SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NUMBER: 6027/2020
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
Signature :
Date: 30/06/ 2025
In the matter between:
MAPHILA JOEL MASHIGOANA PLAINTIFF
AND
MINISTER OF SOUTH AFRICAN POLICE SERVICE 1ST DEFENDANT
NATIONAL COMMISIONER OF 2ND DEFENDANT
SOUTH AFRICAN POLICE SERVICE
LIMPOPO PROVINCIAL COMMISIONER OF 3RD DEFENDANT
SOUTH AFRICAN POLICE SERVICE
ONE OTHER MEMBER OF 4TH DEFENDANT
SOUTH AFRICAN POLICE SERVCE
JUDGMENT
STRöH AJ
[1] The Plaintiff (Maphila Joel Mashigoana) instituted an action against the
Minister of the South African Police Service, (hereinafter the 1ST Defendant ),
National Commissioner of the South Afric an Police Service (hereinafter the 2ND
Defendant ), Limpopo Provincial Commissioner of the South African Police Service
(hereinafter the 3RD Defendant ) and One Member of the South African Police Service
(hereinafter the 4TH Defendant ) together known as the Defendants , for the unlawful
arrest by the Defendants. The Plaintiff's reasoning behind their claim is that the
arrest was carried out without a warrant of arrest and unlawfully depriving the
Plaintiff of his freedom from the 30th November 2019 until his r elease on the 2nd
December 2019. The Plaintiff claim for an amount of R 200 000,00 (Two Hundred
Thousand Rand) for general damages due to emotional shock, indignity,
psychological trauma and humiliation as well as R 400 000,00 (Four Hundred
Thousand Rand) for unlawful arrest and detention.
[2] At the start of the trial, the Plaintiff's counsel informed the Court that the
Plaintiff abandoned his second claim which was a claim for alleged assault against
the Defendant .
[3] There was a separation of the meri ts and quantum in this matter, the Court
had to adjudicate on only the merits of the case.
[4] The Plaintiff states in paragraph seven (7) of his Particulars of Claim that,
"During or around 01:00 on 30th November 2019, at or near Jerusalem Village, one
member of the South African Police Service ("SAPS") Hlogotlou, Limpopo Province,
arrested the Plaintiff without a warrant, for allegedly being in possession of a stolen
motor vehicle. The arrest is prima facie unlawful as it was carried out without a
warran t."
[5] Paragraph fifteen (15) of the Plaintiff's Particulars of Claim states that, "On the
2nd December 2019 at approximately 11h00, the Plaintiff was released from the
holding cells without having made any court appearance. To date the Plaintiff has
never been charged for the alleged possession of stolen motor vehicle."
[6) The Defendant in their amended Plea at paragraph five (5) holds that, "The
Defendants admit that on 30 November 2019 and at next Mantrompi, Public Road,
Hlogotlou, the Plaintiff was lawfully arrested and lawfully detained after he was found
in possession of a stolen motor vehicl e, to with a blue Mazda 323 with Reg. B[...]."
[7] When having regard to the lawfulness of the arrest and detention, the
Defendant bore the onus to prove the grounds of justification .1 This is due to the fact
that the justification for the detention, following an arrest, until the detainee's first
appearance in court, continues to rest on the police.2 The Defendant in addition, has
an onus of proving the lawfulness of the Plaintiff's continued detention until the 2nd
December 2019 . The general principle holds that the onus rest s on the detaining
officer to justify the detention because the detention is prima facie unlawful . 3
[8] The Plaintiff only bears the onus when he alleges that the arresting officer
failed to exercise his/her discretion rationally.
[9] The parties agreed that the Defendant would commence with leading
evidence in respect of the lawfulness of the arrest and further to call one of the police
officers, to lead evidence regarding the Plaintiff's detaining officers' evidence. The
1 Minister of Law and Order v Hurley 1986 (3) SA 569 (A) 589 E -F
2 Minister of Police and Another v Du Plessis [2013] ZASCA 119; 2014 (1) SACR 217 (SCA) at
para 17.
3 See JE Mahlangu and Another v Minister of Police [2021] ZACC10 at para [32] where it was held
that once it has been established that the constitutional ri ght not to be deprived of one's physical
liberty has been interfered with, the deprivation is prima facie unlawful, and the infringer bears the
onus to prove that the inference was justified.
evidence of the Plaintiff's detaining officer is found to be hearsay evidence in terms
of section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988.
[10] Once the Defendant has lead eviden ce that the arrest was lawful and the
court accepts the evidence, the onus shifts to the Plaintiff to then prove that the
arrest of the Plaintiff did not meet the threshold of section 40 of the Criminal
Procedure Act 51 of 1977 and that the officer who arr ested the Plaintiff , did not have
the reasonable suspicion that was needed, at the time of the arrest.
EVIDENCE GIVEN AT THE TRIAL
[11] The Defendant called its first witness, Constable Mapaleng Amos
Thekupi (hereinafter referred to as 'Thekupi'). Thekup i testified that on 30 January
2019, he was stationed at Hlogotlou Police Station, working in the investigation
section. His evidence was that he was requested to go to the alleged crime scene
(first scene), on arrival he found nobody whereafter he was agai n informed to drive
to Montrompi (second scene), which he did and at the second scene he found the
two vehicles which had collided with one another at the first scene.
[12] At the second scene the person who reported the incident to Thekupi is
named Glen. Glen informed Thekupi that the other person who collided with his
vehicle drove away from the first scene but ran out of petrol causing both vehicles to
be at the second scene.
[13] Mathupi's evidence was that Glen did not want to press charges since the
damage to Glen's car was not that serious and 'anyway' he would not be able to
recover the damages from the person who drove away from the first scene.
[14] Mathupi informed this court that at the second scene he obtains information
that Glen's vehicle w as not a stolen vehicle but that the vehicle of the second person
at the second scene (referring to the Plaintiff's vehicle) was reported to be a stolen
vehicle.
