5 assault rifles. Tha t in serious cases such as the relevant robbery it was
routine to have people armed with such weapons.

87. The final witness called by the defendant was W O Stefaans Mangate. He is a
warrant officer in the provincial organised crime unit of the SAPS. At t he time of
the relevant robbery, he worked on what was described as the Trio crimes which
inter alia involved armed robbery, business and house robbery as well as
kidnapping.

88. W O Mangate was on duty on the 30 April 2019. On that evening, he received a n
order to be at Postmasburg on the 1 May 2019 to be part of the team to
investigate an armed robbery. They drove thr ough to Postmasburg and met Lt -
Col Magugu at a guesthouse. Where Lt -Col Magugu explained the case to them.

89. W O Mangate said they were told that one of the suspects worked at the mine
and they should check if he was at work. They were referring to Katlego Moje’s
cousin who they would like to question , being the plaintiff in this matter . At this
point it needs to be noted t hat W O Mangate referred to the plaintiff’s cousin
interchangeably as Katlego or Kagiso Moje, from the context it is clear that this
referred to the same person and the discovered documents confirmed that he
bore both of the said forenames .

90. W O Manga te testified that they looked for Katlego Moje’s cousin at his place of
work but the feedback they were given was that he was not at work. It appears
that this took place on the 1 May 2019, being a public holiday.

91. W O Mangate testified that he tested the registration number of the KIA motor
vehicle and found it was registered to P.P. Moje. Although at the time of his
evidence W O Mangate could not remember the relevant vehicle registration
number apart from the fact that it ended in NW indicating the v ehicle was
registered in the North -West Province.

92. W O Mangate testified that he got such registration number from Lt -Col Magugu
who informed him that he had got the said registration number in a statement
from a witness.

93. W O Mangate testified that after he got the registration number Lt -Col Magugu
asked him to check if the plaintiff was at work. This aspect has already been dealt
with above.

94. W O Mangate testified that he and his partner did not work during the dayligh t
hours of the 4 May 2019, that they only went on duty that evening. That Lt -Col
Magugu contacted them and asked them to be on the lookout for the plaintiff and
his cousin Katlego . W O Mangate’s evidence was that they then did patrols in the
environs of Po stmasburg and its surroundings. Then at some point during their
patrols Lt -Col Magugu contacted them and told them that he had received
information that the plaintiff is at his home.

95. W O Mangate then testified that they then drove to the plaintiff’s residence and
they found a man who at that time was unknown to him. He introduced himself to
that person and explained the reason why he was at his residence at that time.
The said man introduced himself to him as Private Panana Moje, the plaintiff, he
stood in the door of his house and was wearing a white vest with a blue overall
that had yellow stripes just above the knees.

96. W O Mangate then testified that he informed the plaintiff that he was going to
arrest him on a charge of armed robbery. W O Mang ate testified that he
explained the rights of a person being arrested to the plaintiff. He then loaded the
plaintiff in the vehicle they were using at the time and took him to the police
station where the plaintiff was handed to Lt -Col Magugu for questioni ng.

97. W O Mangate testified that after Lt -Col Magugu had questioned the plaintiff , Lt-
Col Magugu handed the plaintiff back to him. He then proceeded to the charge
office with the plaintiff to obtain a form 14A. W O Mangate explained that a form
14A was a formal notice to the plaintiff of the rights he has under the constitution
on being arrested.

98. After the form 14A was completed W O Mangate handed a copy of the said form
together with his own statement to Lt -Col Magugu and took the plaintiff to the
cells.

99. W O Mangate testified that Lt -Col Magugu told him that Kagisho (Katlego) Moje
was part of the relevant robbery and that plaintiff took him away before the police
could arrest him (Katlego). This is at odds with the evidence of Lt -Col Magugu,
which was to the effect that he only obtained the information that plaintiff had
taken his cousin Katlego to Pampierstad during his interview with the plaintiff.

100. W O Mangate testified that the docket was available when the investigating
team had meeti ngs with Lt -Col Magugu. He stated that he had read the docket
before he arrested the plaintiff. He stated that there were statements of the police
involved as well as other statements in the docket at the time. From the contents
of the docket, he had estab lished that the plaintiff was not at the primary crime
scene. In respect of the secondary crime scene W O Mangate testified he was
not sure if the plaintiff collected his cousin from the secondary crime scene or if
plaintiff’s cousin went to plaintiff’s ho use.

