IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
Reportable
CASE NO: 3950/2021
In the matter between:
XOLISA MGWEBI Plaintiff
and
MINISTER OF POLICE Defendant
__________________________________________________________________
JUDGMENT
__________________________________________________________________
RUSI J
[1] The plaintiff sued the defendant for damages in the sum of R1 000 000.00,
for contumelia, injury to his reputation, trauma and discomfort, resulting from his
arrest and detention by the members of the defendant on 15 April 2021 in Mt Frere.
He alleges that he was unlawfully arrested and subsequently detained at the
instance of the mem bers of the defendant, for a period of 13 days, from 15 to 28
April 2021. The arrest followed his failure to appear in the Mt Frere Regional
Court on 23 March 2021.
[2] In his particulars of claim, the plaintiff, chiefly, alleged that his arrest and
detention were unlawful in that he was arrested on the strength of a defective
warrant. He had not committed any offence in the presence of the police, and he
was misinformed of the date of his appearance in court as being 22 March 2021,
which day fell on a publ ic holiday. He further alleged that his arrestors failed to
properly apply their discretion in relation to his arrest and detention, and/or acted
mala fide with ulterior motives. He was not brought to court immediately after his
arrest, alternatively, he was brought before an incorrect court.
[3] Regarding his detention, he pleaded that he was detained in the Mt Frere
police station holding cells from 15 to 17 April 2021, whereafter he was transferred
to the Mthatha Correctional Centre where he was further detained until 28 April
2021. The conditions in which he was detained in the Mthatha Correctional Centre
were unhygienic. As a result of his unlawful arrest and detention, he suffered
contumelia, injury to his reputation, and he was subjected to trauma and
discomfort.
[4] The defendant denies liability for the plaintiff’s claim. In essence, the
defendant pleaded that the plaintiff was lawfully arrested on the strength of a
warrant of arrest that was issued by the Magistrate for his failure to appear in cour t
on 23 March 2021 in connection to a charge of murder after he had been released
on bail. Since there had been two warrants of arrest that were previously issued
against the plaintiff, at the time of his arrest, Sgt Nongqwenga erroneously
exhibited to him the incorrect warrant of arrest.
[5] In resisting liability for damages that resulted from the plaintiff’s detention
after his arrest, the defendant pleaded that once the plaintiff was brought before
court, the decision regarding his further detention fe ll within the powers of the
court.
[6] On the date of the trial of the matter, the parties applied that the merits of the
plaintiff’s claim be separated from the quantum of damages. This application was
granted.
[7] The parties presented a stated case as envisaged in Rule 33(1) of the
Uniform Rules of Court. These are facts agreed upon by the parties pertaining to
the merits of the plaintiff’s claim. The plaintiff failed to appear before the Mt Frere
Regional Court on 23 March 2021. On the same day, a war rant was authorized for
his arrest, his bail money was provisionally forfeited to the State, and his bail was
provisionally cancelled. On 15 April 2021 around 13h30, he was arrested by Sgt
Sompa in the company of his female colleague, Sgt Nongqwenga. The a rrest was
effected near Cash Build, in Main Street, Mount Frere.
[8] The warrant that was executed on the plaintiff in Mt Frere is the warrant of
arrest that was issued in the Ntabankulu District Court and had eventually been
withdrawn. The plaintiff was made to appear before the Mt Frere Regional Court
in the same afternoon of his arrest. After his arrest, he was detained in the Mt Frere
SAPS holding cells, and on 17 April 2021, he was transferred to the Mthatha
Correctional Centre. He was released on 28 April 2021, being the day on which he
was brought to the Mt Frere Regional Court for an enquiry into his failure to
appear in court. Consequent to his arrest, he remained in custody for thirteen (13)
days.
[9] In the statement of agreed facts, the parties made reference to annexures
which entailed the record of proceedings against the plaintiff in the Mt Frere
Regional Court, the warrant of arrest that was issued by the Magistrate,
Ntabankulu District Court, on 28 October 2020 and on the strength of which the
plaintiff was arrested on 15 April 2021 (the incorrect warrant), and the warrant of
arrest that was issued on 23 March 2021 by the Mt Frere Regional Court. In the
parties’ minutes of their pre -trial conference in terms of Rule 37 of the Uniform
Rules, dated 20 July 2023, it was agreed that all discovered documents or copies
thereof will, without further proof, serve as evidence of what they purported to be.