[15] It was Mathupi's further evidence that when he confronted the Plaintiff with the
information that his car is reported to be a stolen vehicle, he (the Plaintiff) informed
Mathupi that he is aware that the vehicle is "crooked." Mathupi's further evidence
holds that at that stage, the Plaintiff wanted to give Mathupi money and asked
Mathupi to leave the car. It was at this stage that Mathupi testified that he knew that
the Plaintiff had the knowledge that the vehicle was a stolen vehicle and which was
when Mathupi then proceeded to arrest the Plaintiff for possession of a stolen
vehicle.
[16] During cross examination, Mathupi's evidence was that he went alone to the
first and second crime scene. Mathupi again confirmed in his evidence that Glen did
not want to pursue the Plaintiff for damages to his car. The reason given in evidence
by Mathupi of why Glen did not wish to pursue damages from the Plaintiff, was due
to the condition of the Plaintiff's vehicle (a Ford Ranger).
[17] During cross -examination, Mathupi confirmed that he exercised his discretion
not to open a case because Glen did not wish to pursue the collision any further. It
was further testified by Mathupi that, the drivers of vehicles in a collision, are obliged
to report the collision to the Police themselves, however if a person is injured or died
at the scene of the collision, the Police has an obligation to report the incident.
[18] Mathupi in his evidence, was asked, by the counsel for the Plaintiff, why the
issue of discretion did not come into the picture in this case before the court, Mathupi
held, that it did feature and even though both drivers came to an agreement not to
pursue with the matter, the Police had to open a case of reckless driving.
[19] Couns el for the Plaintiff asked Mathupi what had triggered him to inspect the
authentication of the two vehicles, to which he replied, he found an opportunity to
check both cars.
[20] Mathupi again confirmed during cross -examination that the Plaintiff's vehicl e
was a Mazda 323 and that it was reported to be a stolen vehicle.
[21] Mathupi further testified that once it is established that the vehicle was a
stolen vehicle, he then has an obligation to enquire from the person (in this instance
the Plaintiff) as t o where he got this car.
[22] Again in cross -examination, Mathupi told this honourable court that the
moment the Plaintiff confirms that the vehicle is a stolen vehicle and that he tendered
to give him money, he (as Mathupi ) knew that the vehicle was a st olen vehicle.
[23] Mathupi was asked what the law says when considering the circumstances
mentioned above, to which Mathupi replied that, "If a person say so, he takes out
money, we arrest him for bribing a police officer."
[24] This Honourable court was then referred to the statement given by this
witness ( Mathupi ) and paragraph 5 was read into the record that states, "I then
asked the driver Joel Mashegoane as to where did he get the vehicle. Joel told me
that the vehicle he have been tempered with and it's clean now. And he further,
promised to give me money so that I can leave the car with him."
[25] Counsel for the Defendant then asked Mathupi how the abovementioned
paragraph 5 of his statement completes the crime of bribery, to which Mathupi
answere d, "Attempted bribery."
[26] It was put to this witness that the Plaintiff was going to testify that he never
offered Mathupi money to which Mathupi's evidence in court was that, "he will be
misleading the court."
[27] It was also put to this witness, b y the counsel for the Plaintiff, that the Plaintiff
will testify that when Mathupi said the vehicle was stolen, the Plaintiff then said he
got it from a certain Magane. Mathupi's reply in court was: "that's not what he told
me."
[28] Mathupi testified tha t he did not take the statement of the Plaintiff because
according to him there is a separate division in SAPS that 'take care' of vehicle theft.
[29] It was further put to the witness that the Plaintiff will testify that a 'certain'
Magane stays 'just' 2 kilometer from the second scene, to which Matupi replied that,
"he did not tell me."
[30] It was also put to the witness that the Plaintiff will testi fy that he stayed 'just'
one kilometer from the second scene, to which Matupi replied, "no not kilometer but
forty kilometer."
[31] During cross -examination, Matupi acknowledge that he deprived the Plaintiff
of two days of Liberty to which he responded "c orrect."
[32] Matupi was asked, "what does the law say if you found somebody in
possession of stolen property?" to which he responded, "You ask him what he says
about the property and also if there are people involved, we try to follow up."
[33] Matupi testified that after he detained the Plaintiff, his task was 'over' and it
was the Vehicle Investigation Service and the Call Service Centre responsibility to
follow up the stolen vehicle information.
[34] It was put to Mathupi , by the Plaintiff's counsel, that at 14h00 the same day
the Plaintiff made a written statement of which the content was the same as what the
Plaintiff told Mathupi . Mathupi responded to this by stating that the Plaintiff was
misleading this Honourable court.
[35] During re -examinati on, Mathupi told this Honourable court that, at the time of
the arrest, the Plaintiff never told him he bought the car from a 'certain Magane.'
[36] The Defendant's counsel also asked whether Mathupi would have detained
the Plaintiff and made the statemen t that he (as Mathupi) had made and more
specifically paragraph 5. Mathupi responded, 'no there would not have been a
reason to detain him.
[37] Mathupi was referred to a certain document in the court bundle (a certificate
of registration) in respect of t he motor vehicle to which he was asked who the owner
of the 323 vehicle is. Mathupi responded, 'Magane SJ.'
[38] It is important to note that counsel informed the court that the numbering of
the pages of Mathup i’s statement is incorrect and that page 46 ha d to be changed to
read page 44 and page 44 had to be changed to read 45 and page 45 had to be
changed to read 46.
[39] Mathupi also testified that the VIN number on his statement Court Bundle C
on page 45 paragraph 4 states that the VIN number is NR 4[...] and the VIN Number
on the Licence certificate page 19 is A[...] which differs from the Vin Number on page
45.
[40] Mathupi's evidence before this Honourable court was that he confirmed to the
counsel that the two VIN numbers in the above -mentioned par agraph is an indication
that we are talking about two different vehicles.
[41] The witness (Mathupi) was then referred to another document in the Court
Bundle C page 49 and was asked to read the chassis number of the vehicle. Mathupi
read the chassis numb er of the vehicle as number 4[...]. Mathupi confirmed that the
chassis number and Vin number refers to the same thing and also that 'this '
document on page 49 Court Bundle C and document on page 45 Court Bundle C is
the same.