101. W O Mangate then said that the information he had at his disposal before the
arrest of the plaintiff, he had obtained from Lt -Col Magugu.

102. W O Mangate then testified that he had seen the statement of Victor Might to
the effect that someone told him that the plaintiff’s vehicle was at his residence.
However, the s tatement of Victor Might was only taken on 5 June 2019 after the
arrest of the pl aintiff . Also , such statement does not correspond with W O
Mangate’s earlier evidence .

103. Mr Davis then asked W O Mangate to confirm his earlier testimony that he
received a call from Lt -Col Magugu to arrest the plaintiff and Mr Davis asked W O
Mangate if Lt-Col Magugu told him on what charges the plaintiff was to be
arrested. To which W O Mangate responded that Lt -Col Magugu told him to arrest
the plaintiff on a charge of armed robbery. This is at odds with Lt -Col Magugu’s
evidence that he was only adv ised by the DPP’s office of the charge to be
preferred against the plaintiff after his interview with the plaintiff.

104. Then Mr Davis asked W O Mangate given the fact that he had established
that the plaintiff was not at the primary crime scene where t he robbery took place
why did he believe it was appropriate to arrest the plaintiff on a charge of armed
robbery. To which W O Mangate responded that Lt -Col Magugu informed him that
he had contacted the Office of the DPP who allegedly advised Lt -Col Magugu
that the plaintiff should be charged with armed robbery. Clearly, this cannot be
correct for the reason already set out in the preceding paragraph.

105. W O Mangate then testified due to the seriousness of the armed robbery he
held the plaintiff.

106. Mr Davis asked W O Mangate if he considered charging the plaintiff and
releasing him to a court date. To which W O Mangate replied that the
Investigating Officer had to take the decision as to what to do with the plaintiff
after his arrest.

107. Mr Davis asked W O Mangate why he believed the plaintiff had genuinely
committed a crime. To which W O Mangate responded because the plaintiff
moved his cousin from the vicinity to a destination that was unknown to him at the
time he gave evidence. As indi cated above, this could not have played a role in
W O Mangate’s decision to arrest plaintiff because on the evidence of Lt -Col
Magugu, which W O Mangate concedes was his only source of information
relevant to the arrest of the plaintiff, Lt -Col Magugu only found out that plaintiff
had removed his cousin Katlego from Postmasburg after interview with the
plaintiff, which interview on W O Mangate’s evidence only took place after the
arrest.

108. W O Mangate testified that during the arrest of the plaintiff, h e asked the
plaintiff for his cell phone which the plaintiff voluntarily surrendered to him and
granted W O Mangate permission to scroll through the information stored on that
phone. W O Mangate found that the call log and the messages file were empty.
After scrolling through the said phone’s memory, he placed the phone in an
evidence bag and handed it to Lt -Col Magugu. This is at odds with the evidence
of Lt-Col Magugu on this aspect.

109. W O Mangate testified that at a certain time Katlego Moje, in the company of
an advocate representing him, handed himself over to W O Mangate.

110. Mr Davis then asked W O Mangate if he had any reason not to give effect to
the command of Lt -Col Magugu to arrest the plaintiff. To which W O Mangate
responded he had no rea son not to carry out such order.

111. Mr Davis then asked W O Mangate if he had any reason not to arrest the
plaintiff based on the information given to him by Lt -Col Magugu. To which W O
Mangate responded he had every confidence in Lt -Col Magugu.

112. Mr Davis then asked W O Mangate based in the information given to him by
Lt-Col Magugu and the information contained in the docket did W O Mangate
have a suspicion that a crime had been committed by the plaintiff. To which W O
Mangate responded yes, he prev ented the police from arresting his cousin.
Whether this constituted a schedule one offence was not canvassed by the
defendant in leading the evidence of W O Mangate. For that matter neither of the
other two defence witnesses canvassed this question.

113. This concluded the evidence in chief of W O Mangate. Mr Du Plessis
commenced his cross -examination by asking at what time did he and the others
who had travelled to Postmasburg from Kimberley arrive at the guesthouse in
Postmasburg where the first meeting was held on 1 May 20 19. W O Mangate
replied that they had left Kimberley at 7am and they arrived at the said
guesthouse between 10 and 11 that morning.

