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JUDGMENT
Moleleki AJ
[1] The Plaintiff claims for delictual damages from the Defendant on the assertion
that he was unlawfully arrested and detained by members of the South African Police
Service (the SAPS) acting within the course and scope of their employment with the
Defendant.
[2] The arrest occurred on 31 January 2020 at approximately 15h00 at or near
Sheba Siding, Barberton District, Mpumalanga. He was arrested without a warrant of
arrest. The Plaintiff was detained at Barberton Police Station for a period of two days.
He appeared in court for the first time on 3 February 2020. Subsequent to his
appearance at court, he was detained at Nelspruit Correctional Centre. On
10 February 2020 , he was granted bail in the amount of R1 500. The matter was
postponed several times until it was ultimately struck off the roll by the court on 29 July
2020 due to the absence of witnesses.
[3] The Defendant pleaded that the arrest of the Plaintiff without a warrant was in
accordance with the provisions of section 40(1)(a) and (b) of the Criminal Procedure
Act 51 of 1977 (the Criminal Procedure Act), and that he was detained in terms of
section 50(1) thereof .
[4] The i ssues for determination by this Court are whether or not the arrest of the
Plaintiff by a member of the SAPS and the subsequent detention thereafter were
unlawful and, if so, the determination of the Plaintiff’s damages as a result thereof.
The Defendant’s Version
[5] Sergeant Riaan Prinsloo, a member of the SAPS with 19 years of service,
testified that he was the investigating officer in this matter, in which the Plaintiff was
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arrested together with 22 others underground at Sheba mine, which is a mine that is
no longer operational. The 23 arrestees were arrested for being in possession of
possible gold material by members of the SSG Security Company. The arrestees were
found in possession of food and equipment that is usually used to dig by illegal miners ,
such as hammers, chisels, saws and butcher knives.
[6] The security personnel deposed to statements and took photographs of those
arrested and took them to the police station. When they were handed over to the officer
in charge at the police station, Sergeant Moya, the security handed their statements
and phot ographs to Sergeant Moya.
[7] The case docket was handed over to Sergeant Prinsloo for further investigation
of the matter. Sergeant Prinsloo did not interview any of the witnesses but relied on
the documents that were inside the docket. According to Sergeant Prinsloo, he
encountered d ifficulties whilst investigating the matter , in particular when he had to
prepare for the bail application. He had to verify addresses , and amongst the arrestees
were minor children and illegal foreigners. The Plaintiff was granted bail in the amount
of R1 500 a week after his arrest, on 10 February 2020. Others brought their bail
applications on 27 March 2020.
[8] The matter was postponed several times and the difficulty with the matter was
that after they had been granted bail, the arrestees did not attend court. On the day
the matter was ultimately set down for tri al, most of the arrestees were no longer
attending court, and the witnesses were also not before court. It was for this reason
that the matter was struck off the roll by the court. Subsequent thereto, he made
attempts to re -enrol the matter , but when he went to the addresses that had been
provided by the arrestees, they could not be found , as some were renting , and others
were foreign nationals.
The Plaintiff’s Version
[9] The Plaintiff testified that he was in the company of two of his friends. They
were at the veld collecting firewood and were in possession of a bag containing a
hammer, chisel, saw and butcher knife. He stated that he earns a living from selling
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wood. The Plaintiff refutes the fact that he was arrested by security officers , but rather
by police officers. The police officers were travelling in a marked police vehicle ; they
placed them inside the police vehicle and drove with them to the police station without
explaining anything to them.
[10] At the police station, he and his friends found a group of other people who had
been arrested. They were made to join those other people , and they were charged
together. Their rights were not explained to them until their first appearance in court,
where it was explained for the first time what they were arrested for. His evidence is
that he was denied bail on the basis that he was a foreign national when in fact he was
born and bred in South Africa. The Plaintiff concedes that he was charged with 2 3 to
24 others and that all of them were found in possession of similar equipment.
[11] Regarding the condition of the cell in which they were kept at the Barberton
Police Station , he stated that they were all kept in the same cell. The ablution facility
was not clean. Although he was given food, he could not bear to eat because of the
conditions. Following his appearance in court, he was detained at the Nelspruit
Correctional Centre for a period of seven days until he was ultimately granted bail. The
Plaintiff did not testify about the conditions at the correctional facility. According to the
Plaintiff, when the matter was ultimately struck off the roll, there were only five
arrestees out of the 23 that were before court.
