IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between
SHIRLEY ELIZE BOY
MANTHABELENG AGNESIA MPELE
ABRAM SEKALELI
PHUMELA PEROS LEBONA
KHOTSO JULIUS NYANTI
TSHOKOLO JOHN MOTHEBE
MALUSI AARONE BUYAPHI
LINEO AGNES MOFANA
and Not Reportable
Case No: 4732/2019
4733/2019
4734/2019
4735/2019
4736/2019
4737/2019
4858/2019
4859/2019
Plaintiff in case no: 4732/2019
Plaintiff in case no: 4733/2019
Plaintiff in case no: 4734/2019
Plaintiff in case no: 4735/2019
Plaintiff in case no: 4736/2019
Plaintiff in case no: 4737/2019
Plaintiff in case no: 4858/2019
Plaintiff in case no: 4859/2019
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MINISTER .OF POLICE DEFENDANT
Neutral citation: Boy and Others v Minister of Police (4732/2019 ; 4733/2019; 4734/2019;
4735/2019/ 4736/2019; 4737/2019; 4858/2019 ; 4859/2019) [2015) ZAFSHC 176 (12 June
2025)
Coram:
Heard:
Delivered:
Summary :
plaintiffs. Molitsoane J
23 September 2025
12 June 2025
Delict -whether the police were negligent in arresting and detaining the
ORDER
1. The claims of all the plaintiffs, except the one of Malusi Aaron Buyaphi, are
dismissed with costs, such costs shall include the costs of Counsel on Scale A.
JUDGMENT
Molitsoane, J
[1] The eight plaintiffs instituted actions for damages against the defendant for
unlawful arrest and detention. As I explain later in the judgment, the plaintiffs' cases arise
out of the alleged negligence of the employees of the defendant. The actions of the
plaintiffs were consolidated except for the claim of Malusi Aaron Buyaphi, who has since
passed on before the trial commenced. The trial proceeded on issues pertaining to the
merits and quantum.
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The pleaded cases of the plaintiffs
[2] At the beginning of the trial, this court made the following ruling after address by
the legal representatives of all parties:
(a) The duty to begin was on the plaintiffs
(b) The plaintiffs bear the burden of proving negligence as pleaded;
(c) The plaintiffs bear the onus to prove malice as pleaded;
(d) That whereas the defendants bear the onus of proving the lawfulness of the arrest [in
view of the admission of the arrest in the pleas], the plaintiffs carry the burden to prove
that the arresting officers failed to exercise their discretion to arrest reasonably.
[3] The particulars of claim of all the plaintiffs mirror each other and are in essence
the same, especially with regard to the fact that all of them allege that the employees of
the defendant acted negligently by relying on the third parties' suspicion that plaintiffs
were involved in the commission of human trafficking, kidnapping, money laundering and
other charges.1Paragraph 9 of the particulars of claim of all the plaintiffs is pleaded as
follows: 'In and as a result of the said negligence, plaintiff was unlawfully arrested and
unlawfully detained. '(Emphasis added)
[4] The particulars of claim thereafter proceed to set out the number of days each of
the claimant spent in detention. In my ruling at the beginning of the trial, and also in the
ruling I made in an application for absolution from the instance of all claims of the plaintiffs,
I indicated that the plaintiffs claims were grounded on the negligence of the employees
of the defendant in effecting the arrest and detention.
[5] The manner in which the allegations in the particulars of claim are framed, indicate
that the negligence of the employees of the defendant, led to the unlawful arrest and
detention of the plaintiffs. For this reason, l hold the view that seeing that the plaintiffs
allege that the negligence of the employees of the defendant led to the unlawful arrest
and detention, such negligence had to be established first. The plaintiffs bear the onus to
prove negligence. Had the plaintiffs pleaded simply that their arrest and subsequent
1 Para 4.4 of the particulars of claim of all the plaintiffs.
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detention was unlawful, then where the defendant admitted the arrest like in this case,
the burden would have shifted to the defendant to justify the lawfulness of the arrest. The
duty to begin would also have been on the defendant. This is not the case in these claims.