[42] It was put to Mathupi b y his Counsel that when he referred to Section 36 of
General Laws Amendment Act 62 of 1955 he referred to the amended one.
[43] Mathupi testified in re -examination again, that the Plaintiff 'never' informed
him as Mathupi where he got the vehicle.
[45] Mathupi's testimony again held that when the Police docket arrived at the
Police station, the Contact Service Centre did the neces sary contact.
[46] Mathupi further testified to this Honourable court that a crime scene and
accident scene is not the same.
[47] The witness also (in re -examination) confirms that when 'if' it would have been
a shooting scene he would not have attended it alone.
[48] The Defendant's second witness (Warrant Officer D. P. Mampuru)
(hereinafter referred to as 'Mampuru') testified that he is employed at Polokwane
Crime Investigation Unit (hereinafter referred to as the 'CIU').
[49] Mampuru testified that t he 30th November 2019 was a working day, and their
normal working hours were from 08h00 - 16h00.
[50] Mampuru testified that when he arrived at the office on the 30th November
2019 he 'looked' for reported cases and found case 299/11/2019, to which he then
went to Nebo Police Station and found the suspect, Joel Mashigoana (the Plaintiff).
[51] Mampuru's evidence was that at Nebo Police Station, he questioned the
Plaintif f regarding the vehicle which was found in his possession.
[52] Mampuru informed the Plaintiff that this vehicle is reported a stolen vehicle at
Rietgat Police Station under case nr 215/1/2011 with number plate B[...].
[53] Mampuru evidence was that the Plaintiff at Nebo Police Station informed him
that AM Magane and him, the Plaintiff exchanged vehicles.
[54] Mampuru further testified that the Plaintiff informed him that he had a Ford
Bantam Bakkie and AM Magane had a Mazda 323. The Plaintiff also infor med
Mampuru that AM Magane was a builder and that the 323 Mazda was not a vehicle
AM Magane could use hence the vehicle exchange with the Plaintiff.
[55] According to Mampuru evidence, the Plaintiff wanted to do the vehicle
exchange since he wanted to wor k as a mini -taxi driver.
[56] Mampuru evidence was that after he questioned the Plaintiff, he drove to the
place where AM Magane stayed and Mampuru questioned AM Magane regarding
the 323 Mazda vehicle to which AM Magane replied he exchanged the Mazda 323
for the Ford Bantam Bakkie.
[57] Mampuru testified that when he asked AM Magane to provide him with the
vehicle registration papers of the 323 Mazda , AM Magane said he is not in
possession of the registration papers since he has bought it from Joseph Mar umo
Magane for R 13 000,00 (Thirteen Thousand Rand) and has only paid R 10 000,00
(Ten Thousand Rand) and R 3000,00 (Three Thousand Rand) was still outstanding.
[58] It was also Mampuru testimony, that he then informed AM Magane that the
Mazda 323 was a stolen vehicle and Mampuru detained AM Magane and took him to
Nebo Police Station where he was charged.
[59] It was also Mampuru evidence that on the following Monday, the Plaintiff
appeared in court an d his brother appeared with the vehicle registration certificate.
[60] Mampuru evidence was that the vehicle registration papers (certificate) that
was given to him and the vehicle that was stolen at Rietgat number plate was
different.
[61] Mampuru furth er testified that the vehicle registration papers (certificate) he
was provided with, and the police printout could not relate.
[62] Mampuru further informed this Honourable Court that the vehicle receives a
unique number when engine number was tempered w ith.
[63] It is important to note that the evidence from Mampuru was that when a
vehicle is stolen and not tempered, they the Police don't change the engine number,
they don't change anything.
[64] The Honourable court asked the witness Mampuru where do we see the
unique number, to which Mapuru replied it is on the certificate VIN number "A […]"
and Mampuru also replied this is not the original vehicle VIN number.
[65] Mampuru evidence was further that he informed the Plaintiff that the vehic le
registration papers (certificate) and the police printout were not the same vehicle and
he requested the Plaintiff to provide him with registration papers of the 323 vehicle to
which Plaintiff replied, Mampuru must ask Joseph Marumo Magane (Joseph).
[66] Mampuru informed this Honourable court that the case went to court however
the prosecutor informed Mampuru to follow instructions which according to Mampuru,
the case was not put on the roll on the 2nd December 2019 and the Plaintiff was
released.
[67] Mampuru testified that the Plaintiff did indeed go to court on the 2nd of
December 2019.
[68] Mampuru during evidence referred the court to the investigation diary and
more specifically what was written on this investigation diary on the 2/12/19 which
states:
"1. Find out what happened Rietgat at case 215/1/2011.
2. Follow up allegations by A3.
3. Obtain also statement of Glen.
4. Case not placed on the roll."
[69] Mampuru when the court asked him questions regarding the Mazda 323 he
testified that when he opened the bonnet of the vehicle, he saw the vehicle
registration plate (tag) inside the bonnet and when he read that vehicle registration
plate(tag) into the system the case of 299/11/2019 at Rietgat came up.
[70] During Cross -Examination the Counsel for the Plaintiff asked the following
questions to the witness.
[71] Mampuru was asked what the procedure woul d be when he arrest a person
with a stolen vehicle. Mampuru replied that he would ask the person where did you
get this vehicle. If the person who has given the vehicle to the person that Mampuru
arrested stays nearby, he Mampuru would drive to that person and ask him if it is his
car and take a statement from him and Mampuru will contact the prosecutor to find
out if he must open a case. Mampuru also confirmed that he will take a warning
statement from the person he arrested for allegedly stolen vehicle.
[72] Mampuru was also asked to reply to the question: "Is it our law that a person
who is found in possession of stolen vehicle be charged with stolen vehicle?" To
which Mampuru replied:" No he should not be charged, the person we found with the
vehicle st olen we ask how he is related to that car. If he bought the car we ask,
where did you buy it, and we go with him to the place where he bought the car and
take a statement from that garage owner and release the person without opening a
case."
