IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 1012/2020
Reportable Yes/No

In the matter between:

BAZOLILE SIHLALI Plaintiff

and

MINISTER OF POLICE Defendant


JUDGMENT

Cengani-Mbakaza AJ

[1] The plaintiff instituted an action against the Minister of Police, (the defendant)
claiming damages in the amount of R600 000 (Six Hundred Thousand Rand) for the
alleged unlawful arrest, search and detention. It is common cause that the claims are
based on vicarious liability, it being pleaded that the members of the South African
Police Services (SAPS) committed a delict when acting in the scope and course of
the defendant’s employment.

[2] According to the plaintiff’s particulars of claim, on or about 23 September 2019, near Tsolo, the members of the SAPS allegedly arrested and detained the plaintiff without a valid and or l awful cause. The plaintiff claims to have been searched in public, pulled to the ground and pressed against
the floor.

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[3] The plai ntiff was never brought to court after being unlawfully searched,
arrested and detained by SAPS and no charges were laid against him. He was
pushed into the police van, which was then driven at a high speed to the Magistrates’
Court, where he was offloaded . The plaintiff alleges that there was no reasonable
information to suggest that he was reasonably suspected of being involved in the
commission of an offence.

[4] The plaintiff avers that he was humiliated and degraded by the conduct of the
SAPS who faile d to justify their actions and properly investigate the case against
him. As a result, the plaintiff was deprived of his freedom and subjected to
humiliation, embarrassment and degradation. Consequently, the plaintiff’s reputation
was tarnished and he was perceived as a criminal.

[5] In his plea, the defendant denies that an arrest, search and detention took
place. Instead, he alleges that SAPS members observed the plaintiff exchanging an
item with a known drug dealer. When questioned, the plaintiff fled. H e then refused
to be searched without a warrant, claiming to be an attorney. The defendant disputes
that the plaintiff was pulled or pressed to the ground. Instead, the plaintiff apologised
to the SAPS for causing unnecessary noise and was given a lift to his workplace.

[6] The trial proceeded based on a pre -trial conference, where it was agreed that
there would be no separation between the merits and quantum. Considering that the
claims were denied from the onset, the trial proceeded on the basis that the plaintiff
bore the onus of proving unlawful arrest, search and detention. Consequently, the
plaintiff had a duty to begin presenting evidence.

[7] At the time of the institution of the proceedings, the plaintiff, a practising
attorney trading under the nam e and style of the Sihlali Attorneys, was a candidate
attorney employed by the Legal -Aid South Africa (LASA). On the day in question, he

attorney employed by the Legal -Aid South Africa (LASA). On the day in question, he
was on duty at Tsolo Magistrates’ Court. He had gone to buy lunch after the court
had adjourned.

[8] Due to a long que ue at Spar, he left without making a purchase and returned
to the court to collect the vehicle he was driving which belonged to LASA. As he

walked back to court, he met a young man he did not know. The young man asked
him R2. Since he did not have the exac t change, he gave the young man R10 and
asked him to get a change from a nearby shop.

[9] After getting the change, the young man returned, he gave him R2 and they
parted ways. The plaintiff took a few steps away when an unknown man grabbed
him. The man in formed him that he was under arrest for dealing in drugs. The
plaintiff was shocked because the man was in civilian clothes and wearing a long
jacket and a balaclava over his face. This made it difficult for him to believe that the
man was a genuine police officer, so he testified.

[10] Despite his doubts about the man’s identity as the police officer, the plaintiff
responded by informing him that he was not selling drugs. While still being detained,
as alleged, a second man wearing a cap joined them. When he removed his cap, he
revealed a hoodie covering his head, obscuring his face. The plaintiff testified that he
could only see the man’s nose as his eyes were hidden.

[11] Given the circumstances he thought he was being robbed because both men
were gripping him tightly by his clothing and his arms, with no space between them.
He asked a bystander in a nearby shop to call the police. However, the two men told
him to be quiet, claiming they were police officers. The m an wearing the balaclava
then pointed a firearm at him ordering him to shut up.

[12] A scuffle ensued between them continuing until they entered the shop. During
the struggle, his car keys and state petrol card fell out of his pocket. Throughout the
altercation, the plaintiff consistently maintai ned that he was not selling drugs,
repeatedly informing the two men that he was an attorney working at LASA. By the
time he identified himself as an attorney, he had already been forced to the ground
and searched.