[6] As a starting point, it needs to be mentioned that a trial bundle was prepared by
attorneys of the defendant. In their pre-trial minutesduring the pre-trial stage, the parties
agreed that 'documents in the trial bundle shall be what they purport to be.' During the
trial, both Counsel at some stages of cross examination referred the witnesses to the
statements in the trial bundle. For this reason, I hold the view that this court is entitled to
consider the said statements and documents referred to. This should explain refence to
hearsay evidence which was not objected to but at times pertinently raised referred to by
both counsel.
[7] It is, in my view unnecessary to set out in detail the testimony of all the plaintiffs in
the adjudication of this dispute. The plaintiffs were employees of a businessman, Mr
Ronnie Rune. He owned various businesses around Matjhabeng district, namely,
Palmietkuil Farm, Kune Village, Madiba Lodge and Club Phakisa. The plaintiffs were all
arrested at the said business premises of their employer except Mr Khotso Julius Nyanti
who was arrested at the Welkom Magistrate's Court. The essence of the testimony of the
plaintiffs is that they were arrested without any probable and reasonable cause. All of
them testified that they were not involved in human trafficking, kidnapping, money
laundering or any other charges as alleged by the state. According to them, the only
reason for their arrest is because they worked for Mr. Rune. They all testified about the
circumstances surrounding their arrest, their quest to be released on bail and the payment
of their bail, their detention and conditions of the places where they were held captive and
the impact such detention had on them.
[8] It is however prudent to deal with the evidence of the claimant, Mr. Tshokolo
Petrus Mothebe as it also touches on the background which triggered the arrest of the
plaintiffs. He was employed as a security guard on the farm Palmietkuil owned by Mr.
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Rune. He started working on the farm on 2 January 2018. According to him the farm was
fenced and as he was stationed at the gate, some of his duties included controlling
movement of people in and out of the farm. He testified that apart from him, there were
other people working on the farm but of the said people, he only knew Alice and Lerato.
When he started working on the farm on 2 January 2018, he found one Teboho, Mancane
and Mafutha already on the farm. He further testified that these three men left the farm
on 8 January 2018. The next day, 9 January 2018, two other people arrived on the farm.
He did not know their names but they were given places in which to sleep.
[9] On 10 January 2018, while in the company of Lerato and Alice, a contingent of police
arrived on the farm in vehicles. He had a discussion with Captain Herbert (the Captain)
who questioned him about Teboho and his whereabouts. This Teboho, which the Captain
was looking for had allegedly been held captive at the guest house on the farm. He
informed the Captain that Teboho left on 8 January 2018. He further informed the Captain
that there were other two people who were in the field herding cattle. The police requested
him to accompany them to the fields where the cattle were being herded. They found the
two people. One of those people was also Teboho by name. He, however, did not at that
stage know that the said person was Teboho. That information he only came to learn
about after Teboho and his companion had locked the cattle in the kraal. He was
present when the Captain interviewed Teboho. He also heard the voice note played by
the Captain on a cell phone for Teboho to identify. He heard when Teboho confirmed that
the voice note was sent by him. He was the arrested with the late Mr. Buyaphi.
[1 O] Captain Karin Herbert is one of the police officers who testified on behalf of the
defendant. At the time of this incident, she was a Captain in the South African Police
Service. She testified that she received information from Lesotho regarding Teboho. The
contents of the message were to the effect that Teboho was locked up on a farm
Palmietkuil against his will. She assembled a back-up team in order to respond to this
information. She indicated that she was duty bound to respond immediately in
circumstances where victims had to be rescued. They proceeded to the farm Palmietkuil
where they met Mr. Mothebe. At first, she was informed that Teboho had left the farm.
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Her search of the premises on the farm did not yield any fruit. Her interactions with the
person who sent her a message about the distress call made her to continue looking for
Teboho. Later Mr. Mothebe told her that there were two other persons in the fields herding
cattle. Her colleagues went to the fields with Mr. Mothebe and returned with Teboho and
someone else.
(11] She interviewed Teboho and he confirmed that he was the one who sent a
message of distress to Lesotho. The Captain played the voice note and he identified the
voice note as the one he sent to Lesotho seeking assistance. He confirmed that he had
been recruited by a certain lady, who he could point out, who worked at Khune Village.