114. W O Mangate testified that it was during this first meeting that Lt -Col Magugu
informed them that he had certain statements and had to collect others. Mr Du
Plessis asked him if Lt -Col Magugu had informed them that he had statements
that connect the plaint iff to the robbery. W O Mangate did not answer this
question directly, he simply repeated that Lt -Col Magugu had received
information and had to fetch certain statements. This answer did not deal with the
central enquiry inherent in Mr Du Plessis’ question .

115. Mr Du Plessis asked W O Mangate if on the 1 May 2019 Lt-Col Magugu
informed him that he had statements linking the plaintiff to the robbery. In
response to this question W O Mangate said yes Lt -Col Magugu did inform them
he had statements linking the plaintiff to the relevant robbery.

116. W O Mangate said he did not have sight of these statements and that he had
only read the statement of Victor Might. From the discovered documents it
emerges that the statement of Victor Might is dated 5 June 2019, quite some time
after the plaintiff’s arrest and so could n ot have played a role in the decision to
arrest the plaintiff. It also calls into question W O Mangate’s testimony that he had
read the statement of Victor Might before the arrest in question.

117. Mr Du Plessis put to W O Mangate that Lt -Col Magugu relie d on two persons
whose statements linked the plaintiff to the relevant crime, namely Cecilia Van
Der Westhuizen, whose written statement is dated 21 September 2019 and
Motsamai Clive Manere whose statement is dated the 5 May 2019. W O Mangate
answered that Lt-Col Magugu can be correct, but he was constrained to admit
that he did not read those two statements before the arrest of the plaintiff.
However, he said he remembers that on the night of the 1 May 2019 Lt -Col
Magugu mentioned Cecilia.

118. W O Mangat e confirmed that the plaintiff was arrested on the 4 May 2019
before either of the written statements of Van Der Westhuizen or Manere existed.

119. W O Mangate confirmed that in his evidence in chief that he testified that he
relied upon both the contents of the docket and the instructions of Lt -Col Magugu.
However, W O Mangate was forced to admit under cross -examination that the
contents of the docket did not link the plaintiff to the relevant robbery . W O
Mangate testified that he informed the plaintiff that the reason for his arrest was
that his cousin was involved in a robbery and he had removed his cousin from
Postmasburg to avoid arrest. W O Mangate could not answer the question when
it was pointe d out to him that neither the statement of Van Der Westhuizen nor
that of Manere stated that plaintiff removed Katlego from Postmasburg. He was
further forced to admit that the information provided to him by Lt -Col Magugu on
1 May 2019 was not supported by the statements that were eventually placed on
the docket .

120. W O Mangate admitted that he effected the arrest of the plaintiff on the
strength of an order from Lt -Col Magugu. Mr Du Plessis pressed W O Mangate
as to whether he had a choice to arrest or not, to which W O Mangate responded
that he had a choice and that he arrested the plaintiff based on the information at
his disposal.

121. W O Mangate testified that the plaintiff was not considered armed and
dangerous the only connection being that he he lped his cousin.

122. At this point it is apposite to point out that W O Mangate did not impress as a
witness. He gave contrived explanations as to the dates on the statements
referred to above. He at times did not answer questions directly and he was als o
not above tailoring his answers to try and deal with the difficulties he found
himself in under cross -examination.

123. That is substantively what emerged from the cross -examination of W O
Mangate.

124. Turning now to consider the four jurisdictional facts required to be established
for a defence based on section 40(1)(b) of the CPA. Firstly, both Lt -Col Magugu
and W O Mangate agree that it was in fact W O Mangate who was the arresting
officer. It is common cause between the plaintiff and the defendant that W O
Mangate is a peace officer in the sense contemplated by section 1 of the CPA.
Accordingly, the first jurisdictional fact is established.

125. The second jurisdictional fact is intertwined with the fourth jurisdictional fact,
because for the purp oses of section 40(1)(b) of the CPA the only suspicion that is
relevant is one that is based on reasonable grounds. Both Lt -Col Magugu and W
O Mangate testified that they suspected that plaintiff had aided his cousin.
Whether this suspicion was based on re asonable grounds or not will be
considered later in this judgment.

126. The third jurisdictional fact to be established by the defendant must be that
the suspect, in this case the plaintiff is suspected of committ ing an offence which
is referred to in Schedule 1 of the CPA.

