IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN

Reportable
Appeal case no: A94/2023
Court a quo case no: 327/2021


In the matter between:
ZIMU, MOJALEFA GLEN APPELLANT
and
THE MINISTER OF POLICE RESPONDENT

Neutral citation: Mojalefa Glen Zimu v The Minister of Police (A94/2023) [2025] ZAFSHC
175 (13 June 2025)
Coram: Mbhele AJP et Van Zyl J et Greyling-Coetzer AJ

Heard: 24 March 2025

Delivered: 13 June 2025

Judgment by: Greyling-Coetzer AJ

Summary: Civil procedure – admissions – unlawful arrest and detention – whether
respondent was liable for entire period of detention.

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ORDER


1 The late service and filing of the appeal record is condoned.
2 The late application for the allocation of a date for hearing of the appeal and notice
of set down are condoned.
3 The appellant’s appeal is reinstated.
4 The late filing of the respondent’s heads of argument is condoned.
5 The appeal is dismissed with costs, which costs shall include counsel fees to be
taxed on Scale B.

JUDGMENT

Greyling-Coetzer AJ
[1] On 27 January 2021 , Mr Mojalefa Glen Zimu (the appellant) instituted an action
against the Minister of Police (the respondent) for damages in the amount of R480 000. The
damages arose from the appellant’s alleged unlawful arrest and unlawful detention for the
period 20 June 2020 to 29 June 2020 by members of the South African Police Service (the
SAPS). The respondent defended the action.
[2] On 13 March 2023, Reinders J found for the appellant and awarded damages in an
amount of R30 000. In doing so the court a quo limited the period for which the respondent
was held liable to compensate the appellant from date of arrest up to the date of the
appellant’s first appearance in court. Displeased with the outcome, the appellant applied for
leave to appeal against the whole judgment and order of Reinders J.
[3] On 26 May 2023, Reinders J granted leave to appeal only in respect of para 7 of
the appellant’s application for leave to appeal. Paragraph 7 reads as follows: ‘ The learned

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judge erred in not finding that the defendant, having regard to the pleadings, the body of evidence,
the probabilities and applicable case law is liable for the entire period of detention.’
[4] The effect of such limitation being that this court is not empowered to entertain
grounds of appeal in respect of which leave to appeal was refused.1
[5] The issue to be adjudicated on appeal is thus whether the respondent is liable to
compensate the appellant for the entire period of detention following the unlawful arrest.
[6] The respondent has not filed a cross -appeal. It thus stands that the appellant was
unlawfully arrested without a warrant on 20 June 2020, and detained subsequent to his
arrest from 20 June 2020 to 22 June 2020 when he was brought before the Phuthaditjaba
Magistrate’s Court. On 22 June 2020 the case was postponed to 29 June 2020. He was
detained at Harrismith Correctional Facilit y until 29 June 2020 , when he was released on
bail in the amount of R500. The charges were later withdrawn against him.
In the court a quo
[7] In the court a quo the appellant contended that the only issue s in dispute per the
pleadings were the wrongfulness and unlawfulness of the arrest and detention , and where
the appellant resides. On behalf of the respondent it was submitted that the appellant was
arrested, detained and further detained pursuant to his first court appearance . T he
respondent however disputes any liability in respect of these events as pleaded.
[8] Against aforementioned the court a quo proceeded to receive the evidence o f
Constable Mokoena, the investigating officer, Constable Makalima as arresting officer, the
appellant and Ben Joseph Zima.
[9] During the evidence of Constable Mokoena , an objection was raised by the
appellant to the admissibility of Constable Mokoena’s evidence . The basis of the objection
was that the evidence of Constable Mokoena, to the extent that it indicates that the SAPS

was that the evidence of Constable Mokoena, to the extent that it indicates that the SAPS
did not oppose bail, was inadmissible in light of the admissions in the pleadings, specifically
paras 4.2 and 4.3 of the particulars of claim. Counsel for the appellant contended that these
admissions were conclusive of the fact that the respondent is liable for the entire period of
detention, including the detention post the first court appearance.
[10] On behalf of the respondent, it was argued that the admission of certain facts should
not be viewed in isolation. Instead, the whole plea wherein liability is denied and especially