[13] The plaintiff testified that both men continued searching him and later

and searched.

[13] The plaintiff testified that both men continued searching him and later
stopped. One of them took him to a corner inside the shop asking him to repeat what
he had said earlier. The plaintiff informed the man again that he was an attorney and

not selling dr ugs. He further explained the situation that a young man had
approached him asking for money which he had given him.

[14] The plaintiff later realised that the two men were indeed SAPS members. One
of the men brushed him off, as he was dirty from being forced to the ground. A crowd
of onlookers had gathered to witness the incident. The police officers then
apologised and offered to drop him off at the court premises. They all proceeded to
the police van which was parked on the street and drove the plaintif f back to the
court.

[15] After being dropped off, the plaintiff drove to his office and reported the
incident to his superiors. Subsequently, he went to the police station to lay criminal
charges against the two SAPS members. The plaintiff testified that the matter was
not investigated further by the Independent Complaint’s Directorate, resulting in the
prosecution declining to prosecute the case.

[16] The plaintiff further testified that, although he suffered no physical injuries,
during the ordeal he was left in a state of distress. The incident had a traumatic
impact on him particularly the experience of being pointed with a firearm. When
recalling the incident, so he alleged, he would experience fears and flashbacks.
When asked to explain why his pleadi ngs state that he was pushed into the police
van, the plaintiff testified that he was never pushed, instead an agreement was
reached between him and SAPS members that he would be transported to the court
premises.

[17] After the closure of the plaintiff’s case, the defendant presented the testimony
of one Mr Luvo Abednego Thile, a police sergeant (Sgt Thile). Sgt Thile testified that
at the time of the incident he was working as a police officer at Crime Prevention Unit
in Tsolo district. He explained that the area was experiencing a problem with drug
dealing. He described Tsolo district as a small town, where it was relatively easy to
identify notorious individuals.

identify notorious individuals.

[18] Sgt Thile confirmed that he was dressed in civilian clothes at the time as he
wanted to investigate crimes discreetly without being identified as a police officer. He

testified that he was with his colleague when they spotted the plaintiff and a
notorious young man exchanging a substance in a white plastic bag. At the time of
the exchange they were about 6 metres from the pair.

[19] Although he saw the plastic bag, he could not identify its contents. When they
approached the pair, they both fled the scene. He focused on the plaintiff following
him as he entered the shop. His intention was t o determine what he had in his
possession, he testified. Since he had an identification card with him, he identified
himself as a police officer. The plaintiff asked why he was not wearing a police
uniform. A scuffle ensued between them causing him to fall to the ground. People
inside the shop started screaming and making a commotion.

[20] During the struggle, his firearm fell and his colleague joined. Once the
struggle subsided, introductions were made. Thereafter, they had a peaceful
conversation and left the scene. They proceeded to the police van and later dropped
off the plaintiff in the court premises.

[21] The issues for determination are whether the conduct of the SAPS amounted
to unlawful arrest, search and detention. Another po int of contention is whether the
amount of damages claimed is justified in the circumstances of this case.

[22] Considering the principal points for determination which relate to the
defendant’s contention that no arrest, search and detention took place in this case,
the point of departure is to define what constitutes an arrest. Guided by the
Constitution of the Republic of South Africa, 1996 (the Constitution) and the case
law, arrest constitutes a serious restriction of an individual’s freedom of movemen t
and also affects their dignity 1 and privacy 2. The Constitution protects the
fundamental rights, including the right to freedom and security of the persons. It
enshrines the right to be from arbitrary deprivation of liberty without just cause.3


1 Section 10 of the Constitution.

1 Section 10 of the Constitution.
2 Section 14 of the Constitution.
3 Section 12 of the Constitution.

[23] The legislation that governs the manner and effect of arrest is s 39 of the
Criminal Procedure Act 51 of 1977 (CPA). This section provides:

‘39 Manner and effect of arrest
(1) An arrest shall be effected with or without a warrant and, unless the person
to be arrested submits to custody, by actually touching his body or, if the
circumstances so require, by forcibly confining his body.
(2) The person effecting an arrest shall, at the time of effecting the arrest or
immediately after effecting the arrest, info rm the arrested person of the cause
of the arrest or, in the case of an arrest effected by virtue of a warrant, upon
demand of the person arrested hand him a copy of the warrant.
(3) The effect of an arrest shall be that the person arrested shall be in law ful
custody and that he shall be detained in custody until he is lawfully discharged
or released from custody.’