127. What the evidence of Lt -Col Magugu and W O Mang ate establishes is that the
information prior to the arrest of the plaintiff available to them was that a vehicle
whose registration number was traced back to the plaintiff was seen transporting
the plaintiff’s cousin Katlego Moje to and from the house of Victor Might in
Postmasburg. This was the only information available to them on which a
suspicion could be formed. Both Lt -Col Magugu and W O Mangate confirmed in
their evidence that the plaintiff could not be linked to the principal crime scene
where the relevant robbery occurred.

128. At most on these facts the plaintiff could have only committed the crime of
being an accessory after the fact or possibly obstructing the course of justice.
Neither of those crimes are specifically included in Schedule 1 of the CPA. In
these circumstances such crimes can only be considered a Schedule 1 offence if
the defendant can estab lish that there are reasonable grounds to believe that if
convicted the plaintiff would have been sentenced to a sentence exceeding six
months imprisonment without the option of a fine. The defendant did not even
attempt to deal with this aspect which is r equired by the defence raised by the
defendant.

129. The defendant tried to avoid this question inherent in this third jurisdictional
fact by referring to the advice allegedly received from the office of the DPP. The
advice allegedly given by the office o f the DPP was to charge the plaintiff with
armed robbery. There are several difficulties and problems inherent in the
defendant’s version of this alleged advice from the office of the DPP. The first and
most glaring problem for the defendant is that on the evidence of Lt -Col Magugu
he only phoned the office of the DPP after plaintiff had been arrested on the
evidence of W O Mangate. Accordingly, this advice from the DPP could not have
been available when the plaintiff was in fact arrested.

130. Although Lt -Col Magugu was initially ambiguous as to whether the plaintiff
was arrested before or after his interview of the plaintiff, later in his evidence he
said that the time and circumstances of the arrest would be facts known to the
arresting officer. Lt-Col Magugu’s evidence on this point was that W O Mangate
was the arresting officer. W O Mangate was adamant in his evidence that the
arrest took place before the plaintiff was interviewed by Lt -Col Magugu.

131. The alleged advice from the office of the DPP is problematic on several
different levels. Lt -Col Magugu does not disclose who he allegedly talked to at
the office of the DPP. Then the earliest he could have phoned the office of the
DPP would have been afte r 11pm on the night of 4 May 2019. It is inherently
improbable that he would find anyone at the office of the DPP at that hour. If the
office of the DPP was phoned the next day during business hours it is more
problematic for the defendant as it is then fu rther removed from the actual arrest.

132. Finally, Lt -Col Magugu testified that the charges were withdrawn against the
plaintiff by the representative of the DPP who ran the criminal trial. This must
have taken place prior to the plaintiff being asked t o plead to the charge,
otherwise plaintiff would have been entitled to a verdict. Lt -Col Magugu’s
evidence was the charges were provisionally withdrawn pending the outcome of
the criminal trial. There is only one credible reason why a prosecutor would
withdraw charges in those circumstances.

133. All of this shows that the alleged advice from the office of the DPP was
nothing more than a red herring obtained ex post facto that was drawn across
this courts path several times to confuse and obfuscate rather than establish a
bona fide defence.

134. Clearly, there was no credible evidence available on the evidence of both Lt -
Col Magugu and W O Mangate to suspect that plaintiff had committed a schedule
1 offence. When asked about this both witnesses simply ref erred to the
seriousness of the offence. This could only have been a reference to the robbery
itself. However, both witnesses were unable to link the plaintiff to the robbery
itself and admitted that plaintiff was not on the scene of the robbery and they
admitted that they had no grounds to believe the plaintiff received any of the
proceeds of the robbery. The high -water mark of the information that they
eventually obtained against the plaintiff, even if it was obtained after the arrest
was that plaintiff t ook his cousin Katlego to Pampierstad after the robbery. As
already set out above this in and of itself does not establish that a Schedule 1
offence might have been committed by the plaintiff. In the circumstances, the
defendant, on whom the onus rests , has failed to establish the third jurisdiction al
fact.

135. Turning now to the fourth jurisdictional fact which the defendant needs to
establish to rely on the defence contemplated by section 40(1)(b) of the CPA
being that the suspicion entertained rests on reasonable grounds. On the facts of
this case, all the concerns raised in respect of the third jurisdictional fact set out
above apply equally to the fourth jurisdictional fact that must be established by
the defendant. In these circumstances, it cannot b e said that the suspicion
entertained by either of the defendant’s witnesses rested on objectively
reasonable grounds. In these circumstances, the defen dant has failed to
establish the fourth jurisdictional fact.

