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2025
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[2025] ZANCHC 86
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Banda v Minister of Police and Another (58/2023) [2025] ZANCHC 86 (5 September 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
CASE
NUMBER: 58/2023
Reportable:
YES
/
NO
Circulate
to Judges: YES
/
NO
Circulate
to Regional Magistrates: YES
/ NO
Circulate
to Magistrates: YES
/
NO
In
the matter between:
SULA
PETRONELLA
BANDA
PLAINTIFF
and
THE
MINISTER OF POLICE
FIRST DEFENDANT
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTION
SECOND DEFENDANT
Neutral
citation:
Banda v Minister
of Police and Another
(58/2023) 05
September 2025
Coram:
Stanton J
Heard:
25 August 2025
Delivered:
05 September
2025
Summary:
Action for damages
– Unlawful arrest and unlawful detention –Onus on the
Minister of Police – Application for
judgment at the close of
the first defendants’ case
–
Plaintiff did not close her case
–
Application for judgment dismissed.
ORDER
1.
The plaintiff’s application for
judgment at the close of the first defendant’s case is
dismissed.
2.
The plaintiff shall pay the defendants’
costs in respect of the application for judgment on a party and party
scale B
as set out in
Rule 69(7) read with Rule 67A(3) of the Uniform Rules of Court.
JUDGMENT
Stanton
J
Introduction:
[1]
The plaintiff instituted an action against the first defendant,
the Minister of Police, and
the second defendant, the National
Director of Public Prosecutions, claiming damages:
1.1
In respect of claim 1, resulting from an
unlawful arrest on 15 January 2021; and her wrongful and/or unlawful
detention for three
days from 15 January 2021 to 18 January 2021;
1.2
In respect of claim 2, resulting from
her unlawful detention from 18 January 2021 until 02 June 2021; and
1.3
In respect of claim 3, resulting from
her malicious prosecution.
[2]
The parties agreed that the merits and the quantum should be
separated and that the trial should
only proceed in respect of the
merits of the plaintiff’s first claim against the first
defendant.
The
pleadings:
[3]
According to the
plaintiff’s particulars of claim, she was unlawfully arrested
without a warrant of arrest, and unlawfully
detained due to the
following:
3.1
At no stage was any offence committed in the presence of the
arresting officer, alternatively, and only
in the event that an
offence was committed in the presence of the arresting officer, the
arresting officer failed to exercise his
discretion on whether or not
to arrest, and thereafter detain the plaintiff judicially and/or
rationally and not in an arbitrary
manner;
3.2
Alternatively, the plaintiff did not commit a Schedule 1 offence as
envisaged in the Criminal Procedure
Act 57 of 1997 (“the Act”);
3.3
Alternatively,
the arresting and/or detaining officer did not harbor a reasonable
suspicion that the plaintiff had committed
a Schedule 1 offence as
envisaged in the Act;
3.4
Alternatively,
the arresting or detaining officer failed to appreciate that he had a
discretion on whether or not to arrest and/or
detain the plaintiff;
3.5
Alternatively,
the arresting or detaining officer failed to exercise his discretion
on whether or not to arrest, and thereafter
detain the plaintiff,
judicially and/or rationally and not in an arbitrary manner; or
3.6
Alternatively,
the plaintiff was not released from detention at the appropriate
instance, as the detaining officer failed to exercise
his discretion
on whether or not to detain, alternatively, continued to detain the
plaintiff inappropriately under the circumstances.
[4]
The defendants
defended the matter. In terms of the first defendant’s plea,
the arrest and detention from 15 to 18 January
2021 were lawful as
the plaintiff was arrested after having been pointed out by the
complainant as the individual who had shoplifted
items at the PEP
store. The defendant furthermore pleaded that the plaintiff’s
arrest and detention were lawful in that they
were affected in
accordance with s 40(1)(b) of the Act that allows for the arrest,
without a warrant, in circumstances where there
is a reasonable
suspicion that a Schedule 1 offense had been committed. The plaintiff
was charged with theft that is classified
as a Schedule 1 offence.
[5]
It is not in dispute that:
(a)
The plaintiff was arrested on
15 January 2021 on a charge of theft;
(b)
The plaintiff was
arrested without a warrant of arrest;
(c)
The plaintiff was
detained for three days from 15 January 2021 until she was taken to
court on 18 January 2021 for her bail application;
(d)
Sergeant Paint was the arresting officer;
(e)
Sergeant paint
acted within the course and scope of his employment with the first
defendant when he affected the arrest; and
(f)
The charge
against the plaintiff was withdrawn on 02 June 2021.
The
evidence:
[6]
The defendant called two witnesses to discharge his onus, Sergeant
Paint, the arresting officer,
and Warrant Officer Gouvea, the
investigating officer.
Judgment
after the close of the first defendant's case:
[7]
After closing the first defendant’s case, the plaintiff applied
for judgment without leading
evidence. The issue for consideration is
whether the plaintiff is entitled to judgment in these circumstances.
