IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
Not reportable
CASE NO. 1220/2019
In the matter between:
MALIBONGWE JEMSANA Plaintiff
and
MINISTER OF POLICE Defendant
___________________________________________________________________
JUDGMENT
___________________________________________________________________
LAING J
[1] This is an application for leave to appeal against the judgment and order
made on 15 May 2025. The matter pertains to an unsuccessful action for damages
regarding the alleged unlawful arrest and detention of the applicant on 28 February
2018 in the district of Ngqeleni.
[2] The applicant set out numerous grounds upon which he based his application.
These can be reduced to the following: (a) the court erred in its interpretation and
application of section 13 (7) of the South African Police Act 68 of 1995; (b) the court
erred in finding that the requirements of section 22 ( b) of the Criminal Procedure Act
51 of 1977 (CPA) had been met; (c) the court erred in finding that the requirements
of section 40 (1) ( b) and ( h) of the CPA had been met; (d) the court erred in finding
that the applicant was instructed by the police, after he had obtained bail, to place
the dagga plants inside a bag and take them home; (e) regarding the alleged
unlawful detention, the court erred in not applying the principles set out in Zealand v
Minister of Justice and Constitutional Development and Another ;1 (f) the court erred
in finding that Sgt Sisa Ntlatywa exercised his discretion correctly; and (g) the court
erred in finding that the assault carried out on the applicant did not demons trate the
unlawfulness of his arrest.
[3] In terms of section 17 (1) of the Superior Courts Act 10 of 2013, a court may
only give leave to appeal where the court is of the opinion that, inter alia, the appeal
would have a reasonable prospect of success or the re is some other reason why the
appeal should be heard. The Supreme Court of Appeal remarked, in MEC for Health,
Eastern Cape v Mkhitha,2 that
‘. . . Once again it is necessary to say that leave to appeal, especially to this
court, must not be granted unless there truly is a reasonable prospect of
success. Section 17 (1) ( a) of the Superior Courts Act 10 of 2013 makes it
clear that leave to appeal may only be given where the judge concerned is of
the opinion that the appeal would have a reasonab le prospect of success; or
there is some other compelling reason why it should be heard.
. . . An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance of success on
appeal. A mere p ossibility of success, an arguable case or one that is not
hopeless, is not enough. There must be a sound, rational basis to conclude
that there is a reasonable prospect of success on appeal.'3
[4] Turning to the grounds of appeal in the present matter, it c annot be said that
there was evidence of an intention on the part of the police to cordon off an area and
to conduct searches without a warrant, as envisaged under section 13 (7) of the
to conduct searches without a warrant, as envisaged under section 13 (7) of the
South African Police Act 68 of 1995. This is a drastic remedy. The tes timonies of the
1 2008 (4) SA 458 (CC).
2 2016 JDR 2214 (SCA).
3 At paragraphs [16] and [17].
witnesses provided no support for this, and the applicant’s legal representative
appeared to concede the point in argument.
[5] In relation to the requirements of section 22 ( b) of the CPA, the applicant
contended that Sgt Ntlatywa lacked reasonable grounds upon which to believe that a
warrant would be issued and that any delay would defeat the object of the search.
The applicant was, moreover, unaware of the impending search. The officer’s
uncontested evidence, however, was that he had receive d information from an
informer that the applicant was dealing in dagga. The lateness of the hour and the
distance between the applicant’s residence and the nearest town would have
allowed the applicant to have concealed or disposed of any evidence in the c ase of
delay.
[6] Regarding section 40 (1) (b) and (h) of the CPA, the applicant referred to case
law to argue that Sgt Ntlatywa’s suspicion was flawed because he had relied solely
on the information of the informer before proceeding to the applicant’s resid ence.
This ignores, however, the undisputed fact that the officer attempted to verify the
information by questioning the applicant and then conducting a search, whereupon
he discovered the dagga. It was abundantly clear that he did not carry out the arrest
solely on the strength of what was communicated to him by the informer.
[7] The applicant mentioned, too, the decision in Minister of Safety and Security v
Zulu,4 saying that the decision in the present matter amounted to a conflicting
judgment. In that ma tter, an informer told a police officer that he had seen the
respondent with two other men in possession of suspected stolen property. The
officer went to the respondent’s address but did not carry out a search and did not
recover any of the property in qu estion. The respondent told the officer that he could
point out the house where the property was being kept. The officer proceeded,
however, to arrest the respondent on charges of housebreaking with intent to steal,
however, to arrest the respondent on charges of housebreaking with intent to steal,
and theft. The appeal court quoted, with approval, the judgment of the magistrate in
the court a quo, which went as follows:
4 2012 JDR 0097 (KZP).
‘It is quite clear to this court that [on] the facts of the evidence of Inspector
Lambrechts when he attended the house of the plaintiff, no such goods were
found on the plaintiff or his premises and this in itself should have alerted him
to the reliability of the information which he was intent om acting upon.