The question of law
[10] The parties formulated th e question of law to be determined as whether the
plaintiff’s arrest and detention flowing from the defective warrant, were unlawful
or not. If they were unlawful, who should bear liability for the plaintiff’s damages
resulting therefrom.
The parties’ contentions
[11] It is the plaintiff’s contention that his claim against the defendant ought to
succeed, with costs, for the following reasons: an arrest flowing from a detective
warrant of arrest is inherently unlawful. In the light of the defendant’s admissi on
that his members “erroneously” showed plaintiff the incorrect warrant of arrest, his
arrest was unlawful. The plaintiff’s detention prior and post appearance in court, on
the 15 April 2021, is consequently unlawful. The defendant is wholly liable for
such detention as it flowed from the execution of a defective warrant. But for the
execution of the defective warrant, the plaintiff would not have been detained.
[12] The defendant contends that the plaintiff was in violation of his bail
conditions, as a re sult, the warrant of arrest dated 23 March 2021 was lawfully
issued and it had not been withdrawn. The defendant denies liability for damages
resulting from both the arrest and detention for the following reasons: the plaintiff
had a warrant of arrest issued against him, and he was sought by the police. He was
spotted by the arresting officer who arrested him.
[13] Even though an incorrect warrant of arrest was exhibited to the plaintiff, the
same person who was sought by the police was eventually arreste d. The defendant
did not take any further part ‘in the conduct and treatment’ of the plaintiff after
causing him to appear before the Magistrate. The detention of the plaintiff in the
Mthatha Correctional Centre was authorized by the Magistrate without the
influence of the defendant. In the event the court finds against the defendant, its
liability ought to be limited to the time from the plaintiff’s arrest up to the time he
appeared before the Magistrate.
The parties’ legal submissions
[14] Mr Matanda who appeared for the plaintiff submitted that the exhibition of
the incorrect warrant to the plaintiff at the time of his arrest, was a clear dereliction
of duty on the part of the plaintiff’s arrestors, notwithstanding the plaintiff’s
sacrosanct right to liberty.
[15] In the plaintiff’s supplementary heads of argument filed, with leave of court,
on 03 March 2025, it was further submitted, with reference to Minister of Police v
Sabisa and Another ,1 that the defendant’s contention that it was sufficient that a
warrant was obtained against the plaintiff, even if it was not in the possession of
the arrestor at the time of the arrest, cannot be sustained. In that case, it was held
that the existence of a warrant ‘somewhere’ does not (by itself) make the execution
1 Minister of Police v Sabisa and Another (725/2023) [2024] ZASCA 105; 2024 (2) SACR 553 (SCA) (28 June
2024).
of the arrest lawful. The arresting officer must be able to exhibit it to the intended
arrestee, at the time of the arrest or immediately thereafter, otherwise the object of
section 39(2) of the Criminal procedure Act 51 of 1977 is defeated.2
[16] He fu rther submitted that upon the plaintiff’s appearance in court on 15
April 2021, the Magistrate overlooked the issue of the defective warrant of arrest.
Mr Matanda was of the view that the unlawful conduct of the defendant’s members
is causally linked to th e decision of the Magistrate to detain the plaintiff further,
and that they subjectively foresaw that an enquiry into his failure to appear in court
would not be concluded on that same date of his appearance in court. Relying on
De Klerk v Minister of Police,3 Mr Matanda submitted that it was sufficient for the
plaintiff to sue only the defendant, he was not obliged to sue the Minister of
Justice.
[17] On behalf of the defendant, Mr Gumede principally submitted that even
though a defective warrant was used in arresting the plaintiff, the valid warrant was
still in force and the members of the defendant were still entitled to arrest the
plaintiff following his failure to appear in court. As regards the plaintiff’s detention
after his appearance in court, he submitted that t he defendant cannot be held liable
for that detention since it was the prerogative of the Magistrate. According to Mr
Gumede, since the plaintiff has not joined the Minister of Justice in these
proceedings, no liability can be placed on the defendant for t he conduct of the
Magistrate once the plaintiff appeared before court.