The Law
[12] In our law, the arrest and detention of the Plaintiff are deemed prima facie
wrongful as they comprise the deprivation of his liberty. Therefore, the Defendant
bears the onus to prove the lawfulness of the arrest and detention .1 A Defendant who
relies on one of the defences created by section 40(1) of the Criminal Procedure Act
as a ground of justification must prove the jurisdictional facts for such a defence on a
balance of probabilities. It is only when all the jurisdictional facts for the defences
created by the section are satisfied that the peace officer may invoke the power
1 Minister of Law and order and Others v Hurley and Another [1986] 2 A ll SA 428 (A).
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conferred on it, and only then would a peace officer be empowered to arrest without a
warrant.
[13] The relevant portion of section 40(1) of the Criminal Procedure Act provides:
“(1) A peace officer may without a warrant arrest any person –
(a) who commits or attempts to commit any offence in his presence;
(b) whom he reasonably suspects of having committed an offence referred to in
Schedule 1, other than the offence of escaping from lawful custody;
(c) …”
[14] It is common cause that the witness who testified on behalf of the Defendant in
justification of the arrest did not effect the arrest. According to the evidence, when the
Plaintiff and others were handed over by security officers, it was Sergeant Moya who
received them. Sergeant Moya, the arresting officer, was not called to testify.
[15] It is trite that the grounds of justification must be exercised objectively. The
section requires suspicion and not certainty. However, the suspicion must be based
upon solid grounds ; otherwise , it would be arbitrary. The test is whether a reasonable
man in the position of the arresting officer and possessed of the same information
would have considered that there were good and sufficient grounds for suspecting that
the Plaintiff committed the offence/s.
[16] There are two mutually destructive versions . The approach to resolving two
irreconcilable, mutually destructive versions is well established .2 The technique
generally employed by courts in resolving factual disputes of this nature may
conveniently be summarised as follows. In determining the disputed issues, a court
must make findings on (a) the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities.
[17] As stated, Sergeant Moya was not called to testify. Sergeant Prinsloo , on the
other hand, was not privy to the arrest of the Plaintiff. His evidence was that he relied
2 See Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and Others 2003 (1) SA 11
(SCA) par a 5.
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on statements that were contained in the case docket. Although the Defendant’ s legal
representative was allowed to cross -examine on the statements relied on by Sergeant
Prinsloo, such documents were not discovered. The Defendant bore the onus to justify
the arrest and detention. It is therefore unreasonable for the Defendant to expect the
court to accept as evidence documents which were not discovered. The p arties are
confined to their pleadings. Failure to discover documents which were crucial to its
case ought to be at the Defendant’s own peril.3
[18] The Defendant is legally obliged to satisfy the jurisdictional factors to justify the
arrest of the Plaintiff, which is viewed as prima facie unlawful. On the version of the
Defendant, the Plaintiff was arrested by security officers. Therefore, the alleged
offence was not committed in the presence of Sergeant Moya as is provided for by
section 40(1)(a) of the Criminal Procedure Act. What is telling is the failure by the
Defendant to call Sergeant Moya as a witness to testify on the circumstances of the
arrest of the Plaintiff.
[19] I now turn to consider the jurisdictional facts to be established for a defence
based on section 40(1)(b). These jurisdictional facts are:
19.1 The arrestor must be a peace officer;
19.2 The arrestor must entertain a suspicion;
19.3 The suspicion must be that the suspect committed an offence referred to in
Schedule 1; and
19.4 The suspicion must rest on reasonable grounds.4
[20] What the evidence of Sergeant Prinsloo establishes is that the information prior
to the arrest of the Plaintiff was available to the security officers , who in turn handed
the arrestees to Sergeant Moya. Sergeant Moya was not called to testify on what
information was available to him on which a suspicion could be formed. Whatever
information Sergeant Prinsloo had in the case docket became available to him after
3 The object of discovery was stated in Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) at 1083 to
be:
“to ensure that before trial both parties are made aware of all the documentary evidence that is
available. By this means the issues are narrowed and the debate of points which are incontrovertible
is eliminated. ”
4 See Minister of Safety and Security v Sekhoto and Another 2011 (5) SA 367 (SCA) para 6 .
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the Plaintiff had been arrested. Therefore, the circumstances relating to the arrest of
the Plaintiff would, at most, be known to the arresting officer. Clearly, there was no
credible evidence available based on the testimony of Sergeant Prinsloo for him t o
suspect that the Plaintiff committed a Schedule 1 offence. It cannot, in the
circumstances, be said that Sergeant Prinsloo entertained a suspicion on objectively
reasonable grounds either. There is no evidence that Sergeant Moya exercised a
discretion of his own on whether to effect the arrest or not.
[21] On the conspectus of the evidence led on behalf of the Defendant, the
ineluctable conclusion to come to is that the Defendant has failed to satisfy the
threshold justifying the arrest on the two statutory grounds that have been pleaded.