1 Harlech-Jones Treasure Architects CC v University of Fort Hare 2002 (5) SA 32 (E) at 50B-C and 52A.

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para 10.2, where the respondent pleads that the appellant’s continued detention after
appearing in court was at the instance of the court, should be taken into account. The latter
also served as the basis for introducing the evidence.
[11] The court a quo allowed the evidence and reasoned that the appellant will have an
opportunity to cross-examine and argue against reliance on said evidence at the end of the
trial. During argument both parties repeated their respective contentions set out above.
[12] The court a quo found that the admissions on the pleadings were not dispositive of
the question of the respondent’s liability for the entire period of detention . Furthermore,
reliance on the pleadings without further adjudication of the evidence before court would be
misplaced and negate the causality test as enunciated in De Klerk v Minister of Police 2 (De
Klerk).
[13] The court a quo proceeded to consider the evidence of Constable Mokoena and
found that the postponement on the first court appearance was not at the instance of the
respondent, but a decision of the court, and concluded that compensation for the appellant’s
unlawful detention should be limited to the period before his first court appearance.
[14] In this court, the appellant raised the same argument. In amplification it was
contended that para 10.2 of the plea was directed at the alternative claims, which alternative
claims were abandoned. Therefore, so the argument went, the respondent could not rely on
para 10.2 of the plea to adduce the evidence of Constable Mokoena that she did not oppose
bail at the appellant’s first appearance.
[15] Further to the admissions argument, the appellant contended that Constable
Mokoena failed to place the prosecutor in a position to make an informed decision regarding
bail, and failed to attend court or ensure that the docket was brought to court at the
appellant’s first appearance. For these reasons the SAPS should be held liable for the

appellant’s first appearance. For these reasons the SAPS should be held liable for the
appellant’s continued detention following the initial court appearance.
[16] Lastly, the appellant submitted that should the court find the SAPS liable for the full
duration of the detention, the award of damages ought to be increased to R400 000.
[17] On behalf of the respondent, it was submitted that the court correctly applied the
principle of causation as set out in De Klerk, and that the appellant had failed to establish
the necessary causal link. It was further contended that for an admission of fact in a pleading

2 De Klerk v Minister of Police [2019] ZACC 32; 2020 (1) SACR 1 (CC) (De Klerk).

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to be binding on the respondent in the manner asserted by the appellant, such admission
must be either expressly stated or necessarily implied.
[18] Prior to addressing the limited issue on appeal, it is necessary to consider the
appellant’s submissions regarding the admissions as conclusive judicial facts and the
admissibility of Constable Mokoena’s evidence relating to bail. These submissions bear
significantly on the question of what was established by the pleadings and the composition
of the body of evidence. It is therefore appropriate that these issues be determined first.
[19] The appellant’s claim was pleaded as follows:
‘AD CLAIM – UNLAWFUL ARREST AND/OR DETENTION
4.
4.1 On or about 20 June 2020 at the Plaintiff’s permanent place of residence he was wrongfully
and unlawfully arrested by members of the Phuthaditjaba Police Station on alleged charges of
pointing of a firearm, malicious damage to property and assault to do grievous bodily harm.
4.2 The aforementioned arrest was effected without a warrant of arrest.
4.3 The Plaintiff was thereafter transported , detained and charged at the holding cells of the
Phuthaditjaba Police Station at the instance of the SAPS members until 29 June 2020.
4.4 On 22nd of June 2020 the Plaintiff was transported to the Phuthaditjaba Magistrate’s Court
where members of the Defendant opposed his bail and the matter was further postponed.
4.5 The Plaintiff was thereafter transported to the Harrismith Correctional Facility and further
detained until 29 June 2020.
4.6 On the 29th of June 2020 the Plaintiff was granted bail in the sum of R500.00 and warned
to appear on the next occasion at the Phuthaditjaba Police Station.’ (Own underlining.)
[20] In p ara 6 of the particulars of claim the appellant pleads that : ‘The arrest and
detention was unlawful due to the fact that : . . . ’ and then proceeds to list under three
subparagraphs that the SAPS did not take s 12 of the Constitution of the Republic of South

subparagraphs that the SAPS did not take s 12 of the Constitution of the Republic of South
Africa into account; t he appellant was arbitrarily and without good cause deprived of his
freedom and that there were no grounds to interfere with the appellant’s constitutional rights.
[21] This is followed by paras 7, 8 and 9 wherein the appellant pleaded three alternatives,
being that there w ere no prima facie and/or reasonable grounds to arrest and detain the
appellant; that the members of the SAPS did not exercise their discretion and/or the SAPS

