SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Case no: 218/2013
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Regional Magistrates: YES / NO
Circulate to Magistrates: YES / NO
In the matter between:
ANDRIES JACOBUS BESTER Plaintiff
and
MARIUS DEON VAN DER WESTHUIZEN First Defendant
THE MINISTER OF SAFETY AND SECURITY Second Defendant
LUYANDA NGWEVELA Third Defendant
Coram: Mamosebo J
Heard: 17 – 19/06/2025.
Delivered: 05/09/2025
Summary: Action – damages – delictual claim for wrongful arrest and
detention – Merits and Quantum separated – First and Second Defendants
admit liability – Claim under actio iniuriarum – Four requirements must be
met: (a) plaintiff must establish that his liberty has been interfered with; (b) this
interference occurred intentionally on the defendant’s part ; (c) the deprivation
2
of liberty must be wrongful ; and (d) the conduct of the defendant must have
caused both legally and factually, harm for which compensation is sought.
ORDER
1. The arrest and detention of the plaintiff on 23 November 2011 was
wrongful.
2. The first to third defendants are jointly and severally liable to the
plaintiff, the one paying the other to be absolved, for such damages as
the plaintiff may prove he suffered in consequence of the wrongful
arrest and detention.
3. The costs of the action on merits are reserved for later determination.
JUDGMENT
Mamosebo J
[1] The plaintiff instituted action for damages for unlawful arrest and
detention arising out o f his arrest on a charge of fraud and his
subsequent detention for one night in a police cell.
[2] The plaintiff is Andries Jacobus Bester, a pensioner who worked for a
single employer as an electrician for 38 years. He has been resident at
Vierfontein in the Free State Province for the past thirty years.
3
[3] The first defendant is Marius Deon van der Westhuizen , in his
representative capacity as the investigating officer in the fraud case the
plaintiff was arrested and detained on suspicion of , under case number
40/09/2011. The second defendant is the Minister of Safety and
Security in his official capacity as the first defendant’s employer . The
third defendant is Luyanda Ngwevela in his representative capacity as
a public prosecutor . Mr Ngwevela is stationed at Springbok in the
Northern Cape at the Port Nolloth circuit court and was responsible for
the prosecution of the said fraud case.
[4] At the commencement of the trial, Mr MC Davis from the Office of the
State Attorney submitted that the first and second defendants are
conceding the merits of the plaintiff’ s claim. Their participation in the
trial was therefore rendered redundant and they were excused.
Accordingly, reference to the first and second defendants in this
judgment shall be out of necessity for purposes of completing the
picture with what transpired in this case.
[5] The third defendant abandoned his special plea that the plaintiff did not
comply with s 3 of the Institution of Legal Proceedings against Certain
Organs of State Act 40 of 2002 but proceeded with the trial to defend
the plaintiff’s claim against him.
[6] The parties agreed from the onset that the trial would dispose of the
issue of liability only and that the issue of quantum would be decided
later either by settlement between the parties or by way of the court
hearing evidence and making an order. Accordingly, t his judgment
relates to the issue of delictual liability on the third defendant’s part.
[7] In order for the plaintiff to succeed in this claim, he must satisfy the
following requirements as enunciated by the Constitutional Court in De
Klerk v Minister of Police1:
1 2020 (1) SACR 1 (CC) para 14.
4
‘A claim under the actio iniuriarum for unlawful arrest and detention has
specific requirements:
(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 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.’
Background
[8] The salient facts surrounding the plaintiff’s arrest and dete ntion are as
follows. A complaint was lodged with the Police in Port Nolloth that, a
person who identified himself as Burger (the suspect) , using the cell
number 0[...]…, contacted the complainant (Mr Nicolas Petrus Kotze of
Port Nolloth) purporting to sell him animal feed for R2 500. The suspect
provided the complainant with a cell number of 0[...]…, said to be that
of a certain Mr Nagel who could be contacted to verify the credentials
of the suspect. The complainant contacted the said Mr Nagel who
confirmed that the suspect was a businessman but would not provide
full details thereof.
5
[9] The complainant eventually paid the R2 500 purported selling price to a
bank account provided by the suspect but never received the animal
feed or a refund . Instead, the plaintiff could not reach the suspect
again. Realising that he had been defrauded; the complainant lodged a
complaint of fraud with the police.
[10] During the investigation of the complaint, t he 0[...]… cell number was
found to have been RICA’ d2 under the name of the plaintiff on 01 April
2011 while the 0[...]… cell number which the suspect had provided to
the complainant for the verification of his credentials was found to be
linked to a certain Ms Letitia Paul. It was also found that the bank
account into which the money for the purported sale of feed was
received belonged to a Ms Letitia Paul. Based on the above and
related factors that will be detailed below, the third defendant
successfully sought a warrant for the plaintiff ’s arrest on suspicion that
the plaintiff had committed the said fraud.