[73] Mampuru confirmed that he took two warning statements, one from AM
Magane and one from the Plaintiff.
[74] During cross -examination it was put to Mampuru that he testified that once a
person explains that the person he bought the vehicle from is nearby he follows up. It
was also put to him that he went to the person's address and took a statement from
AM Magane. He was then referred to the statement of AM Magane who states that
they (Plaintiff and AM Magane) exchange vehicles because of the one a bricklayer
and th e other one a taxi driver.
[75] It was further put to witness that considering the evidence of the previous
paragraph, there are no doubts about the Bona Fide of the Plaintiff to which the
witness, Mampuru confirmed Yes.
[76] Mampuru was then asked "why not release the Plaintiff'' to which Mampuru
replied "since he opened a case he must take instructions from the prosecutor."
[77] Mampuru also confirmed during testimony that he tried to contact the
prosecutor but could not get hold of him.
[78] Mampuru also made a comment that states: "Because Monday is not far."
[79] It was put to the witness Mampuru by the Counsel for the Plaintiff that: "Are
you aware that between the prosecutor and yourself the Plaintiff was in custody
30th,1st and 2nd?" to which M ampuru answered: "I see that as the docket was already
open and I get my directives from the prosecutor. In the absence if I release him,
allegations against me as Police men."
[80] Mampuru testified that at Nebo Police station he satisfied himself that t he 323
Mazda was a stolen vehicle under Case number 299/11/2019 at Rietgat.
[81] Mampuru was referred to page 8 on the Bundle marked D and asked to read
into the court what was written next to the time 14:40 which states as follows:
"Suspect Charged: w/o Mampuru charged Cell 290/11/2019 Joel Mashegoane on
Cas 299/11/2019 poss of suspected S/M/V."
[82] Mampuru was then referred to page 30 of Bundle D and asked to read into
the court what was written next to the time 14:25 which states as follows: "Arrest:
D/W/O Mampuru of Polokwane VCIU arrested cell 04/12/19 Alfred Magane on
Hlogotlou 299/11/2019 possession of suspected stolen m/vehicle. The detainee was
informed of his rights SAPS 14A R 8764194 and was taken to the cells free from
visible injuries or comp laint inspected by W/O Pheku."
[83] Mampuru was asked during cross -examination that he has two suspects, one
the owner and the other one that explain to which he replied that he did try to call the
prosecutor and that once a docket is opened he has no con trol, the prosecutor has
the final say.
[84] Paragraph 5. 6 and 7 of the amended plea was read into the record and I
found it necessary as Judge to repeat that was said in these paragraphs:
"Paragraph 5: The defendants admits that on 30 November 2019 and at next
Mantrompi, Public Road , Hlogotlou, the Plaintiff was lawfully detained after
he was found in possession of a stolen motor vehicle, to wit, a blue Mazda
323 with Reg. B[...]."
"Paragr aph 6: The status of the aforesaid motor vehicle at the time of the
Plaintiff's arrest was that the vehicle was sought on reason of theft at Rietgat
under Cas 215/1/2011."
"Paragraph 7: In the premise, the Defendants submit that there was a
reasonable susp icion that the Plaintiff had committed an arrestable offence."
[85] Mampuru confirmed that as a Police Officer he acts in terms of the Criminal
Procedure Act and that he was aware of the right of each person in court.
[86] Mampuru confirmed the preservat ion of a person's right to Liberty must be
done.
[87] Mampuru also confirmed during testimony that Section 40(1)(b) of the
Criminal Procedure Act talks about the reasonable suspicion that a person
committed an offence.
[88] Mampuru was asked if he agree s that once he was in contact with the owner
of the car, the further detention of the Plaintiff was unlawful! to which Mampuru
replied and I states: "But I could not take decision on my own, if case is open, the
directive comes from the prosecution."
[89] Mampuru during re -examination confirms that when he approaches AM
Magane, he could not provide him with the alleged stolen vehicle papers.
[90] Mampuru was asked in re -examination in the absence of vehicle papers is he
in a position to let the accused go , to which Mampuru replied the investigation was
not finalized. He said the Plaintiff said AM Magane bought the alleged stolen vehicle
from his brother Joseph Marumo Magane and the Plaintiff and AM Magane
exchanged vehicles.
[91] Mampuru was referred to t he following namely that AM Magane said to
Mampuru that he doesn't have his brother Joseph Marumo Magane telephone
number.
[92] Mampuru was referred to the re -examination questions and answers and was
ask if a reasonable police officer would have let go o f that person (referring to the
Accused/Plaintiff) to which Mampuru replied no.
[93] Mampuru was asked if he think the further detaining of the Plaintiff was legal,
to which he replied: "Yes, taking into account the time he stayed in the cells."
[94] The Plaintiff counsel for the Plaintiff after the two witnesses for the Defendant
testified proceeded the following day with leading evidence for the Plaintiff by calling
the Plaintiff himself.
[95] The Plaintiff Mamphila Joel Mashigoane confirmed that he lo dged a claim
against the Minister of Police for unlawful! arrest, detention and assault.
[96] The Plaintiff explained to this Court that he is not proceeding with the claim of
assault due to the fact that when he tried to get documentation from the hospital,
they could not provide him with the documentation regarding his assault.
[97] The Plaintif f was asked to explain to this court what occurred on the 30th
November 2019. The Plaintiff explained that he went to a place called Mosterloose
(first scene) and that was at 01H 00. He, the Plaintiff was driving a Mazda 323 and
when he parked the car at th e Tavern at Mosterloose, he was informed by a certain
person who was driving a Corsa that the Plaintiff collided with the person driving a
Corsa.
[98] The Plaintiff evidence was that 3 persons tried to assault him at the Tavern,
and he then decided to lea ve the Tavern at Mosterloose and drive to Montrompi
(second scene).
[99] The Plaintiff evidence was further that on his way to Montrompi his vehicle ran
out of petrol. Plaintiff also confirmed that the person who alleged the Plaintiff collided
with him a t the first scene followed the Plaintiff to the second scene.