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members did not comply with the prescripts of the Standin g Order (General) 341 of the
SAPS Standing Orders.
[22] The alternatives were pleaded cumulatively and/or in the alternative through the use
of the phrase ‘AND/OR’. Throughout the particular s of claim no differentiation is made
between detention directly after arrest and detention pursuant to the first court appearance.
Save in paragraph 9 the words ‘subsequent detention’ appear.
[23] In response to the facts pleaded in para 4 of the particulars of claim, the respondent
admitted the arrest but denied the unlawfulness thereof and pleaded that the arresting officer
was acting in accordance with ss 40(1)(b) and 40(1)(h) of the Criminal Procedure Act 51 of
1977 (as amended) (CPA). The same is pleaded in respect of paras 7 and 8 of the particulars
of claim. The contents of paras 4.2 to 4.6 were admitted and para 6 of the particular of claim
was denied in its totality.
[24] Dealing with the third ‘and/or’ alternative and where specific reference is made to
subsequent detention, the respondent pleads in paragraph 10.2 of the plea that:
‘in amplification of the denial above, the defendant pleads that the arrest and the detention were
lawful, and further the detention of the plaintiff was in accordance with section 51 of the Criminal
Procedure Act 51 of 1977 and the further detention of the plaintiff was at the instance of the court’.
[25] In the relevant portion of the pre-trial minute the parties recorded that the admissions
are as contained in the pleadings and directly thereafter the common cause facts are listed
to be:
‘The Plaintiff’s names; The Court’s jurisdiction; The arrest and detention; The arrest was carried out
without a warrant; That all charges against the Plaintiff were withdrawn; That the said SAPS officials
were acting within the course and scope of their employment with the Defendant; That the Plaintiff
has complied with Section 3(1) of Act 40 of 2002 and no Special Plea was raised by the Defendant.’

[26] Under the heading disputed facts it was listed: ‘Remainder of the Plaintiff’s citation;
The lawfulness of the arrest and detention ; That the Defendant is liable for any damages
and the Quantum as claimed.’
[27] The Constitutional Court in De Klerk restated the requirements of a claim under the
actio iniuriarum for unlawful arrest and detention to be:
‘(a) the plaintiff must establish that their liberty has been interfered with; (b) the plaintiff must establish
that this interference occurred intentionally. In claims for unlawful arrest, a plaintiff need only show
that the defendant acted intentionally in depriving their liberty and not that the defendant knew that
it was wrongful to do so; (c) the deprivation of liberty must be wrongful, with the onus falling on the

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defendant to show why it is not; and (d) the plaintiff must establish that the conduct of the defendant
must have caused, both legally and factually, the harm for which compensation is sought .’3 (Own
underlining.)
[28] The appellant and respondent were ad idem that the wrongful and unlawfulness of
the detention w ere in dispute , and consequentially the liability of the respondent for
damages, notwithstanding the admission of the facts in paragraph s 4.2 and 4.3 of the
particulars of claim. What the parties were plainly not ad idem on was the legal effect of the
admissions contained in paragraphs 4.2 and 4.3 of the particulars of claim. This crucial
distinction appears to have been overlooked or misconstrued before the court a quo.
[29] Put differently, did the admissions that:
‘4.3 The Plaintiff was thereafter transported and detained and charged at the holding cells of the
Phuthaditjhaba Police Station at the instance of the SAPS members until the 29th of June 2020.’ and
‘4.4 On 22nd of June 2020 the Plaintiff was transported to the Phuthaditjaba Magistrate’s Court where
members of the Defendant opposed his bail and the matter was further postponed’ (own underline)
have the result that the detention following the first court appearance was unlawful and
established a causal link sufficient to attribute liability to the respondent without the need for
further proof.
[30] It is trite that a party is usually bound by its pleadings and generally the admission(s)
made therein. As held in AA Mutual Insurance Association Ltd v Biddulph and Another:4 ‘For
an admission of a fact in a plea has important and serious consequences for a defendant. .
.’.5 When a fact is admitted it would be unnecessary for the party in whose favour the
admission was made to adduce evidence to prove the admitted fact and incompetent of the
other party making the admission to adduce evidence to contradict i t.6 Parties are equally
bound by their pre-trial agreement.

bound by their pre-trial agreement.
[31] An admission in its formal sense also requires at least an intention, explicit or
inferred, and unequivocal, to remove a fact that depends on proof from the field of
contention.7 Accordingly, for the consequences of an admission to be sustained against a
defendant, it must clearly and unequivocally appear from the pleadings that such admission

3 Ibid para 14.
4 AA Mutual Insurance Association Ltd v Biddulph and Another 1976 (1) SA 725 (A) (AA Mutual
Insurance).
5 Ibid at 735A.
6 Gordon v Tarnow 1947 (3) SA 525 AD at 531-532.
7 Saayman v Road Accident Fund [2010] ZASCA 123; 2011 (1) SA 106 (Saayman) para 28.