[11] The plaintiff was arrested on 23 November 2011 after h e was
telephonically contacted in the afternoon by Det. Boshoff from Orkney
Police Station summoning him to a location close to the plaintiff’s
premises. She then asked him to accompany her to the Orkney Police
Station and the plaintiff obliged. At that stage, h e was not aware of the
investigation and the fact that a warrant for his arrest had been
authorized. Det . Boshoff mentioned the name of Letitia Paul to the
plaintiff as she was relating details of the investigation. He informed her
that Letitia Paul stayed with a certain Mr RA Boshoff.
[12] The plaintiff was afforded an opportunity to speak to his instructing
attorney, Mr Senekal, before he was detained in a cold , dark cell with
four other detainees. He was not served any food and he struggled to
2 The recording of the personal particulars of a person by a telecommunication service
provider before entering into a telecommunication service contract with the said person in
provider before entering into a telecommunication service contract with the said person in
terms of the Regulation of Interception of Communications and Provision of Communication
Related Information Act 70 of 2002.
6
fall asleep. He was detained for one night , appeared in court the
following morning, and was released at around 13h00.
[13] The plaintiff and his instructing attorney telephonically spoke to a
correspondent attorney in Port Nolloth who informed them that the
matter against Mr Bester had been withdrawn. Mr Bester received
information from the corresponding attorney that a certain Mr RA
Boshoff was charged, prosecuted and sentenced as he had used the
stated 0[...]… cell phone number to communicate and defraud a victim.
Plaintiff’s evidence
[14] The plaintiff confirmed that he willingly RICA’d the sim card with the
0[...]… cell number in his name, ID number and address on behalf of
Mr RA Boshoff. The records reflect that the plaintiff only used the
phone for about six hours but he cannot explain how that happened.
The plaintiff and Mr Boshoff had started a scrap metal business
together having grown up, played and even attended school together.
They were neighbours.
[15] Further, the plaintiff accepted that when a person RICA’s a sim card , it
is linked to his identity number and address. On the other hand,
according to the contents of the docket , the complainant was unknown
to the plaintiff. The plaintiff neither spoke nor sold any animal feed to
the complainant. Further, t he plaintiff was never contacted by the
Vierfontein Police regarding this fraud case until his arrest. The first
defendant also never contacted the plaintiff. The arrest and detention
have caused the plaintiff trauma and sleepless nights. He paid the
corresponding attorney a fee of R2 500 for his appearance in the
criminal case.
[16] More pertinently to the plaintiff’s case are his submissions that:
7
(a) The complainant never identified the plaintiff as the person who
had made the telephone call to him;
(b) The first defendant failed to investigate the report and never
called the 0[...]… cell phone number to ascertain in whose
possession the phone was when the complainant was called;
(c) The first defendant neither contacted the plaintiff for an
explanation regarding what was reported to him, nor did he
establish the plaintiff’s residential or employment address;
(d) In addition, no warning statement was obtained from the plaintiff,
instead, the first defendant falsely represented to the third
defendant and the magistrate that the plaintiff was identified as a
suspect by the complainant and that the plaintiff was a fugitive
from justice with no fixed address and had to be traced
throughout the entire country; and
(e) The first defendant also furnished an inaccurate account (to the
third defendant) that he had made enquiries with the Vierfontein
Police about the whereabouts of the plaintiff and was told that
they were unknown.
[17] The plaintiff’s main contention is, that the third defendant still relied on
the above information to secure a warrant of the plaintiff’s arrest , thus
flying in the face of the identified discrepancies or issues which he
could have easily recognised merely by giving due consideration to the
docket at his disposal. The suspicion that the third defendant had in
securing the warrant of arrest of the plaintiff was therefore
unreasonable, so argued the plaintiff.
[18] Mr Eillert for the plaintiff did not call any further witness es, the plaintiff
was the only factual witness in his cause.
8
The third defendant’s evidence
[19] The third defendant was on duty o n 08 November 2011 when he was
approached by the first defendant to sign a section 205 application 3 for
the subpoena of people in the said fraud case. This is the information
sketched to the third defendant by the first defendant to substantiate
the issuing of the s 205 request:
(a) The suspect had contacted the complainant telephonically and
offered him cattle feed for an amount of R2 500;
(b) The complainant was to pay the money into a furnished bank
account so that the suspect would have fuel money to deliver
the said feed;
(c) Despite the complainant having done so he neither received the
feed nor his money back. The suspect also did not answer the
complainant's calls after the money was deposited into the said
account.