[100] It was further testified by the Plaintiff that they were stationed at the second
scene for a short time when the Police arrived. It seemed to the Plaintiff that the
other person who follo wed him phoned the Police on the way to the second scene.
[101] According to the Plaintiff, the Police Officer that arrived at the second scene
was called Thekupi and he was driving a Nissan Hard Body Bakkie, Double Cab,
unmarked. Thekupi arrived alone at the second scene no other police officer
accompanied him.
[102] The Plaintiff testified upon Thekupi arrival at the scene at Montrompi, he
(Thekupi) spoke to the other persons who followed the Plaintiff and they informed
Thekupi that the Plaintiff collid ed with their vehicle. It was the Plaintiff's evidence that
Thekupi did not want to listen to what the Plaintiff had to say.
[103] The Plaintiff evidence was that Thekupi checked both vehicles and informed
the Plaintiff that his vehicle was a stolen vehic le.
[104] The Plaintiff further testified that Thekupi asked him where did he get the
stolen vehicle to which he replied, he exchanged his vehicle with that of a certain AM
Magane.
[105] The Plaintiff was then referred to page 45 of Bundle C and more spe cifically
paragraph 5 which was then read into the record which states: "I then asked the
driver Joel Mashegoana as to where did he get the vehicle. Joel told me that the
vehicle have been tempered with and its clean now. And he further promised to give
me money so that I can leave the car with him." The Plaintiff informed this
Honourable Court that he never told that to Thekupi, what was written in paragraph 5
of the statement. The Plaintiff said Thekupi just clapped him, cuffed him and put him
in the van.
[106] The Plaintiff evidence to this court was that he never confirmed to Thekupi
that there was a problem with the car neither did he offer Thekupi any money.
[107] The Plaintiff further testified that Thekupi called the breakdown at the scene
and he, the Plaintiff together with Thekupi left the scene before the breakdown
arrived.
[108] The Plaintiff evidence was that he was taken to a police station but was kept
at the charge office whereafter he was again transported at 08h00 to Nebo Police
Station. Mampuru (the Defendant's witness) then interviewed the Plaintiff and took
the statement.
[109] The Plaintiff testified that Mampuru interviewed him on a Saturday, which was
the same day he was arrested.
[110] According to the witness, Mampuru asked the Plaintiff where did he get the
alleged stolen vehicle. The Plaintiff answered that he got the alleged stolen vehicle
from AM Magane, who is a builder. The Plaintiff also explained that he himself works
as a mini taxi driver.
[111] The Plaintiff did testify that Mampuru asked for the address of AM Mampuru.
He also testified that AM Mampuru was brought to the Police station and put in the
cells.
[112] It was the Plaintiff's evidence that he stayed one (1) kilomet er from the scene
of the arrest and AM Magane stayed two (2) kilometers from Mosterloose.
[113] The Plaintiff testified he was kept in the Police cells on the Saturday of the
arrest, Sunday and Monday.
[114] The Plaintiff evidence was that he was release d on the Monday by Mampuru
after seeing the document and he Mampuru did not give the Plaintiff a reason. It was
the Plaintiff's evidence that he did not go to court that Monday.
[115] The Plaintiff was asked by his counsel if he knew that there were issue s with
the alleged stolen vehicle when he swapped vehicles to which he replied that he did
not know.
[116] The Plaintiff was asked when he was arrested for driving a stolen vehicle how
did he feel to which he replied and I states: "it did not go well with him."
[117] The Plaintiff evidence was also that he was never arrested before this incident.
[118] During Cross -Examination the Plaintiff confirms that Thekupi's evidence was
correct and more specifically that the Plaintiff made his warning statement a few
hours after his arrest.
[119] The Plaintiff also in his evidence before this Honourable Court denied that he
told Thekupi that he tempered with the alleged stolen vehicle and that he wanted to
give Thekupi money.
[120] The Plaintiff was then referred to Court Bundle C, the last paragraph of his
warning statement on page 41 which was read into the record. The last paragraph
states: "Then on the 19th November 2019 I change the engine of Mazda 3 23 of Mr
Magane as it has a problem of biring".
[121] The Plaintiff acknowledge in his evidence before Court that he made the
warning statement before he was arrested and also that he changed the engine
before the arrest.
[122] The Plaintiff again testif ied to this Honourable Court that on 10 November
2019 he changed the engine of the alleged stolen vehicle.
[123] The Plaintiff also testified that the engine of the alleged stolen vehicle in his
own words: "Mangane's engine gave me problems."
[124] It was put to the Plaintiff in cross -examination that Warrant Officer Mampuru
testified in this court that he told the Plaintiff that he would go to MA Mangane and
get a statement from him. MA Mangane also confirmed that he doesn't have the
papers of the a lleged stolen vehicle and neither does he have the phone number of
his brother. The Plaintiff replied in court to this statement made by Counsel for the
Defendant that yesterday during evidence it was the first time that he, the Plaintiff
heard that Warran t Officer Mampuru did not get the phone number of MA Mangane's
brother.
[125] The Plaintiff's evidence was that he never saw the vehicle registration papers
that were given to Warrant Officer Mampuru.
[126] The Plaintiff was also in court referred to th e statement on page 15 of the
court bundle "C" and was further informed that this statement was the statement of
MA Magane's brother, Joseph Magane.
[127] The Plaintiff during his evidence in court confirmed that the engine number of
the vehicle referred to on page 15 of court bundle "C" and the engine number of the
vehicle on the registration papers of the alleged stolen vehicle is the same number
which is V […].
[128] The Plaintiff was then referred to page 49 of the court bundle "C" and
confirme d that the engine number on page 49, nr B […] is a different number to the
engine numbers on page 15 and the registration papers number.
[129] The Plaintiff was asked if he agrees that due to the two different engine
numbers, we in court now deal with two different vehicles to which the Plaintiff said
he could not agree.