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was made either expressly or by necessary implication. Failing this, the defendant may be
prejudiced.8
[32] In Saayman v Road Accident Fund 2011 (1) SA 106 (SCA) it was stated: ‘In the
context of civil proceedings an admission is a statement against interest which has the effect of
binding the party on whose behalf it is made. If that effect is absent the statement cannot amount to
an admission and the well established rules relating to the withdrawal of admissions cannot apply to
it. In fact, a withdrawal is strictly unnecessary, and prejudice to the other party is not an issue.’9
[33] As quoted with approval in AA Mutual Insurance Association Ltd, De ViIliers JA said
in Rance v. Union Mercantile Co. Ltd 1922 AD 312 at 315:
'The fact of the matter is the party making the admission is bound by it to the extent to which the
admission goes. To press it against him beyond that, under all circumstances, may lead to
inequitable results. The passage in Beck, Pleading in Civil Actions , 3rd ed., para. 38, pp. 54 - 5,
relating to an admission in a plea, is also apposite and supports the above approach. It reads: “Its
effect is to bind the party making it and he is bound to the extent of its inevitable consequences or
necessary implications unless these are specially stated to be denied. . . But an admission does not
entail the admission of anything which cannot fairly be regarded as an inevitable consequence or a
necessary implication.”’10
[34] The purpose of pleadings and pre-trial procedures is to clarify the issues before the
court and to inform the parties of the case they must meet, thereby defining the matters upon
which reliance is to be placed. In the present matter, however, the particul ars of claim, the
plea, and the pre-trial minute were each marked by defects and inaccuracies. Neither party
utilised the available clarification remedies.11
[35] In adjudicating an exception to a pleading, it is an established principle that

[35] In adjudicating an exception to a pleading, it is an established principle that
pleadings are to be construed holistically. The court should eschew an overly technical
approach and instead look at the pleadings benevolent ly rather than over -technical.12 By
applying parity of reasoning, pleadings ought to be examined through the same lens when
the court reviews them to ascertain the implication of an admission or disputed issues as
are present herein.

8 AA Mutual Insurance at 735C.
9 Saayman para 28.
10 AA Mutual Insurance Association Ltd 735C-F.
11 Ibid at 736B and D-E.
12 Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461
(SCA) at 465H; First National Bank of SA Ltd v Perry NO 2001 (3) SA 960 (SCA) at 972I.

9
[36] The record of proceedings does not disclose any abandonment of the alternative
claims pleaded in paragraphs 7 to 9 of the particulars of claim, and therefore does not
exclude paragraph 10.2 of the plea, as contended on behalf of the appellant. Accordingly,
paragraph 10.2 remained a relevant part of the pleadings before court.
[37] Having regard to that set out above and upon a holistic examination of the pleadings
in their entirety, together with the contents of the pre -trial minute, the admissions of
paragraphs 4.2 and 4.3 of the particulars of claim cannot be regarded as clear and
unequivocal. Nor is it justified to imply that these admissions constitute an acknowledgment
by the respondent of unlawfulness and causation, such as to preclude the respondent from
adducing evidence on those issues or to constrain the court a quo’s inquiry accordingly.
[38] Even assuming that the admissions of paras 4.2 and 4.3 of the particulars of claim
were clear and unequivocal, such admissions do not, in all circumstances, bind the court. In
Canaric NO v Shevil's Garage 1932 TPD 196 the court was for the purpose of argument
prepared to accept:
‘With regard to the first point I am prepared to assume that the Court may disregard an admission
made in the pleadings, where it is clear after a full investigation that this admission is contrary to the
facts and where injustice would result from an adherence to the admission.'
[39] A court may ignore an admission on the pleadings when it appeared clearly , after
full investigation of the facts, that the admission did not accord with the facts and where
injustice would result if the admissions were given effect to.13
[40] In the circumstances the court a quo cannot be criticised for, upon being alerted to
the admissions of paras 4.2 and 4.3 of the particulars of claim, electing to proceed with a full
enquiry into the facts. This included receiving the evidence of Constable Mokoena, who was

enquiry into the facts. This included receiving the evidence of Constable Mokoena, who was
subjected to extensive cross -examination, hearing the evidence of the appellant and
considering full argument presented by counsel on behalf of the parties. The court was, in
the circumstances, entitled to consider the issue of causation notwithstanding the
admissions.
[41] Having found as aforesaid, it is now considered, in light of the pleadings, the body
of evidence, the probabilities and the applicable case law , whether the respondent is liable
for the post-first appearance detention.