[20] The third defendant signed the s 205 request which was authorised by
the Magistrate. The s 205 request was utilised to establish that the
0[...]... cell number belonged to the plaintiff. Positive feedback from the
network service provider established that the owner of the said number
was Mr Andries Bester, the plaintiff, giving his ID number, RICA date
and residential address.
3 Section 205 of the Criminal Procedure Act 51 of 1977 stipulates: -
[M]agistrate may take evidence as to alleged offence
(1) A… magistrate may, … upon the request of … a public prosecutor authorized thereto in
writing by the Director of Public Prosecutions , require the attendance before him or her or
any other … magistrate, for examination by the Public Prosecutor authorized thereto in
writing by the Director of Public Prosecution s, of any person who is likely to give material
or relevant information as to any alleged offence, whether or not it is known by whom the
offence was committed: . . .
(2) The provisions of sections 162 to 165 inclusive, 179 to 181 inclusive, 187 to 189 inclusive,
191 and 204 shall mutatis mutandis apply with reference to the proceedings under
subsection (1).
subsection (1).
(3) The examination of any person under subsection (1) may be conducted in private at any
place designated by the … magistrate.
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[21] The third defendant could not recall whether he had the docket with
him when he signed the s 205 request. According to him, the
complainant identified the suspect as Burger , not Bester. The third
defendant conceded that the statement written by the first defendant in
the docket – that the plaintiff had contacted the complainant , was
incorrect.
[22] The third defendant submitted that he applied for the warrant of arrest
in order to have Burger, who had communicated with the complainant
from the RICA’d cell phone number, arrested. Further that he was told
by the first defenda nt that the efforts to find the plaintiff were
unsuccessful. Mr Ngwevela maintained that he based his decision for
the arrest of the plaintiff on the RICA identification of the ownership of
the cell phone number. He explained that the first defendant had told
him that he had contacted the Vierfontein Police and that they could
not locate the suspect . Further that the first defendant suggested to
him that , in light of the fact that the su spect could not be located, it
would be best to circulate the warrant of arrest so that the suspect can
be arrested anywhere in the country when located. The third defendant
claims that he was under the impression that Burger and Bester could
be the same person. He relied on what he was told by the first
defendant as he believed and trusted him having known him since
2003.
[23] It is common cause that the plaintiff was arrested following the warrant
of arrest secured by the third defendant . Before the arrest, there was
another s 205 application brought in respect of the bank records
pertaining to the bank account furnished by the suspect. The s 205
application specifically request ed the bank to provide the name and
address of the account holder as well as the bank statement for 09
September 2011. The third defendant had signed the s 205 application
for the bank records. The bank confirmed that the account holder was
for the bank records. The bank confirmed that the account holder was
Ms Letitia Paul. This was the bank account into which the
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complainant’s money was deposited. The bank also furnished the
account holder’s residential address.
[24] On whether or not Mr Ngwevela had the docket when he made the
decision for the plaintiff to be arrested , the following was put to him
after his response that he could not recall whether the docket was
placed before him . That the first and second defendant s pleaded that
they had provided him with the docket. In Part C of the docket, namely,
the investigation diary which captures the investigative communication
between the investigating officer, his seniors and the prosecutor, there
is an entry that the docket was provided to the prosecutor. He
conceded, only after being confronted in cross -examination, that he
was placed in possession of the docket.
[25] The third defendant explained that he did not question the investigating
officer on whether investigations had located Ms Letitia Paul. He was
referred to the investigation diary where Sgt . Theteletsa of Ottosdal
informed the investigating officer that Ms Letitia Paul had relocated to a
farm in Leeudoringstad but her cell phone number was 0[...]… This cell
phone number is the same as the one Burger furnished to the
complainant as belonging to one Mr Nagel. According to the third
defendant, he assumed, without any verification, that Ottosdal, the
address where Ms Letitia Paul’s bank account was held, was in the
same vicinity as Vierfontein. When told that Vierfontein is in the Free
State and Ottosdal is in the North West Province and were one and
half hours’ drive apart , he maintained that, even so, his suspicion was
reasonable considering all factors at play.
Ms Snyders, for the third defendant, did not call any further witness es
and closed the case for the third defendant.
Analysis
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[26] The arrest and detention of the plaintiff is not in dispute. What is
disputed is their lawfulness or otherwise. This aspect is analysed
against the backdrop of s 43(1) of the C riminal Procedure Act 51 of
1977 which stipulates:
‘43 Warrant of arrest may be issued by magistrate or justice
(1) Any magistrate or justice may issue a warrant for the arrest of
any person upon the written application of an attorney-general, a
public prosecutor or a commissioned officer of police-
(a) which sets out the offence alleged to have been
committed;
(b) which alleges that such offence was committed within the
area of jurisdiction of such magistrate or, in the case of a
justice, within the area of jurisdiction of the magistrate
within whose district or area application is made to the
justice for such warrant, or where such offence was not
committed within such area of jurisdiction, which alleges
that the person in respect of whom the application is
made, is known or is on reasonable grounds suspected to
be within such area of jurisdiction; and
(c) which states that from information taken upon oath there
is a reasonable suspicion that the person in respect
of whom the warrant is applied for has committed the
alleged offence.’ (own emphasis added).