Another important fact in my view is that when he arrested the plaintiff in this
matter he himself did not search the plaintiff’s premises and I found it strange
in light of the fact that he ought or should have done so, bearing in mind that
he was the arresting officer who was given the information on about the
plaintiff’s alleged involvement in the housebreaking or the possession of the
stolen property.
By arresting the plaintiff before searching the house and before establishing a
de facto reliance on the information he in fact placed the cart before the
horse.’5
[8] The appeal court, per Steyn J, held that the offi cer had relied on someone
else’s suspicion, which he failed to test and verify. It was not a reasonable suspicion,
considering what transpired at the respondent’s address.6
[9] The facts in Zulu are not the same as those in the present matter. Sgt
Ntlatywa tested and verified the information of the informer by questioning the
applicant and searching the premises before discovering the dagga; the arrest was
carried out on that basis. The case is distinguishable.
[10] Turning to when the applicant was instructed to place dagga plants inside a
bag, the available record of the trial proceedings does not appear to indicate that this
was done before the applicant obtained bail. The primary issues were, nev ertheless,
the applicant’s credibility as a witness and whether the dagga was indeed found at
his residence. Precisely when the applicant was instructed to accept possession of
the plants and return home was a secondary issue; his testimony in this regard
merely served to confirm that the evidence was discovered during the search.
5 At paragraph [5].
5 At paragraph [5].
6 At paragraph [15].
[11] In relation to the alleged unlawful detention, it is correct that Zealand
confirmed that an interference with physical liberty was prima facie unlawful; a
plaintiff merely had t o plead such interference for the defendant to be required to
justify his or her detention. 7 This is what the respondent in the present matter did,
however, when Sgt Ntlatywa testified that a written notice to appear would have been
inadequate. The quanti ty of the dagga that was found at the applicant’s residence
implicated him in a serious offence, necessitating his arrest and subsequent
detention before he was brought before court.
[12] The applicant also referred to Mvu v Minister of Safety and Security and
Another.8 In that regard, Willis J held that, even where an arrest was lawful, a police
officer was still required to apply his or her mind to the circumstances of such
detention and whether it was necessary at all. 9 It was clear from Sgt Nt latywa’s
testimony, however, that he had considered a combination of factors at the time: the
crime prevention exercise was motivated by a high incidence of drug -related
offences in the area; a substantial quantity of dagga was found; the applicant was
unknown to the police; the discovery of the dagga was made late at night; and there
was a considerable distance between the applicant’s village of Nomadolo and the
Ngqeleni police station. The applicant faced serious consequences if he was found
guilty on a charge of possession or supplying of dagga. This was not a matter where
a written notice to appear would have been appropriate.
[13] This leads to the question of Sgt Ntlatywa’s exercise of his discretion. The
applicant contended that his fixed address and lac k of any indication that he was a
flight risk ought to have been considered before the officer arrested him. The court
found, however, that there was a rational basis for the officer’s exercise of his
discretion, as set out in the judgment.
discretion, as set out in the judgment.
[14] Regarding the assault on the applicant, he referred to Mahlangu and Another
v Minister of Police ,10 where the Constitutional Court upheld an appeal against the
refusal to award damages for the appellants’ alleged unlawful detention. In doing so,
7 Zealand, at paragraph [25].
8 2009 (6) SA 82 (GSJ).
9 At paragraphs [9] and [10].
10 2021 (2) SACR 595 (CC).
the court found that th e detention was premised on an inadmissible confession,
extracted after the appellants were subjected to police torture and coercion. 11 As
shocking as the conduct of Sgt Ntlatywa and his colleagues may have been in the
present matter, it was simply never p leaded. The reason for this remains entirely
unknown. The court was, in the circumstances, constrained to decide the case set
out in the pleadings, no more. The applicant did not pursue the point strenuously
during argument.
[15] The court stands by its findin gs. It is, moreover, not persuaded that the
applicant has met the requirements of section 17 (1) of the Superior Courts Act 10 of
2013. Leave cannot be given.
[16] Consequently, the following order is made:
(a) the application is dismissed; and
(b) the applicant is ordered to pay the respondent’s costs.
_________________________
JGA LAING
JUDGE OF THE HIGH COURT
APPEARANCE:
For the applicant: Mr Pangwa
Instructed by: Caps Pangwa and Associates
No. 33 Callaway Street
MTHATHA
Tel: 047 532 3664
Email: caps@mweb.co.za
11 At paragraphs [44] and [45].
For the respondent: Adv Sintwa
Instructed by: The State Attorney
Broadcast House
94 Sission Street
Fortgale
MTHATHA
Ref: 491/19 – A2M
Date heard: 25 July 2025.
Date delivered: 5 August 2025.