13 Fourie v Sentrasure Bpk 1997 (4) SA 950 (NC) at 973I-J and 974B-C.

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[42] In Minister of Police and Another v Erasmus 14 the court sets out the recent
developments relating to the law concerning unlawful arrest and detention, where it states:
‘. . . When the police wrongfully detain a person, they may also be liable for the post -hearing
detention of that person. The cases show that such liability will lie where there is proof on a balance
of probability that, (a) the culpable and unlawful conduct of t he police, and (b) was the factual and
legal cause of the post -hearing detention. In Woji v Minister of Police [2014] ZASCA 108; 2015 (1)
SACR 409 (SCA), the culpable conduct of the investigating officer consisting of giving false evidence
during the bail application caused the refusal of bail and resultant deprivation of liberty. Similarly,
in Minister of Safety and Security v Tyokwana [2014] ZASCA 130; 2015 (1) SACR 597 (SCA) ,
liability of the police for post-hearing detention was based on the fact that the police culpably failed
to inform the prosecutor that the witness statements implicating the respondent had been obtained
under duress and were subsequently recanted and that consequently there was no credible evidence
linking the respondent to the crime. In De Klerk v Minister of Police [2019] ZACC 32; 2020 (1) SACR
(CC) paras 58 and 76, the decisive consideration in both the judgments that held in favour of the
appellant was that the investigating officer knew that the appellant would appear in a “reception
court” where the matter would be remanded without the consideration of bail. Finally, in Mahlangu
and Another v Minister of Police [2021] ZACC 10; 2021 (2) SACR 595 (CC), the investigating officer
deliberately supressed the fact that a confession which constituted the only evidence ag ainst the
appellants, had been extracted by torture and thus caused their continued detention.’
[43] The most germane principles dealt with by the Constitutional Court in Mahlangu and

[43] The most germane principles dealt with by the Constitutional Court in Mahlangu and
Another v Minister of Police,15 and relevant to the present matter are that the Minister of
Police was liable for post -appearance detention where the wrongful and culpable conduct
of the police had materially influenced the decision of the court to remand the person in
question in custody. The court further noted that this reasoning ‘. . . effectively means that it
is immaterial whether the unlawful conduct of the police is exerted directly or through the
prosecutor’.16
[44] The court a quo found the arrest and detention prior to the first court appearance to
be unlawful, therefore wrongful. Thus, as in De Klerk, there are prior wrongful conduct which
factually caused the appellant to suffer harm. When regard is had to the particulars of claim
and although not as eloquently pleaded as we would have hoped, the appellant pleaded that
because of the arrest, which was unlawful, he was detained from date of arrest, being 20
June 2020, until his release on bail on 29 June 2020.

14 Minister of Police and Another v Erasmus [2022] ZASCA 57.
15 Mahlangu and Another v Minister of Police [2021] ZACC 10; 2021 (2) SACR 595 (CC).
16 Ibid para 33.

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[45] No reliance was placed in the pleadings on any omission by members of the SAPS
to prevent the applicant’s continued detention as a basis for establishing wrongfulness
following his first court appearance. However, it was submitted and argued before this Court
that Constable Mokoena failed to ob tain and furnish the necessary information that would
have enabled the prosecutor to make an informed decision on whether to oppose bail at the
first appearance. In support of this contention, it was submitted that Co nstable Mokoena
neither attended court nor ensured that the docket was brought to court on the day of the
first appearance, thereby depriving the prosecutor of the information required.
[46] The appellant’s pleaded case is that the unlawful arrest, rather than an omission by
members of the SAPS at the time of his first court appearance before, was the cause of the
harm he suffered. As such this case will be approached on said basis and as one of legal
causation and not as one of wrongfulness based on an omission by Constable Mokoena at
the first court appearance.
[47] As in the court a quo , the appellant in this court placed reliance on De Klerk in
seeking to hold the respondent liable for the entire period of detention founded upon the
contention that the appellant has established causation. The general principles of causation
were aptly set out in De Klerk, where it is stated:
‘[24] Causation comprises a factual and legal component. Factual causation relates to the
question whether the act or omission caused or materially contributed to the harm. The “but-for” test
(conditio sine qua non) is ordinarily applied to determine factual causation. If, but for a wrongdoer’s
conduct, the harm would probably not have been suffered by a claimant, then the conduct factually
caused the harm…
[25] Legal causation is concerned with the remoteness of damage. This entails an enquiry into