One Moshe Materna, who was also present during the interactions with Teboho also said
she had been recruited on the farm by a certain lady to be found at Khune Village. She
also confirmed that she met Alice Mpholo and one Makhoa on the farm. These two ladies
told her that they did not want to be on the farm. The two ladies also relayed the
information concerning young girls held at Khune Village. She instructed one Captain
Macheu, with whom she was, and who also acted as her interpreter, to arrest Messrs
Mothebe and Buyaphi.
[12] They then followed the information to Khune Village. At Khune Village, Teboho
and one Mofoka Masiea pointed out two ladies whom they alleged were the recruiters.
One such lady was Agnes Mpela. She interviewed one lady known as Nkhoane who
indicated that she wanted to leave Khune Village but could not leave without her sisters
who were at Madiba Lodge. Agnes Mpela was then arrested. They then followed the
information to Madiba Lodge. A search of Madiba Lodge led to the arrest of Dineo Mofana
and Sekaledi. At Madiba Lodge they found Margaret Nkhoane who told her that before
her arrival, Shirley Boy had told other young women that she had come to fetch them.
Three women who were found on the premises were taken away as the police took them
to be victims of human trafficking. The three were later assessed by the Department of
Social Development after being taken to a place of safety. The Social Department
concluded that they were victims of human trafficking them to be victims of human
trafficking. Various Letters of Recognition as a Victim of Trafficking were completed in
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terms of s19(10) of the Prevention and Combating of Trafficking in Persons Act 7 of 2013.
Shirley Boy was also arrested days later.
[13) The test for negligence as set out in the locus classicus Kruger v Coetzee2 is as
follows:
'For the purposes of liability culpa arises if -
(a) a di/igens paterfamilias in the position of the defendant -
(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and
causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.'
[14) On the issue of wrongfulness I wish to refer to Le Roux and Others v Dey (Freedom
of Expression Institute and Restorative Justice Centre as amici curiae)3 in which the court
said the following:
'In the more recent past our courts have come to recognise, however, that in the context of the law of delict:
(a) the criterion of wrongfulness ultimately depends on a judicial determination of whether -assuming all
the other elements of delictual liability to be present -it would be reasonable to impose liability on a
defendant for the damages flowing from specific conduct; and (b) that the judicial determination of that
reasonableness would in turn depend on considerations of public and legal policy in accordance with
constitutional norms. Incidentally, to avoid confusion it should be borne in mind that, what is meant by
reasonableness in the context of wrongfulness has nothing to do with the reasonableness of the defendant's
conduct, but it concerns the reasonableness of imposing liability on the defendant for the harm resulting
from that conduct.'
[15] In my view, the plaintiffs' cases are based on negligence. It is the alleged negligence
of the employees of the defendant which must be proved in order to find the causal link
between their conduct and the damage suffered. The police had received information .
They followed the information as it raised serious allegations of human trafficking. There
2 1966(2) SA 428(A) p 430E-F.
3 2011(3) SA 274(CC) para122.
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were people who gave further information which gave rise to reasonable suspicion that
offences had been committed. The plaintiffs led no evidence whatsoever relating to the
negligence of the police. None of the witnesses of the defendant were engaged regarding
the alleged negligence. In the heads of argument , no reference whatsoever was made to
the alleged negligence of the police. It seems to me that the attitude of the plaintiffs was
that the issue of negligence was not an issue to be proven though it was pertinently
pleaded by them and put in dispute by the defendant. I cannot find that the police were
negligent in arresting and detaining the plaintiffs in this case. It is unnecessary to consider
the lawfulness or otherwise of the arrest and the subsequent detention. The claims of the
plaintiffs stand to be dismissed with costs.
[16] In the circumstances, I make the following order:
1. The claims of all the plaintiffs, except the one of Malusi Aaron Buyaphi, are
dismissed with costs, such costs shall include the costs of Counsel on Scale A.
Appearances
For the Appellant:
Instructed by:
For the Respondent:
Instructed by: Adv J. Nkhahle
Kambi Attorneys
BLOEMFONTEIN
Adv G Wright
Office of the State Attorney
BLOEMFONTEIN 9