IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 1838/2017
In the matter between:
KEDIBONE SIPHO NGOBENI Plaintiff
And
MINISTER OF POLICE Defendant
JUDGMENT
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
(4) Date: 21 May 2025
Signature: _
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NYATHI J
A. Introduction
[1] This is an action for damages against the defe ndant arising from an incident on
the 21 April 2014 at Mamelodi Township in Pretoria when the plaintiff was
allegedly unlawfully arrested without a warrant, detained and assaulted by
members of the South African Police Service (“the SAPS ”).
[2] At the commencement of the trial , the plaintiff’s counsel Ms. Nako raised a
preliminary issue of condonation for the plaintiff’s non -compliance with the
requirement of serving the defendant and its legal representative with a notice in
terms of section 3 (1) of the Institution of Legal Proceedings against Certain
Organs of State Act 40 of 200 2. The defendant’s counsel did not object , and
condonation was granted by the court.
[3] The common cause facts between the parties were that:
3.1 on 21 April 2014, the plaintiff was arrested without a warrant by
members of the SAPS acting within the course and scope of
their employment with the defendant on a charge of being in
possession of a substance suspected to be drugs; and
3.2 the plaintiff was subsequently detained until the 23rd of April
2014.
[4] The plaintiff’s case is that :
4.1 the arrest and subsequent detention were unlawful ;
4.2 he was assaulted by the arresting officers and sustained various
injuries such as facial lacerations , a facial fracture, his upper and
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lower lips was swollen and bruised, a head injury and that he
suffers from impotence as a result of the injuries.
4.3 He subsequently opened a case of grievous bodily harm against
the arresting officers.
[5] The defendant has pleaded that the plaintiff was lawfully arrested in terms of
section 40(1) (a) read with section 40(1)(h) of the Criminal Procedure Act 51 of
1977 (“the CPA”), alternatively, section 40(1) (b) of the CPA. During the trial, the
defendant denied the assault and submitted that at the time when plaintiff was
arrested , there was reasonable cause to do so. He was found in possession of
dagga.
B. The plaintiff testified under oath as follows:
[6] Two police officers being Mampane and Nkosi came to his shack. They were
travelling in a Hyundai bakkie accompanied by his wife and one Bennet. Sgt
Nkosi said they were accompanying his wife to collect household goods. His wife
is Lucy Maphoto. He assisted h er to collect the goods as the police officers said
that they could not enter the shack. When they were done and were about to
leave , he asked Nkosi for a protection order . Nkosi said the plaintiff should rather
come with them i f he want s to see where his wife now s tays. The plaintiff’s wife
was in the front cab of the Hyundai while the plaintiff was at the back with the
goods. The police were driving ahead of them in a state -owned van. Along the
way both vehicles came to a halt and N kosi and Mampane ordered everybody
to alight.
[7] At that point the plaintiff went to buy food at a Chisanyama ( a place at which
braaied meat is sold ). At that moment a second police van arrived. The plaintiff
then realized that things were about to get bad and jumped over a fence and ran
away.
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[8] The plaintiff was apprehended by two police officers at the yard of a certain
household. He did not sustain injuries when he ran, he got hurt when the police
caught him and assaulted him. The lady at the said household saw him and the
police who were looking for him. The lady pointed him out to the police. Nkosi
and Mampane apprehended the plaintiff and hit him with fists and open hands.
Nkosi picked up a brick and hit him on his head with it.
[9] The plaintiff was feeling weak, yet the police officers started kicking him with
booted feet. They loaded him onto a van and drove away with him. He thought
that they were taking him to a police station. The plaintiff does not know the
people of the community who witnessed the assault on him. The name of the
lady at the household where he was arrested is Germinah or Wilhemina.
[10] The police officers took him to a plot at what is now a cross -road to Cullinan and
Kwa Mhlanga. They alighted from the two police vans being Constables Nkosi
and Mampane and two others. Nkosi produced a hosepipe and a wire and
ordered the plaintiff to remove his belt from his waist. Nkosi then hit him with the
belt, striking him with the buckle , kicked him and hit him w ith open hands. The
plaintiff sustained injuries to his head, eye, chest and private parts because one
of the officers st omped on his privat e parts.
[11] Constable Nkosi picked up a stone and struck him with it on his head, he thinks
he has a scar from this blow. After the assault, he was taken to a police station .
He did not receive any medical treatment before being taken to the police station
even though he was bleeding . He was detained for three days being: Monday,
Tuesday and Wednesday , when he appeared in court. He was called out and
taken to court where he was told that his case has been withdrawn. He was the n
released without appearing before a Magistrate. He was taken from the holding
cells and told to go.
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[12] The plaintiff alleged that he tried to open a case but was not assisted by the
police. He insisted and a case was eventually opened . That matter was never
taken to court up to now.
[13] The plaintiff was shown a sworn statement by his erstwhile attorney , but denied
that it was made by him or on his behalf.