[25] Legal causation is concerned with the remoteness of damage. This entails an enquiry into
whether the wrongful act is sufficiently closely linked to the harm for legal liability to ensue. Generally,
a wrongdoer is not liable for harm that is too remote from the conduct concerned or harm that was
not foreseeable.
[26] The function of legal causation is to ensure that liability on the part of the wrongdoer does
not extend indeterminately…The question of legal causation is whether that further harm is too
remote from the initial conduct for liability to be imputed to the defendant …
. . .
[28] Legal causation is resolved with reference to public policy…

12
[29] Legal causation involves a flexible test that may consider a myriad of factors . . . The
traditional criteria are, among others, reasonable foreseeability, adequate causation, whether a
novus actus interveniens intrudes and directness…
[30]. . . It follows that the traditional criteria must be treated as being subsidiary to the considerations
of public policy, reasonableness, fairness and justice . . .’ (Footnotes omitted.)
[48] As in De Klerk, the factual component of causation was satisfied in this case. But
for the arrest, the appellant would probably not have been brought before the court and
consequently remanded for a week to 29 June 2020.
[49] As referred to by the court a quo, the court in De Klerk held:
‘. . . the liability of the police for detention post -court appearance should be determined on an
application of the principles of legal causation, having regard to the applicable tests and policy
considerations. This may include a consideration of whether the po st-appearance detention was
lawful. It is these public policy considerations that will serve as a measure of control to ensure that
liability is not extended too far. The conduct of the police after an unlawful arrest, especially if the
police acted unlawfully after the unlawful arrest of the plaintiff, is to be evaluated and considered in
determining legal causation. In addition, every matter must be determined on its own facts – there is
no general rule that can be applied dogmatically in order to determine liability.’17 (Footnotes omitted.)
[50] As in De Klerk the concerned SAPS member (therein the arresting officer , herein
Constable Mokoena , the investigating officer) recommended that the appellant could be
released on bail. In De Klerk a key factor that suggested the Minister of Police should not
be held liable for the further detention was the mechanical and unlawful nature of the
decision by the Magistrate to rema nd Mr De Klerk in c ustody, as founded in the principles
of separation of powers.18

of separation of powers.18
[51] However, the court in De Klerk found that:
‘While there are strong public policy reasons to only find the Minister of Police delictually liable in
this case, there are, in my view, stronger public policy reasons for finding fully for the applicant on
these facts. This is where I part ways with the third judgment. Ultimately, the test for legal causation,
while infused with constitutional considerations, must remain flexible and fact -sensitive. I disagree
with the third judgment to the extent that it finds that the separation of powers invariably means that
the police cannot be liable for detention after a remand order. All relevant factors must be considered
on a case -by-case basis. There may be times, as in this case, where the police must be liable

17 De Klerk para 63.
18 Ibid De Klerk para 66 and discussion on paras 67-74.

13
notwithstanding the persuasive separation of power considerations expressed in the third
judgment.’19
[52] The court in De Klerk proceeded to state and find that:
‘. . . subjective foresight of harm cannot itself necessarily imply that harm is not too remote from
conduct. It is, however, a weighty consideration. In the present matter, Constable Ndala subjectively
foresaw the precise consequence of her unlawful arrest of the applicant. She knew that the
applicant’s further detention after his court appearance would ensue. She reconciled herself to that
consequence. What happened in the reception court was not, to Constable Ndala’s know ledge, an
unexpected, unconnected and extraneous causative factor – it was the consequence foreseen by
her, and one which she reconciled herself to. In determining causation, we are entitled to take into
account the circumstances known to Constable Ndala. These circumstances imply that it would be
reasonable, fair, and just to hold the respondent liable for the harm suffered by the applicant that
was factually caused by his wrongful arrest. For these reasons, and in the circumstances of this
matter, the cou rt appearance and the remand order issued by the Magistrate do not amount to a
fresh causative event breaking the causal chain.’20
[53] The evidence before the court a quo was that Constable Mokoena in preparing the
appellant for court complete d the pro-forma A6-bail form (bail form) on 21 June 2020 , the
day after the arrest. Thereupon she, amongst others, indicated that the appellant had a fixed
address, was easy to trace, was co-operative, posed no danger to a person or community,
would not interfere with witnesses, should not be kept in prison, should not be placed under
electronic monitoring and no special condition s were required in respect of his release on
bail.
[54] Constable Mokoena explained further that she initially ticked off ‘ no’ next to the
question ‘ can be released on bail? ’, but changed it on the same day by crossing it out

question ‘ can be released on bail? ’, but changed it on the same day by crossing it out
pursuant to confirming that the appellant had no pending cases against him. She elaborated
upon this during cross-examination, stating that as soon as an arrested person is processed
you can access the system by utilising an identity number to ascertain if the person has any
pending cases. This is done to verify the verbal indication that a n arrested person will give
you in respect of pending cases or previous convictions. Once she checked the system on
21 June 2020, she changed the answer from ‘no’ to ‘yes’ pertaining to her opinion in respect
of whether the appellant could be released on bail. Constable Mokoena testified that the