2 Ibid, para 25.
3 De Klerk v Minister of Police (CCT 95/18) [2019] ZACC 32; 2019 (12) BCLR 1425 (CC); 2020 (1) SACR 1 (CC);
2021 (4) SA 585 (CC) (22 August 2019), (‘De Klerk’), para 83.
The legislative framework and legal principles
[18] Since the arrest that forms the subject of the present case was on the strength
of a warrant of arrest that was issued in terms o f the Criminal Procedure Act 51 of
1977 (the Act), the lawfulness or otherwise of the actions of the police in arresting
and detaining the plaintiff, must be determined through the prism of the relevant
provisions of the Act.
[19] Section 67 of the Act gov erns the procedure to be followed when the
accused who was released on bail fails to appear in court. The relevant parts of this
section, for the present purposes, are the following:
(1) If an accused who is released on bail—
(a) fails to appear at the place and on the date and at the time—
(i) appointed for his trial; or
(ii) to which the proceedings relating to the offence in respect of which the accused is
released on bail are adjourned; or
(b) fails to remain in attendance at such trial or at such proceedings, the court before which
the matter is pending shall declare the bail provisionally cancelled and the bail money
provisionally forfeited to the State, and issue a warrant for the arrest of the accused.
(2)(a) If the accused appears before court within fourteen days of the issue under subsection (1)
of the warrant of arrest, the court shall confirm the provisional cancellation of the bail
and the provisional forfeiture of the bail money, unless the accused satisfies the court that
his failure under subsection (1) to appear or to remain in attendance was not due to fault
on his part.
(b) If the accused satisfies the court that his failure was not due to fault on his part, the
provisional cancellation of the bail and the provisional forfeiture of the bail money shall
lapse.
(c) If the accused does not appear before court within fourteen days of the issue under
subsection (1) of the warrant of arrest or within such extended period as the court may on
good cause determine, the provisional cancel lation of the bail and the provisional
forfeiture of the bail money shall become final.
(3) . . .’
[20] Once a warrant of arrest has been issued in terms of the Act, it must be
executed in accordance with the terms set out therein. This is in terms of section 44
of the Act which provides:
‘A warrant of arrest issued under any provision of this Act may be executed by a peace officer,
and the peace officer executing such warrant shall do so in accordance with the terms thereof.’4
[21] A peace officer effecting an arrest, whether with a warrant issued in terms of
any provision of the Act or without a warrant, is obliged, at the time of effecting
the arrest or immediately after effecting the arrest, to inform 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. The
provisions of section 39(2) of the Act are peremptory in this regard.
[22] With the plaintiff’s arrest and detention admitted, the onus rested on the first
defendant to justify the arrest and detention. 5 I turn to consider the question of law
before me.
Discussion
4 Emphasis intended.
5 Minister of Law and Order and others v Hurley and another 1986 (3) SA 568 (A).
[23] For reasons that will become clearer later on in this judgment, it is
significant to highlight that the warrant that was issued against the plaintiff for his
failure to appear in court on 23 March 2021 whereas it was a condition of his
release on bail that he does so, was issued by the Magistrate in terms of section 67
of the Act.
[24] Unlike in the case of a warrant issued in terms of section 43 of the Act, 6 the
factors that will trigger the issue of the warrant forming the subject of this action
are that the accused:
(a) Was released on bail;
(b) Failed to appear at the place and on the date and at the time appointed for his
trial; or to which the proceedings relating to the offence in respect of which
she/he was released on bail are adjourned; or
(c) Failed to remain in attendance at such trial or at such proceedings.
[25] It is co mmon cause between the parties that the plaintiff had been released
on bail when failed to appear in court the Mt Frere Regional Court on 23 March
6 Section 43 provides:
‘43 (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.
whom the warrant is applied for has committed the alleged offence.