[130] The Plaintiff confirmed that the engine numbers were not the same, but he
again stated that we are not dealing with two vehicles.
[131] Counsel for the Defendant informed the P laintiff that he was arrested in the
early hours of 30th November 2019, he was charged by Warrant Officer Mampuru
and that he was transported to court on Monday and due to this, the Police were
cautious when dealing with this matter. The Plaintiff responde d to this statement by
the Defendant counsel by informing this court that he cannot say that they (Police)
were cautious, the Plaintiff said that before he got into the Police vehicle he was
assaulted.
[132] The Plaintiff was again asked in court how far the house was where MA
Mangane stayed from scene two, to which he replied two kilometers.
[133] Counsel for the Plaintiff referred the Plaintiff to the testimony of Warrant
Officer Mampuru and more specifically to his evidence that MA Mangane stayed 40
km from scene two to which the Plaintiff replied that Mosterloos and Groblersdal is
18 km apart and that scene two was not at Groblersdal but Mosterloos.
[134] During Re -examination Plaintiff confirmed in Court that he was charged by
Warrant Officer Mampuru .
[135] Plaintiff was asked by his counsel if he was asked at scene two where
Thekupi arrested him about the engine of the car, to which he replied Thekupi only
talked about the stolen vehicle.
[136] The Plaintiff was again referred to page 8 of bundle " D" and more specifically
to what was written next to the time 14:40. The Plaintiff read this then into the record:
"Suspect Charged: W/O Mampuru charged Cell 290/11/2019 Joel Mashegoana on
Cas 299/11/2019 pass of suspected S/MN."
[137] The Plaintiff also testified that he did not know that MA Magane brought the
vehicle certificate to Warrant Officer Mampuru.
[138] The Plaintiff also confirmed during cross -examination that at the time that he
exchanged the Mazda 323 with the Ford Bantam bakkie, he was not given the
registration papers of the Mazda 323 as he was told by MA Magane that his brother
will bring it in Dece mber.
[139] The Plaintiff again was asked by his counsel if he told Mampuru that the
papers were with MA Magane to which he replied that they (Plaintiff and MA Magane)
exchanged vehicles and that he (Plaintiff) did not receive the alleged stolen vehicle
registration papers.
[140] When the Plaintiff was asked in court if he knew where the Mazda 323 was at
the time of being asked, he responded by telling this court that he had seen the
vehicle at Nebo Police station.
[141] The Plaintiff was also asked in c ourt what happened between himself and MA
Magane to which he responded that he (Plaintiff) collected the Bakkie without a fight.
THE FIRST LEGAL QUESTION BEFORE THE COURT IS A CONSTITUTIONAL
ONE:
[142] In terms of Section 12 of the Constitution:
"12(1) Everyone has the right to freedom and security of person which
include the right:
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without a trial;
(c) free from all forms violence from either public or private so urces;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading
way.
[143] In terms of Section 14 of the Constitution:
Everyone has the right to privacy, which includes the right not to have"
(a) their per son or home searched;
(b) their property searched;
(c) their possession seized; or
(d) the privacy of their communications infringed.
[144] In Zealand v Minister of Justice and Constitutional Development and
Another 4 ,the court said: "This is not something new in our law. It has long been
firmly established in our common law that every interference with physical liberty is
prima facie unlawful. Thus, once the claimant establishes that an interference has
occurred, the burden falls upon the person causing the interference to establish a
ground of justification."5
[145] In Minister of Law and Order and Others v H urley and Another ,6 the court
said: "An arrest constitutes an inference with the liberty of the individual concerned,
and it therefore seems to be fair and just to require that the person who arrested or
caused the arrest o f another person should bear the onus of proving that his action
was justified in law."
[146] In Duncan v Minister of Law and Order7 in order for a warrant to be lawful, it
must satisfy these four factors which are:
(a) the arrestor must be a peace officer;
(b) she must entertain a suspicion;
(c) the suspicion must be that the suspect has committed an offence
listed in schedule 1 of the Criminal Procedure Act;
(d) such suspicion must be based on reasonable grounds.
[147] In Duncan case at 818 G -H further referred to Ingram v Minister van
Justisie ,8 which stated the test to be applied as: "The words "reasonable suspicion"
may tend to indicate some subjective test to be applied; however , tha t is not so; the
test as to whether "reasonable suspicion" could have existed and did exist , is to be
determined by an objection standard, namely that of the reasonable man with the
knowledge and experience of a peace officer based on the facts and circum stances
then known to the arresting officer."
4 2008 ZACC 3
5 At paragraph 25
6 1986 (3) SA 568 (A) at 589 E -F
7 1986 (2) SA 805 (A) at paragraph G -H
8 1962 (3) SA at 229 G -230A
[148] JE Mahlangu and Another v Minister of Police ,9 where it was held that
once it has been established that the constitutional right not to be deprived of one's
physical liberty has been interfered with, the deprivation is prima facie unlawful, and
the infringer bears the onus to prove that the inference was justified.
[149] In Mabona and Another v Minister of Law and Order and Another10 the
court said: "Would a reasonable man in the second defendant's position and
possessed of the same information have considered that there were good and
sufficient grounds for suspecting that the plaintiffs were guilty of cons piracy to
commit robbery or possession of stolen property knowing it to have been stolen? It
seems to me that in evaluating his information a reasonable man would bear in mind
that the section authorizes drastic police action. It authorizes an arrest on th e
strength of suspicion and without the need to swear out a warrant, i.e. something
which otherwise would be an invasion of private rights and personal liberty. The
reasonable man will therefore analyse and assess the quality of the information at
his disp osal critically, and he will not accept it lightly or without checking it where it
can be checked. It is only after an examination of this kind that he will allow himself
to entertain a suspicion which will justify an arrest. This is not to say that the
information at his disposal must be of sufficiently high quality and cogency to
engender in him a conviction that the suspect is in fact quilty. The section requires
suspicion but not certainty. However, the suspicion must be based upon solid
grounds. Otherw ise, it will be flightly or arbitrary, and not a reasonable suspicion."