19 Ibid De Klerk para 75.
20 Ibid De Klerk para 75

14
content of the bail form thus indicated her election that she did not oppose the appellant
being released on bail.
[55] According to Constable Mokoena, having completed the bail form, the docket with
the bail information as set out on inter alia the bail form was sent to court and indicated to
the prosecutor that the appellant could be released on bail when he arrive d at court. She
confirmed that where it has been indicated, as in this matter, that the arrested person could
be released on bail, she as an investigating officer would not attend court on the first court
appearance. The prosecutor would receive the docket with the bail information, consider
same and make the decision on how to proceed. She explained that engagement between
the investigating officer and prosecutor w ould only ensue if there is an indication that an
investigating officer intends to oppose bail or required clarity on something, which did not
happen in the present matter.
[56] The appellant led no evidence in respect of that which specifically transpired during
his first court appearance. His evidence was simply that he appeared on Monday 22 June
2020 with the assistance of a lawyer, Mr Shabangu, and ‘they’ said to him that the matter is
going to be postponed for seven days for a bail application.
[57] This matter is factually distinguishable from De Klerk. In the present case, there is
no indication that Constable Mokoena subjectively foresaw the specific consequence of the
appellant’s unlawful arrest. No evidence was placed before the court a quo to suggest that
Constable Mokoena knew or ought to reasonably have known that the appellant’s continued
detention following his first court appearance would result. On the contrary, Constable
Mokoena’s evidence indicated that she expected the appellant to be released on bail, as
she had completed the rel evant bail form recommending tha t bail be granted. This
expectation is further supported by Constable Mokoena’s no n-attendance of court on the

expectation is further supported by Constable Mokoena’s no n-attendance of court on the
appellant’s first appearance, which was informed by the relevant information she provided
to the prosecutor by way of the docket and completed bail form, in accordance with the
standard practice where bail is not opposed.
[58] Taking into account the circumstances known to Constable Mokoena, it cannot be
concluded that Constable Mokoena reconciled or should have reconciled herself to th e
consequence that the appellant would not be granted bail and that the matter would be
postponed. There was no suggestion that as in De Klerk the court was a reception court
where the issue of bail would routinely be postponed. The consequence was thus not
foreseen by her, and one which she reconciled herself to.

15
[59] In Botha v Minister of Safety and Security, January v Minister of Safety Security21
when dealing with the obligation of a police official relating to detention it was stated that:
‘. . . This, in my view, includes any further detention for as long as the facts which justify the detention
are within the knowledge of the police official. Such police official has a legal duty to inform the public
prosecutor of the existence of information which would justify the further detention. Where there are
no facts which justify the further detention of a person, this should be placed by the investigator
before the prosecutor of the case and the law casts an obligation on the police official to do so…
This information, which must have been established by the police officer, will enable the public
prosecutor and eventually the magistrate to have an informed decision whether or not there is any
legal justification for the further detention of the person.’22 (Footnotes omitted and own underlining.)
Constable Mokoena’s evidence revealed that she executed her obligation and placed
information before the prosecutor that there were no facts justifying the appellant’s further
detention.
[60] The circumstances of this matter does not imply that it would be reasonable, fair
and just to hold the respondent liable for the entire period of detention. Having regard to the
pleadings, the body of evidence, the probabilities and applicable case law, and on the basis
of the reasons set out above, there is no justification to interfere with the judgement and
order of the court a quo.
Reinstatement of appeal and condonation for late filing of the respondent’s heads of
argument
[61] It is necessary to briefly deal with the peripheral issues as they unfolded during the
hearing of the appeal.
[62] Approximately one month prior to the scheduled hearing of this appeal on 24 March
2025, the appellant instituted a substantive application for the reinstatement of the appeal.