(2) A warrant of arrest issued under this section shall direct that the person described in the warrant shall be arrested
by a peace officer in respect of the offence set out in the warrant and that he be brought before a lower court in
accordance with the provisions of section 50.
(3) A warrant of arrest may be issued on any day and shall remain in force until it is cancelled by the person who
issued it or, if such person is not available, by any person with like authority, or until it is executed.’
2021, resulting in the issue of a warrant for his arrest. The parties further made
common cause of the fact t hat on 15 April 2021, the plaintiff was arrested on the
strength of an incorrect warrant that was issued by the Magistrate in Ntabankulu
for his failure to appear in that court on 28 October 2020.
[26] It must necessarily follow that the warrant that was exhibited to the plaintiff
at the time of his arrest was an incorrect warrant for the purposes of his arrest on
15 April 2021. Among the basis on which this must be so, is the fact that ex facie
that same warrant, it was alleged that he had failed to compl y with a bail condition
that he shall appear in the Ntabankulu Magistrates’ Court on 28 October 2020. This
was clearly not the basis for his arrest in so far as the warrant for which he was
purportedly arrested, dated 23 March 2021, was concerned.
[27] As a starting point, it must be emphasized that since arrest is a drastic
infringement of a person’s right to liberty, strict compliance with the provisions of
the Act in executing it is required.
[28] I shall proceed with the determination of the issues before me on the
acceptance of the fact that the plaintiff made no claim that he demanded a copy of
the warrant on the strength of which he was arrested. In any event, a concession
was made by the defend ant that at the time of his arrest the plaintiff was
erroneously shown the incorrect warrant of arrest.
[29] When effecting an arrest, the police are held to the standard of
reasonableness or rationality. Any conduct that does not meet such standard
translates to unlawfulness. The reasons are not far to seek – as mentioned, arrest
constitutes a drastic infringement of a person’s right to liberty. The defendant’s
contention is that the correct warrant, which indeed forms part of the documents
that the parti es relied on for the determination of the question before me, was in
existence somewhere at the time his members spotted the plaintiff near Cash Build
in Mt Frere.
[30] The concession that the defendant made, that his members displayed to the
plaintiff an incorrect warrant of arrest gives rise to an important question whether,
at the crucial time of exhibiting the warrant arrest and arresting the plaintiff, the
plaintiff’s arrestors acted lawfully in arresting him. I have not come across, nor
was I referre d by Counsel to any authority that deals with the lawfulness of an
arrest based on ‘an incorrect warrant’ in circumstances where the correct warrant
was in existence ‘somewhere’ and not in the possession of the arresting officer.
[31] However, as the Cour t held in Ivanov v Northwest Gambling Board and
Others,7 a warrant is no more than a written authority to perform an act that would
otherwise be unlawful. It must comply with the statutory provisions. 8 It stands to
reason that the lawfulness of the plain tiff’s arrest in the circumstances of the
present case, depended on the legality of the warrant of arrest on the strength of
which he was arrested. The importance of this must be seen against the background
of the trite principle of our law that the depriv ation of person of their liberty must
be for acceptable reasons and it must be done in a manner that is procedurally fair.9
[32] Even though the case of Ivanov related to a defective warrant, I see no
reason why the same principle should not apply in the case of an incorrect warrant
being used in performing the act in question, such that , if a person is arrested on
the strength of an incorrect warrant, from ince ption, the action taken on the
strength of that warrant becomes unlawful. The rationale behind this reasoning was
7 Ivanov v North West Gambling Board and Others (312/2011) [2012] ZASCA 92; 2012 (6) SA 67 (SCA); 2012 (2)
SACR 408 (SCA); [2012] 4 All SA 1 (SCA) (31 May 2012).
8 Ibid, para 14.
9 S v Coetzee and Others 1997(3) SA 527, at 591G-I.
explained, albeit in a context different from the present, by Harms DP in Cadac
(Pty) Ltd v Weber-Stephen Products Co,10 in this way:
‘The dec laration of invalidity operates retrospectively and not prospectively. This means that
once a warrant is set aside it is assumed that it never existed, and everything done pursuant
thereto was consequently unlawful.’