[22] Consequently, the arrest of the Plaintiff was unlawful. It follows , therefore , that
the detention would suffer a similar fate.
Quantum
[23] The next issue for determination is what constitutes just and equitable
compensation to be awarded to the Plaintiff.
[24] The general approach regarding the amount of damages for unlawful arrest and
detention was set out by Bosielo AJ A (as he then was) in Minister of Safety and
Security v Tyulu5 as follows:
“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 c rucial
that serious attempts be made to ensure that the damages awarded are commensurate
with the injury inflicted. … The correct approach is to have regard to all the facts of the
particular case and to determine the quantum of damages on such facts. ”
[25] In Minister of Safety and Security v Seymour,6 Nugent JA remarked that:
5 Minister of Safety and Security v Tyulu 2009 (5) SA 85 SCA par a 26.
6 Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) ; [2007] 1 All SA 558 (SCA) par a
20.
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“Money can never be more than a crude solatium for the deprivation of what , in truth ,
can never be restored and there is no empirical measure for the loss . … It needs also
to be kept in mind when making such awards that there are many legitimate calls upon
the public purse to ensure that other rights that are no less important also receive
protection .
[26] Notwithstanding the absence of an empirical measure for the loss, a court in
exercising its discretion judicially, must strive to be balanced and even -handed .7 The
court must take care to see that its award is fair to both sides – it must give just
compensation to the plaintiff, but it must not pour out largesse from the horn of plenty
at the defendant’s expense .8
[27] In determining the amount to be awarded, it is helpful to have regard to awards
made in previous cases. Previous awards serve only as a guide and must not be
slavishly followed. The correct approach is to have regard to all the facts of the
particular case and determine the quantum of damages based on those facts .9
Therefore, what other courts have considered to be appropriate awards have no higher
value than being useful guides.
[28] When addressing the issue of exorbitant amounts that are being claimed in
matters of unlawful arrest and detention, Makaula AJA writing for the court in Diljan v
Minister of Police10 was very emphatic and stated that the court was urged by Counsel
for the appellant to have regard to past awards in assessing the appropriate amount
to be awarded. The court was referred to the judgment of Lopes J in Khedama v The
Minister of Police .11 The plaintiff in that matter had been arrested and detained for 9
days and had issued summons claiming R1 000 000. In Khedama , the court had
regard to the appalling conditions in the country’s detention facilities, such as lack of
water, blocked toilets, dirty and smelling blankets, sleeping on the cement floor, bad
quality of food, and lack of sleep. Having considered various hea ds of damages,
7 Motsaathebe v Minister of Police [2024] ZANWHC 8 par a 20.
8 Pitt v Economic Insurance Co Limited 1957 (3) 284 (D) at 287E.
9 Seymo ur at fn 6 above para 17.
10 Diljan v Minister of Police [2022] ZASCA 103 paras 14 and 15 .
11 Khedama v The Minister of Police 2022 JDR 0128 (KZD).
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Lopes J awarded damages in the total of R1 760 000. However, due to the amount
claimed having been limited to R1 000 000, the lat ter amount was awarded.
[29] On appeal to the full court , the amount awarded by Lopes J was reduced to the
sum of R350 000. Aggrieved by the decision, the appellant appealed to the Supreme
Court of Appeal12 and it ordered the defendant to pay damages in the sum of R580 000
arising from the unlawful arrest and detention. The court in Diljan13 went on to state
that:
“[18] The acceptable method of assessing damages includes the evaluation of the
plaintiff’s personal circumstances; the manner of the arrest; the duration of the
detention; the degree of humiliation which encompasses the aggrieved party’s
reputation and standing in the community; deprivation of liberty; and other relevant
factors peculiar to the case under consideration.
[20] A word has to be said about the progressively exorbitant amounts that are claimed
by litigants lately in comparable cases and sometimes awarded lavishly by our courts.
Legal practitioners should exercise caution not to lend credence to the incredible
pract ice of claiming unsubstantiated and excessive amounts in the particulars of claim.
Amounts … should not be ‘thumb -sucked’ without due regard to the facts and
circumstances of a particular case.”
[30] Although the facts in the matter before me seem to be similar to those in
Khedama , the amount awarded in Khedama would be excessive considering the
personal circumstances of the Plaintiff, the manner of arrest, the degree of humiliation
and his standing in the community. The assessment of damages is not based solely
on the duration of the detention ; rather, it gives weight to the overall treatment of the
detainee.