[27] It is common cause that the third defendant is an experienced
prosecutor. On the application for the arrest of the plaintiff, he ba sed
his decision on the following, while maintaining that he had complied
with the requirements of s 43(1)(c):
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(a) The network service provider, MTN, furnished information that
the 0[...]… cell phone number was registered to the plaintiff and
that the complainant was called from that same number;
(b) That the person who communicated with the plaintiff was a
male;
(c) That the accountholder’s address was in the same vicinity as the
address of the plaintiff;
(d) That the investigating officer verbally informed him that the
plaintiff was untraceable, i.e, could not be located at the given
address.
[28] Had the prosecutor paid more attention to the contents of the docket,
as he ought to have done, he would have focused on the following:
(a) That the investigating officer depose d to an affidavit stating that
the plaintiff’s residential address had been established. There
was no entry in the investigation diary that the Vierfontein Police
were contacted to ascertain the plaintiff’s whereabouts and that
the plaintiff could not be traced at his given address.
(b) He should have established whether there was a link between
the bank records held by Ms Letitia Paul, the telephone call by
one Burger using the 0[...]… number, the 0[...]… number and
the complainant. Mr Ngwevela also conceded that there was no
ascertainable link between the plaintiff and Ms Letitia Paul.
(c) There was no factual basis for the prosecutor to assume,
without more, that ‘Burger’ may be an alias for ‘Bester’, and that
‘Ottosdal’ and ‘Vierfontein’ were in the same vicinity. Desktop
research would have supplied an instant answer.
13
(d) It was a far stretch of the imagination to conclude that the
plaintiff was the suspect who had defrauded the complainant
merely because the cell phone number 0[...]… was RICA’d
under the plaintiff’s details. It is wrong to arrest first and
investigate thereafter as was done in this case.
(d) That the name Burger was an alias for Boshoff, who was
ultimately successfully prosecuted for the crime.
(f) Mr Ngwevela should very well have realised that the first
defendant’s affidavit supporting the application for a warrant for
the arrest of the plaintiff did not accord with the allegations
contained in the docket.
[29] Musi AJA, writing for a unanimous court, in Biyela v Minister of Police 4
said:
‘The standard of a reasonable suspicion is very low. The reasonable
suspicion must be more than a hunch; it should not be an
unparticularised suspicion. It must be based on specific and
articulable facts of information. Whether the suspicion was
reasonable, under the prevailing circumstances, is determined
objectively.’ (own emphasis added).
[30] The third defendant was a single witness but based on the concessions
of the first and second defendants, the crux of this case pivots around
the burden of proof having shifted to him. It must be determined
whether he has discharged the onus reposed upon him to show that
the deprivation of liberty was not wrongful.
[31] In my view, the third defendant’ s conduct failed to display the required
standard of a diligent public prosecutor. It cannot be objectively argued
4 [2022] ZASCA 36; 2023 (1) SACR 235 (SCA); [2022] JOL 52757 (SCA) para 34.
14
that he had a reasonable suspicion that the plaintiff was the person
who had defrauded the complainant. On a conspectus of the evidence
before me, there is no doubt in my mind that no reasonable suspicion
existed. The third defendant’s decision to obtain the warrant was not
premised on reasonable grounds that , when the plaintiff was arrested,
he had committed fraud. I therefore find that the plaintiff has made out
a case of unlawful and wrongful arrest and detention , and accept his
version as probable and credible. I am satisfied that the plaintiff’s arrest
was not justified and therefore unlawful. It also follows that his
detention was also not justified , resultantly causing him some form of
harm.
[32] In the result, I make the following order:
1. The arrest and detention of the plaintiff on 23 November 2011
was wrongful.
2. The first to third defendants are jointly and severally liable to the
plaintiff, the one paying the other to be absolved, for such
damages as the plaintiff may prove he suffered in consequence
of the wrongful arrest and detention.
3. The costs of the action on merits are reserved for later
determination.
M.C. MAMOSEBO
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
For the plaintiff: Adv A Eillert
Instructed by: Dawid Senekal Inc
15
c/o Elliott Maris Wilmans & Hay
For the 1st & 2nd defendants: Mr MC Davis
Instructed by: The State Attorney
For the 3rd defendant: Ms JA Snyders
Instructed by: Engelsman Magabane Inc