[24] Therefore, an arrest occurs as soon as the arrestor assumes control over the
movements of a person being arrested.4 Although it is imperative that an arrestee be
informed that they are under arrest, as found in State President & Others v Tsenoli, 5
failure to do so does not necessarily mean that an arrest has not taken place. The
court in Willie v Minister of Police and Others,6 found that an arrest had indeed taken
place although the police officer erroneously believed that his actions constituted a
mere request and not arrest. This was because the police officer held the arrestee’s
arm and led her to a police van.

[25] These are civil proceedings and the plaintiff bears the onus to prove his case
on a balance of probabilities. Furthermore, the cou rt is called upon to make
credibility findings before a clear determination can be made on the police actions.
This is so because the versions of the plaintiff and Sgt Thali are mutually destructive.
According to our jurisprudence, there is no exhaustive list and dogmatic approach on

According to our jurisprudence, there is no exhaustive list and dogmatic approach on

4 R v Mazema 1948 (2) SA 152 (E) 154, Kerchhoff & Another v Minister of Law and Order & Others
1986 (4) SA 1150 (A) 1186C-D; Du Toit et al, Commentary on the Criminal Procedure Act 51 of 1977,
Service 67 2021.
5 1987 (1) PH H24 (AD).
6 Unreported FB appeal case no (A170/2019) [2020] ZAFSHC 122 8 June 2020) at [10]; see also Du
Toit et al at fn 1 supra.

how to make credibility findings. Each case is decided on its own facts.
Notwithstanding this, the Supreme Court of Appeal (SCA) serves as a guide on how
to approach this subject. In Stellenbosch Famers’ Winery Group Ltd and An other v
Martell et Cie and Others,7 the court held that:

‘The technique generally employed by courts in resolving factual disputes of
this nature may conveniently be summarised as follows. To come to a
conclusion on the disputed issues a court must make findings on (a) the
credibility of the various factual witnesses; (b) their reliability; and (c) the
probabilities. As to (a), the court’s finding on the credibility of a particular
witness will depend on its impression about the veracity of the witne ss. That in
turn will depend on a variety of subsidiary factors, not necessarily in order of
importance, such as (i) the witness’s candour and demeanour in the witness -
box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence,
(iv) external contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements or actions, (v) the
probability or improbability of particular aspects of his version, (vi) the calibre
and cogency of h is performance compared to that of other witnesses testifying
about the same incident or events. As to (b), a witness’s reliability will depend,
apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the
opportunities he had to experience or observe the event in question and (ii) the
quality, integrity and independence of his recall thereof. As to (c), this
necessitates an analysis and evaluation of the probability or improbability of
each party’s version on each of the disputed issues. In the light of its
assessment of (a), (b) and (c) the court will then, as a final step, determine
whether the party burdened with the onus of proof has succeeded in
discharging it. The hard case, which will doubtless be the rare one, occurs

discharging it. The hard case, which will doubtless be the rare one, occurs
when a court’s credibility findings compel it in one direction and its evaluation of
the general probabilities in another. The more convincing the former, the less
convincing will be the latter. But when all factors are equipoised probabilities
prevail.’


7 2003 (1) SA 11 para 5.

[26] This court further takes cognisance of the plaintiff’s single evidence which
must be approached with caution. I have considered the succinct oral and written
submissions raised by both parties. Furthermore, I have noted the contradiction
between the plaintiff’s plea ded version and his testimony regarding alleged pushing
into the police vehicle. However, I find the contradiction to be immaterial given that
the plaintiff honestly clarified that no such pushing occurred. Furthermore, despite
this immaterial contradictio n, the plaintiff’s version corroborated that of Sgt Thile,
particularly on material issues.

[27] I disagree with the defendant’s counsel who argued that it is highly
improbable for someone to give a stranger money for change and have it returned.
This argument is highly presumptuous and unsupported by the facts. Sgt Thile could
not hear the conversation taking place between the plaintiff and a young man.
Therefore, the plaintiff’s version remains unchallenged in this regard.

[28] Upon proper examination of the probabilities, it is clear that something
untoward occurred between the plaintiff and SAPS members. The fact that they
ended up inside the shop does not seem coincidental. In my opinion, the plaintiff had
no reason to flee, as he had no drugs in his possession. This is a version that was
corroborated by Sgt Thile’s admission that nothing was found in the plaintiff’s
possession. Although Sgt Thile attempted to justify this by suggesting that the drugs
might have fallen, the circumstances do not support this proposition.