[14] He alleged that a statement was taken from him by one Sergeant Makhura some
two or three days after he was released. He was not informed of his
Constitutional rights .
[15] He eventually received treatment for his injuries at Steve Biko and Johannesburg
Hospitals after he was released from detention. The injuries have affected him
and his work life. He sometimes fails to go to work due to bodily aches and pains
and his private parts are sometimes sore.
[16] On his version, the plaintiff disputed that any dagga was ever found at his house,
and he further testified that he refused to sign the notice of rights due to fact that
he disputed the charge of possession of dagga that was reflected therein . He
stuck to this narrative even under cross -examination.
[17] This concluded the pla intiff’s case.
C. The defendant’s version of events
[18] Sergeant Pontsho Kobane Mampane was a constable stationed at Mamelodi
East police station in 2014 assigned with duties of crime prevention , visible
policing, patrol and attending to complaints.
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[19] He recalls that he was in the company of then Constable Nkosi doing patrol duty
in a marked closed bakkie when they were stopped by a member of the
community. This person pointed out a household in Stoffel Park and reported
that dagga was being sold at that place. They let the person go to avoid him
being identified by other people as an informer .
[20] The officers went to the identified place and knocked at the door. A male person
opened the door in response. They explained to him that they had information
that he is dealing in dagga . He kept quiet, and they then requested permission
to search his premises, and he agreed. They asked him w ith whom was he
staying and he said that he stayed alone.
[21] They entered the one -roomed shack with him and searched in his presence .
They searched cupboards, under the bed and elsewhere. As they were busy
searching, Constable Nkosi found behind the door , a transparent Tupperware
container . They could see that it contained something. Constable Mampane
opened it and found what looked like dagga and immediately called the plaintiff
nearer.
[22] The witness testified that he knows dagga due to its pungent smell which is
unique to it. He has encountered dagga many times before. They asked the
plaintiff whose dagga it was, but he kept quiet. The witness then told the plaintiff
that it was illegal to possess dagga and that they were arresting him for
possession of dagga. He then read the suspect his rights from his pocketbook .
They took the plaintiff outside and locked him in the back of the police van.
[23] The officers were proceeding to the police station with Sgt Nkosi driving . Whilst
en route , they encountered two Quantum mini -bus taxis blocking the ro ad. They
tried to negotiate with the taxi drivers to move their vehicles from the road to
enable traffic to move . Sgt Nkosi alighted and approached the drivers but only
one moved his vehicle out of the way . The second driver was not cooperating
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with them, necessitating them to arrest him forcefully. As Sgt Nkosi opened the
door to the rear hatch of the bakkie to load the taxi driver , the plaintiff jumped out
and fled.
[24] The officers then let go of the taxi driver and focussed on pursuing the plaintiff
as he was fleeing, jumping fences and walls.
[25] Sgt Nkosi called for backup over the radio and a van with two members arrived.
Sgt Nkosi and the two extra members gave chase to the plaintiff. The witness
followed them driving in their original police van. He could see how his
colleagues were pursuing the plaintiff who was running, stumbling and falling ,
and appeared drunk.
[26] He watched as the plaintiff tried to jump the large high wall still under
construction. The plaintiff was reaching up to the wall and as he fell, dislodged
some loose bricks at the top , which fell onto him. Sgt Nkosi and the others
managed to apprehend him. At this point, t he plaintiff appeared to be cooperating
with the members of the SAPS , telling them that he will go and show them where
the owner of the dagga is , with even more dagga.
[27] The plaintiff , instead, took them to an open veld where some housing was under
development. The witness saw that the plaintiff was bleeding from his head ,
presumably from the brick s that fell on him earlier. He also had a bandage on
one of his hands.
[28] At the open veld where the plaintiff took them, the officers found nobody, the
place appeared as if it was being prepared for a new development. They then
realized that Mr. Ngobeni was lying to them. He is also lyi ng to the court when
he says that they assaulted him and struck him with the buckle of a belt. There
had been no reason for the police officers to assault him.
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[29] Sgt Mampane and his colleagues then left with the plaintiff and drove to the
Mamelodi Police Station. There they took him to the cells and recorded that fact
into the books since he needed to be taken to the clinic to receive medical
attention. That was done and on return he was detained in the cells after Sgt
Mampane had read him his notice of rights, which Mr. Ngobeni refused to sign.
[30] The plaintiff was taken to a clinic by Se rgeants Mampane and Nkosi. After the
plaintiff was treated, they t ook him back to the cells for detention. The dagga was
recorded in the SAPS 1 3 under 755/2014.
[31] The defendant did not call further witnesses, including the other officers who
provided backup. No documentary evidence supporting the recording and
storage of the dagga was tendered.
D. Discussion
[32] As regards the contested issue of the arrest and subsequent detention of the
plaintiff, the defendant bore the onus to prove that the arrest and detention of the
plaint iff without a warrant was justified.