[8]
In a previous unreported judgment,
[1]
I held the opinion that such an application could be granted in
certain circumstances. However, on being confronted with the
plaintiff’s
application for default, a sense of unease lead to
a historical analysis into the courts’ approach to applications
of such
a nature.
[9]
In
Arter v Burt
,
[2]
the
court observed, per Innes CJ that “
The onus,
it should be remembered, was on the defendant. If he discharged it he
was entitled to judgment; if he failed to discharge
it then the
plaintiff was bound to succeed. In either event there was no room for
absolution…The position created by the onus seems
for the moment to have escaped attention.”
[10]
In
Hirschfeld v Espoch
,
[3]
it
was held that where the onus of proof on the pleadings
lies upon the defendant and the defendant fails to
discharge
the onus, the court should not grant absolution from the
instance.
[11]
In the unreported judgment of
De
Lange and Another v Minister of Police, (“De Lange”)
[4]
the court followed and applied the principles set out in
Schuster
v Geuther (“Schuster”)
[5]
when it held:
‘
I
have perused Herbstein and Van Winsen and I find no authority to this
effect, not ·on the page cited, nor elsewhere. Erasmus
[6]
is authority for the proposition that judgment cannot be granted in
favour of plaintiff unless, at the close of defendant's case,
plaintiff has either closed its case, or has adduced evidence.
In
Schuster v Geuther the Court dealt with this exact question. The
Court compared absolution from the instance at the end of the
plaintiff s case, as opposed to judgment after defendant had adduced
evidence. It was pointed out that an order for absolution
does not
finally dispose of the issues between the parties. A plaintiff is
entitled to re institute proceedings should he
so wish. The
Court stated:
“
Mr
Goldblatt wishes to move for judgment without closing his case. This
I think he cannot do; it is entirely within the discretion
of the
plaintiff as to whether, and if so, what evidence he wishes to
tender. He may, therefore, close his case at this stage and
move for
judgment, but it seems to me that he cannot ask the Court
to judge on a substantial issue between the parties
before the Court
is in possession of all the evidence which the parties propose to
tender. I rule therefore that it is not competent
for the plaintiff
to move for judgment without closing his case.’
[12]
Schuster
was followed in
Scheepers
v Video & Telecom Services
,
[7]
where the Court made the following remark:
‘
In a case
where the onus rests upon the plaintiff a defendant is entitled to
ask for absolution from the instance at the
close of plaintiff's case
on the ground that he has failed to make out a prima facie case.
Such a decree, if granted,
will not be in the nature
of a final judgment between the parties, and the plaintiff
will be able to institute fresh proceedings
on the same cause of
action. Where, however, the onus is on the defendant, there
is no room for a decree of absolution
from the instance, and any
judgment given must be a final judgment as between the parties. The
distinction between the two is obvious
and in Schuster v Geuter 1933
SWA 114 Van Heerden J held that it was not competent for a plaintiff
in a matter where
the onus was on the defendant to move for judgment
at the end of the defendant's case without closing his own case.
[13]
In
De Lange
the court concluded that “it was not
competent to grant judgment unless the plaintiffs closed their case,
or adduced
evidence”.
[14]
In the most recent judgment of
Tsotetsi
and others v Minister of Police,
[8]
the
court, after perusal of various judgments, held that “case law
establishes that if the onus is on the defendant,
the court cannot,
after he has led his evidence, give judgment for the plaintiff unless
and until the plaintiff closes his case.”
[15]
In the absence of closing her case, the plaintiff’s application
for judgment therefore stands to be
dismissed.
The
following order is made:
1.
The plaintiff’s application for
judgment at the close of the first defendant’s case is
dismissed.
2.
The plaintiff shall pay the first
defendant’s costs in respect of the application for judgment on
a party and party scale
B
as
set out in Rule 69(7) read with Rule 67A(3) of the Uniform Rules of
Court.
STANTON
J
On
behalf of the plaintiff:
Mr
J Pearton
On
instructions of:
GMI
Attorneys
On
behalf of the defendants:
Mr
M Ramabulana
On
instructions of:
The
State Attorney
[1]
Radiokana
v Minister of Police (1609/2017) [2020] ZA NWHC 52 (17 September
2020).
[2]
1922
AD 303
at 306. See also Nelson v Marich
[1952] 3 All SA 161
(A).
[3]
1937 TPD 19.
Also see
Ramnath
v Bunsee
[1961] 2 All SA (N)
.
[4]
(31026/2017)
[2017] ZAGPPHC 1062 (01 September 2017). At paras 25 to 27.
[5]
1933
SWA 114.
[6]
S
upreme
Court Practice at page D1 – 534.
[7]
1981
(2) SA 490
(ECD) at page 491.
[8]
[2023]
JOL 57935
(GJ),