2025, the appellant instituted a substantive application for the reinstatement of the appeal.
The respondent was required to file a notice of intention to oppose within ten days of service,
and an answering affidavit within fifteen days thereafter. Due to the timing of the application,
the respondent's answering affidavit was served only one court day before the appeal was
due to be heard. Consequently, it became necessary for this court to first determine the
application for reinstatement before considering the merits of the appeal.
[63] The basis for the application for reinstatement was, in essence, that although the
appellant complied with Uniform Rule 49(2) by timeously filing the notice of appeal, he failed

21 Botha v Minister of Safety and Security, January v Minister of Safety Security [2011] ZAECPEHC 12;
2012 (1) SACR 305 (ECP).
22 Ibid paras 29-30.

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to serve and file the appeal bundles in accordance with the provisions of Uniform Rule
49(7)(a). Similarly, the appellant did not comply with Uniform Rule 49(6)(a) in relation to the
application for a hearing date. As a result, the deeming provision in Uniform Rule 49(6)(a)
was triggered, which provides that ‘if no such application is made by either party the appeal
and cross-appeal shall be deemed to have lapsed.’
[64] The explanation advanced by the appellant was that, although all necessary
arrangements had been made for the record to be transcribed by Gauteng Transcribers, the
secretary to the appellant’s attorney of record failed to print the transcribed record or br ing
it to the attorney’s attention upon receipt. Instead, the office file was returned to filing without
any further action being taken. This oversight only came to light in January 2024, whereafter
the appeal record was compiled into three bundles as requ ired, delivered to the
Bloemfontein correspondent during the week of 22 January 2024, and ultimately served on
the respondent’s attorneys of record on 28 February 2024.
[65] Pursuant to the above, the appellant applied for a hearing date and the matter was
set down for hearing on 24 March 2025. Acknowledging that there had not been strict
compliance with Uniform Rule 49, the appellant addressed written correspondence to the
respondent on 7 November 2024, requesting an indication as to whether the respondent
would be amenable to condoning the late filing of the appeal record. No response was
received. The appellant submitted that, given the significant time lapse since the error had
been rectified specifically, that the record had been filed more than a year prior to the hearing
date and due to the respondent’s failure to engage, there could be no prejudice occasioned
to the respondent. As is customary in applications of this nature, the appellant also
addressed the prospects of success on appeal. The allegations in the founding affidavit were

addressed the prospects of success on appeal. The allegations in the founding affidavit were
corroborated by contemporaneous documents annexed thereto.
[66] The respondent opposed the application for reinstatement. While not directly
disputing the factual allegations, the respondent contended that the explanation furnished
by the appellant did not adequately justify the extended period of non -compliance with the
rules of court and in any event, that the reasons advanced were not reasonable or
satisfactory. The respondent further argued that the prejudice suffered by being required to
defend an appeal that had lapsed could not be remedied by an award of costs alone.
[67] The respondent’s heads of argument w ere filed late and only on 20 March 2025 ,
being one court day before the hearing of the appeal and reinstatement application. The
respondent explained from the bar that the cause was the reinstatement application, which

17
required judicial determination before the heads of argument w ere actually due. That said,
the heads of argument were prepared and filed albeit late.
[68] Having considered the merits of the reinstatement application, as well as the
respondent’s opposition thereto, prayers 1 to 4 of the notice of motion were granted. The
respondent’s late filing of its heads of argument were likewise condoned.
Costs
[69] The general rule in civil litigation is that the successful party should be awarded
costs in its favour , unless there is just cause to depart therefrom. 23 There is no justifiable
circumstances present in this matter to deviate from the general position. As to the scale at
which counsel’s fees should be taxed, both parties contended for scale B and it seems to
be the appropriate scale in the circumstances.
Order
[70] Consequently, the following order is made:
1 The late service and filing of the appeal record is condoned.
2 The late application for the allocation of a date for hearing of the appeal and notice
of set down are condoned.
3 The appellant’s appeal is reinstated.
4 The late filing of the respondent’s heads of argument is condoned.
5 The appeal is dismissed with costs, which costs shall include counsel fees to be
taxed on Scale B.


_______________
GREYLING-COETZER AJ

We agree and it is ordered.


23 Motala v Master, North Gauteng High Court [2019] ZASCA 60; 2019 (6) SA 68 (SCA) at 102G–104C.

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________________
MBHELE AJP


________________
VAN ZYL J

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Appearances:

For the Appellant: MCC De Klerk

Instructed by: Loubser Van der Walt Inc
C/O: Jacobs Fourie Inc



For the Respondent: PS Mphuloane

Instructed by: The State Attorney
Bloemfontein