[33] There follows a consideration of what has become known a s the jurisdiction al
prerequisites for an arrest as set forth in section 40 (1)(b) of the Criminal
Procedure Act 51 of 1977 (hereinafter “the Act”) .
[34] Section 40 (1)(b) of the Act provides that :
" A peace officer may , without warrant , arrest any person whom he reasonably suspects
of having committed an offence referred to in Schedule 1, other than the offence of
escaping from lawful custody; ”
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[35] In Hiemstra’s Criminal Procedure ,1 the law pertaining to arrest without a wa rrant
is summarized with reference to the matter of Minister of Safety and Security v
Sekhoto2 as follows:
1. The jurisdictional prerequisites for subsection 40(1)(b) must be present;
2. The arrestor must be aware that he or she has a discretion to arrest;
3. The arrestor must exercise that discretion with reference to the facts; and
4. There is no jurisdictional requirement that the arresting officer should
consider using a less drastic measure than arrest to bring the suspect before
court.
[36] The arresting officer exercises a discretion when he decides to arrest a suspect
in circumstances where he has no warrant. It is trite that this is informed by a
reasonable suspicion . In Olivier v Minister of Safety and Security and Another ,3
the court held that: “ when deciding if an arrestor’s decision to arrest was
reasonable, each case must be decided on its own facts.”
[37] In Biyela v Minister of Police4 the Supreme Court of Appeal questioned whether
the arresting officers could have formed a reasonable suspicion based on
hearsay evidence and the credibility of the arresting officers. [emphasis added] .
In Biyela , the arresting officers were directed to a suspicious vehicle by a CCTV
camera operator via radio communication.
[38] The court held that the standard of a reasonable suspicion is very low. The
reasonable suspicion must be more than a hunch; it should not be an
1 Page s 5-8.
2 [2010] ZASCA 141 (19 November 2010).
3 2009 (3) SA 434 (WLD).
4 (1017/2020) [2022] ZASCA 36 (01 April 2022).
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unparticularised suspicion. It must be based on specific and articulable facts or
information. Whether the suspicion was reasonable, under the prevailing
circumstances, is determined objectively.5 The court found that the arrest was
unlawful .
[39] In the current case, the suspicion was formed pursuant to the arresting officers
receiving information from a member of the community , who had stopped them
on the street, who has to date not been identified in any way.
[40] If the arrest is unlawful, it follows that the subsequent detention must also be
unlawful.6
[41] In Minister of Safety and Security v Glisson7 it was held that:
“Police authority to arrest without warrant is an extremely valuable protective measure
for the community. At the same time great juristic value is placed upon the liberty of the
individual. What has to be found is a balance between the protection of indiv idual liberty
on one hand and avoidance of unnecessary restriction on the police in the execution of
their duties on the other. Where the two are evenly balanced, the scales in a modern
constitutional state will fall on the side of individual liberty. ”8
[42] In Du Toit (supra)9, a timely warning is given, which foreshadow s this action, that:
“It will be expected of the police, before effecting an arrest, to approach the signs of
possible involvement in crime with an open mind. Where an arrest without warrant is
effected by a peace officer and is not permissible under s 40 or 41, the arrestee m ight
5 Ibid para [34].
6 Minister of Safety and Security v Tyokwana 2015 (1) SACR 597 (SCA) at 600G.
7 2007 (1) SA 131 (E) at para [6] on 134.
8 Excerpt from Du Toit – Commentary on the Criminal Procedure Act – RS 71 , 2023 ch5 -p12A.
9 RS 73, 2024 ch5 -p13.
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lawfully resist or flee. Moreover, such arrest might form the basis of a civil action for
damages.”
E. Conclusion
[43] Absent the jurisdictional factors as made clear above , the plaintiff’s arrest is
unlawful. There is no explanation whatsoever as to the curious release of the
plaintiff from custody. At any rate, as was stated above, the resultant detention
of the plaintiff was unlawful as well.
[44] In the result, the defendant is found to be liable for the plaintiff’s prov en damages
as a result of unlawful arrest , assault and detention. The defendant is ordered to
pay the plaintiff’s costs on a party and party scale , including costs of counsel to
be taxed at scale B.
J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
Date of hearing: 19/11/2024, 20/11/2024 and 5 December 2024
Date of Judgment: 21 May 2025
On behalf of the Plaintiff : Ms. Z. Nako
Plaintiff’s attorneys : T.F. Matlakala Inc. Attorneys, Pretoria
Incorporated ; Pretoria . e-mail: obakeng@tfmlaw.co.za ; legal@tfmlaw.co.za
On behalf of the Defendant : Mr. D.D. Mosoma
Defendant’s attorneys : The State Attorney, Pretoria
Ref: 896/ 2015/Z49
e-mail: Kmeier@justice.gov.za
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Delivery : This judgment was handed down electronically by circulation to the parties' legal
representatives by email and uploaded on the CaseLines electronic platform. The date for hand -
down is deemed to be 21 May 2025.