136. Insofar as the discretion of the arresting officer might be relevant in these
circumstances, it is clear from the evidence of W O Mangate that he simply
carried out an instruction given by Lt-Col Magugu. There is no evidence that W O
Mangate made any attempt to exercise a discretion of his own as to whether in
the circumstances he should effect an arrest. In these circumstances, clearly W O
Mangate did not exercise a discretion at all.

137. For all of these reasons this court concludes that the defendant has not
established that the arrest of the plaintiff was lawful as contemplated in section
40(1)(b) of the CPA. Accordingly, such arrest was unlawful and the defendant is
liable to pay damag es to the plaintiff in respect of such unlawful arrest.

138. It follows from the unlawful arrest that the detention is also unlawful. As can
be seen from the extract of the pleadings quoted above, the plaintiff pleaded that
the present defendant being the Minister of Police was responsible both for his
unlawful arrest and unlawful detention up until 16H00 on the 12 November 2019.
As can also be seen from the extract of the pleadings quoted above the
defendant effectively denied the allegation that defendan t was detained until the
date and time set out above.

139. Defendant accepted the onus in the pre -trial conference to prove the legality
of both the arrest and the detention. This is consonant with what the law requires.
The plaintiff pleads he was detain ed until 12 Nov ember 2019 . Defendant in his
plea admits detention and denies the remaining allegations in para graph 6 of the
Particulars Of Claim. The plaintiff gives no evidence to confirm such date . The
defendant does not concede it. The defendant on whom the onus rests also
adduces no evidence to show when the plaintiff was brought before a magistrate
who authorised the further detention. The detention would be lawful from the time
a court authoris es it.16 There is a further difficulty we know there was a bail
application which was refused. However, we also do not know the date of the bail
application. Nor do we know if it was opposed on reasonable grounds.

140. The upshot of this is that both the plaintiff and the defendant are guilty of
lapses in the way both prepared and presented their respective cases. The
defendant argues that it was never plaintiff’s case that he was not brought before
court within 48 hours t herefore Mr Davis argues I should only find the detention
unlawful for 48 hours beyond the arrest. The defendant cannot shift the onus in
this manner, it was and remains incumbent upon the defendant to adduce
evidence that the plaintiff was indeed brought before court at a specified date and
time and that the further detention was indeed authorised by the court.

141. By the same token the plaintiff knew that the date and time of the plaintiff’s
release was placed in dispute in the pleadings , plaintiff ought to have placed
some evidence before the court to substantiate this. This p laintiff failed to do.
Even though meri ts have been separated from the quantum by agreement this
court is trapped and has to consider the merits in regard to the duration of the
unlawful detention of the plaintiff. In these circumstances this matter could not
simply be decided on where the onus lay.

142. The remaining issue is the issue of costs. The plaintiff was substantially
successful and there is no reason to deprive the plaintiff of his costs. Considering
the nature of the claim and the issues raised , in my view scale B is the
appropriate scale on wh ich costs should be ordered.

143. Plaintiff also asks this court to award the costs of the postponement on the 14
and 15 March 2023. However, I see from the relevant order that those costs were
ordered to be in the cause.

In the circumstances the followi ng order is made:


16 Sekhoto., above., at para [42].
1) The arrest of the plaintiff was unlawful.
2) The subsequent detention of the plaintiff was also unlawful.
3) The duration of the unlawfulness of the subsequent detention is to be
determined at the proceedings to establish the quantum o f the plaintiff’s claim.
4) The defendant shall pay the established or agreed damages flowing from the
said unlawful arrest and detention .
5) The defendant shall pay the party -and-party costs up to this point on scale B.
6) The proceedings in relation to t he quantum of plaintiff’s claim are postponed
sine die for a date to be arranged with the registrar.


_________________
L. G. Lever
Judge
Northern Cape Division, Kimberley


Representation:

For the Plaintiff: ADV H C DU PLESSIS
Instructed by: C/O PGMO ATTORNEYS INC

For the Defendant: MR C D AVIS
Instructed by: OFFICE OF THE STATE ATTORNEY

Date of Hearing: 26 February 2024
Date of Judgment: 30 May 2025