THE SECOND LEGAL QUESTION BEFORE THE COURT IS THE
INTERPRETATION OF SECTION 36 GENERAL LAWS AMENDMENT ACT 62 OF
1955 AND 40 OF THE CRIMINAL PROCEDURE ACT
[150] In terms of Section 36 General Laws Amendment Act 62 Of 1955 :
9 2021 ZACC 10 at para 32
10 1988 (2) SA 654 (SE) at 658
(a) the goods must be found in possession of the suspect; (b) there must be a
reasonable suspicion that the goods have been stolen; and (c) the suspect
must be unable to give satisfactory explanation of his possessi on."11
[151] Section 36 of General Laws Amendment Act 62 of 1955 provides:
" Failure to give satisfactory account of possession of goods - any person who
is found in possession of any goods, other than stock or produce as defined in
section one of the Stock Theft Act, 1959 (Act No. 57 of 1959), in regard to
which there is reasonable suspicion that they have been stolen and is unable
to give a satisfactory account of such possession, shall be quilty of an offe nce
and liable on conviction to the penalties which may be imposed on a
conviction of theft."
[152] Section 40 of the Criminal Procedure Act provides that:
Section 40(1) : "A peace officer may without warrant arrest any person -
(a) ...
(b) whom he reaso nably suspects of having committed an offence referred
to in Schedule 1, other than the offence of escaping from lawful custody;
(e) who is found in possession of anything which the peace officer reasonably
suspects to be stolen property or property dishon estly obtained, and whom
the peace officer reasonably suspects of having committed an offence with
respect to such thing;"
[153] In Nkosi and Another v Minister of Police and Others12 the court h eld that:
In casu , it is common cause that:
[i] The arresting officers were "peace officers" as envisaged in the Act;
[ii] That the charcoal grey Toyota Etios motor vehicle was stolen;
[iii] That the two Plaintiffs as well as Ghadani were at or near the motor
vehicle at the time when they were arrested:
11 C R Snyman: Criminal Law 6th ed (2015) at 515
12 (164072/022) [2024] ZAGPJHC 320 (28 March 2024) at para 36
[iv] That theft of a motor vehicle is an offence referred to in Schedule 1 of
the Act."
THE THIRD LEGAL QUESTION BEFORE THE COURT IS STANDARD OF
PROOF IN CIVIL CASE
[154] In Pillay v Krishna and Another13 the court held that the standard of proof in
a civil case is proof on the balance of probabilities.
[155] In National Employers' General Insurance Co Ltd v Jagers14 the court held:
" It seems to me, with respect, that in any civil case, as in any criminal case,
the onus can ordinarily only be discharged by adducing credible evidence to
support the case of the party on whom the onus rests. In a civil case the onus
is obviously not as heavy as it is in a criminal case., but nevertheless where
the onus rests on the plaintiff as in the present case, and where there are two
mutually destructive stories, he can only succeed if he satisfies the Cour t on a
preponderance of probabilities that his version is true and accurate and
therefore acceptable, and that the other version by the defendant is therefore
false or mistaken and falls to be rejected. In deciding whether that evidence is
true or not the court will weigh up and test the plaintiff's allegations against the
general probabilities. The estimate of the credibility of a witness will therefore
be inextricably bound up with a consideration of the probabilities of the case
and, if the balance of pr obabilities favours the plaintiff, then the Court will
accept his version as being the probably true . If however the probabilities are
evenly balanced in the sense that they do not favour the plaintiff's case any
more than they do the defendant's , the pla intiff can only succeed if the Court
nevertheless believes him and is satisfied that his evidence is true and that
the defendant's version is false"
[156] In Elgin Fireclays v Webb15 the court held that: " it is true that i f a party fails
to place the evidence of a witness, who is available and able to elucidate the facts,
13 1946 (AD) 946 at 952 -3
14 1984(4) 437 (EC D) 440 D -G
before the trial Court, this failure leads naturally to the inference that he fears that
such evidence will expose facts unfavourable to him"
EVALUATING EVIDENCE AGAINST THE LEGAL PRINCIPLES, LAW AND
CASELAW
[157] Regarding the lawfulness of arrest and detention , the defendant bore the onus
to prove the ground of justification.
[158] The Defendants first witness (Thekupi) testified that the person who was
involved in the accident at the first scene was a person by the name of Glen.
[159] It is important to note that the Defendant only called Thekupi and Mampuru as
witnesses. Mampuru, however, was not at the second scene where the Plaintiff was
arrested and contradicting evidence was given in court between the Plaintiff and
Thekupi as to what occurred at the second scene.
[160] Thekupi evidence is relevant when one considers the ground s of justification
for the arrest. It is clear from the evidence that Mampuru gave who only arrested AM
Magane and who was also the person involved in taking the statement of the Plaintiff
as well as that of AM Magane.
[161] According to Thekupi's evidenc e in court, his reason for arresting the Plaintiff
was when the Plaintiff after Thekupi obtained information at the second scene that
the vehicle was stolen, offered Thekupi money (attempted bribe) and requested
Thekupi to leave the alleged stolen vehicle with the Plaintiff.
[162] If one looks at Section 40 of the Criminal Procedure, the arrest by the peace
officer without a warrant is allowed by law if a peace officer in terms of section
40(1)(b) of the Criminal Procedure Act, reasonably suspects a suspec t of committing
an offence referred to in Schedule 1 of the Criminal Procedure Act as well as in
terms of section 40(1)(e) of the Criminal Procedure Act which reads: "who is found in
15 1947 (4) SA 744 (A) at 749 -750
possession of anything which the peace officer reasonably suspects to be stolen
property or property dishonestly obtained, and whom the peace officer reasonably
suspects of having committed an offence with respect to such thing."
[163] In Ingram v Minister van Justisie16 the court said, "The words "r easonable
suspicion" may tend to indicate some subjective test to be applied; however , that is
not so; the test as to whether "reasonable suspicion" could have existed and did
exist, is to be determined by an objection standard, namely that of the reasona ble
man with the knowledge and experience of a peace officer based on the facts and
circumstances then known to the arresting officer."