[31] The Plaintiff’s account of the arrest does not seem to be accurate. Sergeant
Prinsloo had the advantage of reading through the case docket. The re is no reason
not to accept his version that the Plaintiff was arrested with 22 others. It is inexplicable
why the Plaintiff and other arrestees would have been in possession of similar
12 Khedama v The Minister of Police [2025] ZASCA 79.
13 Diljan at fn 10 above par as 18 and 20.
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equipment when , in fact , it was only the Plaintiff and two of his friends who were
arrested whilst collecting firewood.
[32] In his particulars of claim, the Plaintiff pleaded that he was arrested for the
offence of trespassing , which entitled him to be released on bail in terms of section 59
of the Criminal Procedure Act. This cannot be correct. The evidence of the Defendant
that the Plaintiff was arrested for trespassing and attempted theft of gold -bearing
material was not disputed. His initial version was that he was not offered food whilst in
police custody. He later adjusted his version to say he was given food but could not
eat due to the condition of the cell. The Plaintiff’s evidence has to be approached with
caution. In a s much as this Court has accepted that the Plaintiff was arrested, this
Court is alive to the fact that his account of events was susceptible to the
embellishment of his ordeal.
[33] It remains to be determined whether the harm associated with the Plaintiff’s
detention following his first appearance in court to the date of his release on bail on
10 February 2020, can be attributed to the unlawful arrest by the police.
[34] As stated in his particulars of claim, the Plaintiff seeks to hold the Defendant
liable for the entire period of his detention. His contention is that the police wrongfully
failed to release him on bail at Barberton Police Station. There is also suggestion in
the Particulars of Claim that the investigating officer, Sergeant Prinsloo , refused him
being released on bail on the basis that he was a foreign national who was not a holder
of a valid passport. This was vehemently denied by Sergeant Prinsloo , who te stified
that following the arrest of the Plaintiff and 22 others, the matter was postponed to
allow him to gather detailed bail information, including confirmation of the residential
addresses of the arrestees.
[35] This appears to be a responsible and pragmatic approach by the investigating
officer. He clearly took the necessary steps to place all relevant information before the
Magistrate in order to allow for a decision to be made regarding bail. There is no
reason not to accept the evidence of Sergeant Prinsloo on this aspect. There is no
evidence that he gave false information to the court. The matter was postponed for 7
days , and the very next week the Plaintiff was granted bail in the sum of R1 500.
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[36] What needs to be considered is whether the deprivation of liberty following an
order by a Magistrate was lawful. Regard has been had to the manner in which the
remand order was made. In as much as the continued detention of a detainee pursuant
to an order of court may be lawful , even though detention followed from an unlawful
arrest, it does not, however , mean that every remand in terms of section 50(1) renders
further detention lawful.
[37] The Constitutional Court in De Klerk v Minister of Police 14 when dealing with
the test for legal causation stated that, ultimately, the test for legal causation, while
infused with constitutional considerations, must remain flexible and fact -sensitive.
There must be times when the police must be liable notwithstanding the persuasive
separation of power considerations. A reasonable arresting officer in the
circumstances may well have foreseen the possibility that , pursuant to an unlawful
arrest, the arrested person would routinely be remanded in custody after their first
appearance.15
[38] Similarly, Sergeant Moya must have foreseen that harm may arise from routine
postponements after the Plaintiff’s first appearance in court. The subsequent detention
of the Plaintiff after his first appearance was a consequence of his unlawful arrest by
the arresting officer. He reconciled himself with such knowledge when he proceeded
to arrest him. Sergeant Moya must have known that with the Plaintiff appearing with
22 other arrestees, the court would not have released him at his first appearance. It is
therefore reasonable, fair and just to hold the Defendant liable for the entire period.
[39] The Plaintiff testified to the conditions in police cells for the two days he spent
there at. He stated that the ablution facility was not functioning. Having considered the
evidence led and comparable awards, the decline in the value of money, and not
forgetting what was stated in Diljan16 regarding progressively exorbitant amounts that
are claimed by litigants lately in comparable cases and sometimes awarded lavishly
by our courts, I consider an award of R 200 000.
14 De Klerk v Minister of Police [2019] ZACC 32 par a 75.
15 Ibid par a 76.
16 Diljan at fn 10 above .
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Appearances
For the Plaintiff : Mr. I.S Phiri
Masinga SD Attorneys Inc
39 Brown Street
Nelbro Building
1st Floor, Office No. 5
Mbombela
For the Defendant : Mr. B. Mashele
52 Samora Machel Drive
R104 West Acres
3rd Floor, West Wing
Administration Block
Mpumalanga High Court Building
Mbombela
Matter heard on: 30 April 2025
Judgment delivered on: 20 June 2025