[33] But as the court held in Minister of Police v Sabisa and Another ,11 the fact
that at the time of the arrest there existed somewhere, in a real sense, a properly
issued warrant of arrest cannot, without more, lead to a finding that the arrest was
lawful. Even though, in this case, plaintiff made no demand for the warrant, but his
arrestors displayed it on their own, that cannot exonerate them from strictly
complying with the provisions of the Act in arresting the plaintiff on the strength of
the purported warrant of arrest.
[34] In upholdin g strict compliance with the provisions of section 39(2), the
Court, in Minister van Veiligheid en Sekuriteit v Rautenbach ,12 held that section
39(2) reflects well -known and weighty principles of legal policy. The arrest of a
person deprives them of their liberty. It is therefore essential that, as soon as
reasonably possible, they must be informed of the reason for this drastic
infringement on their fundamental rights. To achieve this objective, a strict
application of the statutory requirements must be em ployed, rather than a lenient
one.13 I accept that the facts of Rautenbach are distinguishable from those in the
present case, in that the plaintiff in casu, unlike the respondent in Rautenbach, did
not request a copy of the warrant. However, this principl e and the rationale behind
it, find application in casu.
10 Cadac (Pty) Ltd v Weber-Stephen Products Co 2011 (3) SA 570 (SCA) para 18, referred to in Ivanov, at para 14.
11 Foot note 1, supra, at para 25.
12 1996 (1) SACR 720 (A), at 731g-h.
11 Foot note 1, supra, at para 25.
12 1996 (1) SACR 720 (A), at 731g-h.
13 Ibid, at 731g-h. See also, see also unreported Full Bench appeal judgment of Rugunanan J, in Magoabi v Minister
of Police (CA303/2017) [2019] ZAECGHC 74 (8 August 2019), para 7.
[35] Not only was an incorrect warrant exhibited to the plaintiff at the time of his
arrest, but as agreed by the parties in their statement of agreed facts, that warrant
was eventually withdrawn by the court that issued it. In essence, that warrant no
longer had any legal force or effect by reason of the fact that it was withdrawn. I
am acutely alive to the fact that Sgts Nongqwenga and Sompa had to act swiftly
upon spotting the plaintiff in town. Since the arrest was authorized by a warrant, on
a proper reading of section 39(2), if, for one reason or the other, there could not be
compliance with the provisions of this section at the time of the arrest, Sgts
Nongqwenga and Sompa still had the opportun ity, immediately after arresting the
plaintiff, to comply with the said provisions by exhibiting the (correct) warrant of
arrest. Regard must of course be had on this score, to the fact that ‘immediately’
does not mean ‘instantaneously,’ as well as the fac t that trifling delays will not
amount to non-compliance.
[36] The statement of agreed facts is bereft of any indication that immediately
thereafter, or as soon as it became practical, Sgt Nongqwenga and/or Sgt Sompa
exhibited the proper warrant upon realizing their error. This brings to question their
intent and ability to comply with the provisions of section 39(2) of the Act at the
time of his arrest.
[37] The contention that the existence of the correct warrant in a real sense, is
sufficient to justif y the plaintiff’s arrest, can therefore not be sustained. It must
follow that the plaintiff’s arrest was unlawful.
[38] It bears remarking, in passing, that even though, in terms of section 67A of
the Act, failure to appear in court as a condition of bail is an offence punishable by
a fine or imprisonment not exceeding one year, the plaintiff’s arrestors would not
have been in a position to arrest him without a warrant in any event – not on any of
the grounds listed in section 40 of the Act. I turn to deal with the question whether
the defendant ought to then be held liable for the detention of the plaintiff
following his arrest up to the time of his appearance in court until his release on 28
April 2021.
The detention after arrest
[39] In terms of section 39(3) of the Act, the effect of an arrest shall be that the
person arrested shall be in lawful custody and that he shall be detained in custody
until he is lawfully discharged or released from custody. That the plaintiff was in
the custody of the police wh o arrested him from the point of his arrest near Cash
Build on Main Street, Mt Frere, until the point of his appearance before the
Magistrate, is incontrovertible. In the light of the finding I made that his arrest on
the incorrect warrant was unlawful, hi s subsequent detention, up to the point he
appeared before the Magistrate was unlawful.