[164] It is clear from the evidence given by Thekupi that from an objective standard,
he had the knowledge and experien ce of a peace officer and further based on the
facts and circumstances at the crime scene (scene where the arrest took place) and
the evidence given in court, he could arrest the Plaintiff.
[165] A more important aspect in this judgement is the detention and more
specifically the grounds for justification for the continued detention of the Plaintiff
until the date of his release. The evidence of Thekupi is not relevant with regards to
the detention since he also testified in court that, after he detained t he Plaintiff, his
task was completed and it was the Vehicle Investigation Service and Call Service's
responsibility to follow up on the alleged stolen vehicle; and this is precisely where
the evidence of Mampuru plays an important role.
[166] The Defendan t's other witness, Mampuru, testified in court that on the day of
the arrest of the Plaintiff, he questioned the Plaintiff and the Plaintiff informed
Mampuru that the alleged stolen vehicle previously belonged to AM Magane and that
he and AM Magane exchang ed vehicles.
[167] Mampuru also testified that he went to AM Magane's residence (home) and
was informed by AM Magane that he and the Plaintiff did exchange vehicles.
16 1962 (3) SA at 229 G -230A
[168] Due to the fact that AM Magane could not provide registration papers of the
allege d stolen vehicle, AM Magane was arrested by Mampuru notwithstanding AM
Magane's explanation as to why he doesn't have the registration papers.
[169] The aspect of lawfulness of detention of the Plaintiff must be looked at from
the point of view of Mabona and Another v Minister of Law and Order and
Another ,17 even though Mabona refers to arrest, the same principle applies to
detention namely, that of a "reasonable man will therefor analyze and assess the
quality of the informati on at his disposal critically, and he will not accept it lightly or
without checking it where it can be checked. It is only after an examination of this
kind that he will allow himself to entertain a suspicion which will justify the arrest."
[170] If one considers the evidence of Mampuru, it is clear that AM Magane
informed Mampuru that he doesn't have the registration papers (license certificate) of
the alleged stolen vehicle because he still owes his brother Joseph Magane money
for the alleged stolen veh icle that he bought from him.
[171] The question to ask now is, would a reasonable man detain the Plaintiff
further after the evidence/explanation given by AM Magane to Mampuru, taking into
consideration that this explanation to Mampuru was given on the same day of the
arrest of the Plaintiff.
[172] During evidence in court Mampuru testified that he could not release the
Plaintiff because once he opened a case, he must get instructions from the
prosecutor.
[173] In JE Mahlangu and Another v Minister of Police ,18 the Honourabl e Court
held that the Minister of Police was liable not only till date of first appearance of
accused in court but till date of release of accused, if found not guilty. From this it is
clear that it was not correct in terms of law for Mampuru to wait for i nstructions from
the prosecutor to release the Plaintiff.
17 1988 (2) SA 654 (SE) at 658
18 2021 ZACC 10 at para 32
[174] If one now evaluates the evidence of the Plaintiff, which contradicts what
Thekupi was saying in his statement, as well as in this court, the question then must
be asked is why did the Defend ant not call Glen to come and testify as to what was
said by the Plaintiff to Thekupi at the arresting scene of the Plaintiff?
[175] Immediately one tends to look at Elgin Fireclays v Webb19 and considers the
question of wh ether "it is true that if a party fails to place the evidence of a witness,
who is available and able to elucidate the facts, before the trial Court, this failure
leads naturally to the inference that he fears that such evidence will expose facts
unfavoura ble to him."
[176] The standard of proof in civil cases that has been discussed in this judgement
is set out in Pillay20 and National Employers' General Insurance Co Ltd v
Jagers .21
[177] In this judgeme nt, I as the Presiding Judge already confirmed and agreed that
as far as the Defendant's case is concerned, the Plaintiff was lawfully arrested by
Thekupi. Regarding the issue of detention and more specifically lawful detention, I
am of the opinion that th e version of the Plaintiff as far as the exchange of the
alleged stolen vehicle is concerned, is on a preponderance of probabilities, true and
accurate and therefore acceptable.
[178] The question to answer now is in light of the judgement given in JE Mah langu
and Another v Minister of Police22 and the fact that the Plaintiff and the Defendant
confirms during evidence in Court that the Plaintiff and AM Magane was interviewed
on the same day of the arrest by Mampuru and that the evi dence of AM Magane in
the court bundle corresponded with that of the Plaintiff (namely that an exchange of
vehicles exist between Plaintiff and AM Magane), one cannot then say that the
Defendant was lawfully correct to detain the Plaintiff until the day th e Plaintiff was
released in this matter.
19 1947 (4) SA 744 (A) at 749 -750
20 1946 (AD) 946 at 952 -3
21 1984(4) 437 (ECD ) 440 D -G
22 2021 ZACC 10 at para 32
[179] To further stress the reasoning in this Judgement, nothing could have
prevented the Defendant from releasing the Plaintiff the same day of the arrest and
keep the alleged stolen vehicle in a safe place until the correct license certificate was
given to the Defendant.
In the circumstances the following order is made:
1. The Defendants shall be liable for 100% of the proven damages
of the Plaintiff claim sustained due to unlawful arrest and
detention on the 30th November 2019
2. The adjudication of quantum is postponed sine die
3. The Defendants shall pay the costs to date with regard to the
merits of the Plaintiff and which pertains to the Defendant.
4. The Plaintiff however shall pay the cost of the Defendant with
regards to the withdrawal of the assault claim.
J D STRöH
ACTING JUDGE OF THE HIGH COURT
Appearances:
For the Plaintiff: Adv T Tshabalala
Instructed by: MK Mabote Incorporated c/o Cip u Attorneys, Polokwane
For the Defendant: Adv S Mbali
Instructed by: State Attorney, Polokwane
Dates Heard: 17th and 18th March 2025
Date Reserved: 18th March 2025
Closing Heads of Arguments Received: 22nd April 2025
Date Delivered: 30th June 2025