[29] The uncontroverted evidence is that the only items that fell from the plaintiff’s
possession were his car keys and the state’s petrol card. In fact, it does not make
sense that the plaintiff would sell drugs to a young man and late r flee with drugs that
he had already sold. Sgt Thile’s version that the plaintiff was selling drugs is
implausible, even based on his own account. Although not stated in the pleadings,

implausible, even based on his own account. Although not stated in the pleadings,
the allegations regarding the pointing of a firearm are plausible, giv en Sgt Thile’s
confirmation that he had a firearm in his person which fell during the scuffle.

[30] The discrepancy between the pleading and Sgt Thile’s testimony where he
claimed that the exchanged item was a plastic bag with a white substance inside,
reveals that Sgt Thile made assumption about drugs being exchanged without actual

knowledge. Therefore, there is no cogent reason to disbelieve the plaintiff’s version
that he was being generous to a young man who randomly asked R2 from him.
Despite the plai ntiff’s initial confusion about being robbed, the evidence
overwhelmingly suggests that he was in fact under arrest.

[31] I agree with the plaintiff’s counsel that Sgt Thile’s action specifically the
touching and placing the plaintiff in his custody satis fy the elements of arrest as
outlined in s 39(1) of the CPA. Other than arrest, there is no justification for Sgt
Thile’s action in confining the plaintiff and leaning on top of him. Furthermore, the
plaintiff’s clothes being dusty all over corroborates hi s version of being placed on the
floor during arrest. I therefore conclude that the arrest was based on an
unreasonable and baseless assumptions and therefore irrational. Considering the
fact that the arrest and detention was unlawful, the plaintiff’s resi stance to being
arrested and confined was justified. Consequently, the plaintiff’s claims must
succeed.

[32] I now proceed to deal the alleged unlawful search. Sgt Thile’s assertion that
he did not search the plaintiff is improbable. His concession that no thing was found
in the plaintiff’s possession strongly intensifies the plaintiff’s version that a search
did take place. The question that remains is whether the search was lawful.

[33] The CPA lists certain provisions that are instrumental in assisting police
investigations through search and seizures of articles. Section 20(a) of the CPA
enables the state to seize articles that may serve as evidence for prosecution, but
only if those articles are reasonably suspected to be connected to the commission of
the offence. Section 20(b) of the CPA refers to articles that may afford evidence in
the commission of the offence, whether in the Republic or elsewhere. Furthermore, s
20(c) of the CPA specifically targets articles intended for use or reasonably believed

20(c) of the CPA specifically targets articles intended for use or reasonably believed
to be intended for use in committing an offence.

[34] Section 21 of the CPA deals with circumstances where articles may be seized
without a warrant, while s 22 of the CPA empowers peace officers to seize articles
without a warrant. The provisions of s 22 of the CPA are couched as follows:

‘22 Circumstances in which article may be seized without a search
warrant.
A police official may without a warrant search any person or container or
premises for the purpose of seizing any article referred to in section 20‒
(a) if the person concerned consents to the search for and the seizure
of the article in question, or if the person who may consent to the
search of the container or premises consents to such search and
the seizure of the article in question; or
(b) if he on reasonable grounds believes‒
(i) that a search warrant will be issued to him under paragraph
(a) of section 21 (1) if he applies for such warrant; and
(ii) that the delay in obtaining such warrant would defeat the
object of the search.’

[35] The plaintiff relied o n s 22 (1) of the CPA arguing that he never consented to
a search by the SAPS. To resolve this dispute, a holistic evaluation of the evidence
presented by both parties is necessary in this regard. It has already been established
that a search did occur.

[36] It is well acknowledged that police officers have a critical obligation to
maintain law and order, with a strong emphasis on crime prevention. However, it is
imperative that this duty be discharged within the confines of the law. In Magobodi v
Minister of Safety and Security & Another, 8 a case that I was referred to by the
plaintiff’s counsel Miller J held:

‘[15] Random searches by police officials without objective grounds for the
search are, in my view, contrary to the norms of an open and democratic
society. If it is felt that there is a particular need for such searches to take
place then legislative machinery is provided for the authorisation therefor by
section 13 of Act 68 of 1995. If a police official performing routine duties takes
it upon himself or herself to conduct such random searches then, at least, the
aforementioned requisites relating to the obtaining of consent to search

8 2009 (1) SACR 355 (Tk).

should be complied with by the police official in order to obtain a valid and
voluntary consent.’

[37] Considering the contradictions in the Sgt Thile’s evidence, coupled with the
altercation between the parties, this court concludes that the plaintiff did not consent
to the search and there was no probable cause for search. In the circumstances of
this case, it is unnecessary to extensively consider the provisions of s 22 (2) of the
CPA, as it was not part of the defendant’s pleaded case, no evidence was led and no
submissions were made in this regard.

[38] The last issue is the determination of the quantum of damages. Our Courts
have consistently frowned upon the deprivation of the person’s liberty, regarding it as
a serious infringement of individual’s rights. In a free society like ours, liberty is a
fundamental right and it should be zealously guarded and protected at all times.9

[39] I endorse the sentiments raised by Jones J in Olgar v Minister of Safety and
Security (Olgar),10 which can be paraphrased as follows: when assessing damages
for unlawful arrest and detention, a just award should refl ect the importance of the
individual’s constitutional right to freedom, taking into account the specific facts of
the case, the victim’s personal circumstances and the nature, extent and degree of
the affront to the individual’s dignity and personal worth . These considerations
should be balanced with restraint and a proper regard to the value for money
avoiding extravagant awards that might be seen as unjustly depleting the
defendant’s resources.

[40] In addition to the circumstances endorsed in Olgar, other factors also play a
significant role. The Supreme Court of Appeal in Rahim & 14 Others v Minister of
Home Affairs 11 has identified further consideration, including the circumstances
under which the deprivation of liberty occurred, the conduct of the defendants and
the nature and duration of the deprivation.


9 Thandani v Minister of Law and Order 1991 (1) SA 702 (E).

9 Thandani v Minister of Law and Order 1991 (1) SA 702 (E).
10 Unreported Case No: 608/07.
11 2015 (4) SA 433 (SCA) para 27.

[41] I acknowledge that assessing the quantum of damages lacks mathematical
precision. Our courts have endorsed the principle that the previous c ases can serve
as a guide, although they are fraught with difficulties.12

[42] With these principles in mind, I consider it unnecessary to reiterate the
plaintiff’s personal circumstances which are adequately outlined in the summary of
his testimony. The d efendant presented no evidence to rebut the plaintiff’s personal
circumstances, including the impact of the SAPS’s unlawful conduct which occurred
in full view of the public. Consequently, there is no evidence to refute the impairment
of his dignity or the emotional impact caused by the SAPS’s unlawful actions.

[43] Although it is acknowledged that the plaintiff was a candidate attorney who
was treated like a criminal and suffered significant humiliation, the all -inclusive
amount of R400 000 (Four Hundred T housand Rand) for compensation as
recommended by the plaintiff’s counsel in his heads of argument is not justified. It is
notable that SAPS partly acknowledged responsibility for their conduct by
transporting the plaintiff to the court premises after their unlawful actions.
Furthermore, the duration of the arrest, search and detention was minimal, lasting
less than an hour. Therefore, in exercising my discretion, I conclude that a fair and
reasonable amount for compensation in this case is the all -inclusive amount of
R120 000 (One Hundred and Twenty Thousand Rand).

Order

[44] Resultantly, I make the following order:

1. The plaintiff’s claims succeed.
2. The defendant shall pay an all -inclusive amount of R120 000 (One Hundred
and Twenty Thousand Rand) for damages suffered by the plaintiff as a result of
unlawful arrest, search and detention.
3. The defendant shall pay interest at the rate of 10,25% per annum calculated
from the date of the summons to the date of payment.

12 Rahim and 14 Others, fn 7 above.

4. The defendant shall pay costs on scale A as contemplated under Rule 67A
read with Rule 69 of the Uniform Rules of Court.



N CENGANI-MBAKAZA
JUDGE OF THE HIGH COURT (ACTING)


APPEARANCES:

Counsel for the Plaintiff : Adv: M. Jozana
Instructed by : NONTSWABU INC.
MTHATHA

Counsel for the Defendant : Adv: L. Msiwa
Instructed by : STATE ATTORNEY
MTHATHA

Heard on : 08 May 2025
Judgment delivered on : 21 August 2025