[40] In determining whether the defendant is liable for the plaintiff’s detention
after his appearance before the Magistrate, it had to be established that the
unlawful conduct of the police was closely linked to his subsequent detention by
the Magistrate. Simply put, the question to be asked is whether, but for the
unlawful arrest by the police, the plaintiff would not have been detained by the
Magistrate.
[41] The plaintiff was arrested for his failure to appear on 23 March 2021 in the
same court that ordered his detention on 15 April 2021. After his (unlawful) arrest,
he was immediately brought to court. When he was brought to the Mt Frere
Regional Court the sa me afternoon of his arrest, his bail had become finally
cancelled with his bail money forfeited to the state. Upon his appearance, he was
remanded in custody until 16 April 2021. On this latter day, he was further
remanded in custody until 19 April 2021, a nd further from that date until 22 April
2021. On 22 April 2021, his case was postponed until 28 April 2021 for an enquiry
before a different magistrate into his failure to appear in court on 23 March 2021.
Whether the proposed procedure was correct in the light of the fact that the
plaintiff’s bail was finally forfeited to the state when he was bought before court,
falls beyond the scope of these proceedings.
[42] It was on 28 April 2021 that a different magistrate made a finding that the
plaintiff was not properly before court as he had been arrested and brought there on
the strength of a defective warrant. The public prosecutor who was seized with the
matter conceded this point.
[43] There cannot be any controversy regarding the fact that the plaintiff’ s
subsequent detention after he was brought to the Mt Frere Regional Court was at
the instance of the Magistrate whose ‘employer’, the Minister of Justice, is not a
party to these proceedings. From the facts agreed between the parties and the
record of pro ceedings in the Mt Frere Regional Court, the plaintiff was remanded
in custody by the Magistrate from 15 April 2021 until 28 April 2021 despite him
having been brought to court on an incorrect warrant. Viewed in this light, it can be
said that the plaintif f’s detention after his appearance in court from 15 April to 28
April 2021 was indeed unlawful.
[44] I must interpose to refer to the provisions of section 50(1) of the Act which
read:
‘(1) (a) Any person who is arrested with or without warrant for allege dly committing an offence,
or for any other reason, shall as soon as possible be brought to a police station or, in the case of
an arrest by warrant, to any other place which is expressly mentioned in the warrant.’
[45] It is indeed so, that in terms of the incorrect warrant the arresting officer was
directed to bring the plaintiff before court. In the present context that would be the
Ntabankulu court as specified in that warrant. What the statement of agreed facts
establishes is that Sgts Nongqwenga and Sompa’s actions in failing to arm
themselves with the correct warrant after they spotted the plaintiff in town, was
negligent, thus rendering their actions unreasonable.
[46] Must it then follow that the defendant is lia ble for the plaintiff’s subsequent
detention after he appeared before the Magistrate? In De Klerk,14 Theron J, who
wrote for the majority, held that if the defendant is to be held liable for the
detention of the plaintiff post first court appearance, it mu st be shown that there is
a sufficiently close causal link between a wrongful act or omission of the arresting
officer and the subsequent detention after appearance in court. 15 For this reason, it
matters not that the plaintiff has not sued the Minister of Justice.16 However, the
Court further held that there is no general rule that can be applied dogmatically in
order to determine liability, every matter must be determined on its own facts.17
[47] In the present case, the plaintiff would have been in the custody of the police
from the point of his arrest near Cash Build in Mt Frere, up to the point of his
appearance before the Magistrate who, upon that appearance, would determine
whether his further detention was justified. That this is so, is apparent fro m the
above quoted provisions of section 67(2) of the Act.
[48] The upshot of the facts agreed upon between the parties regarding the date
when the correct warrant of arrest was issued, viz, 23 March 2021, is that at the
time the plaintiff was brought to court on the defective warrant, a period of 14 days
after the issue of that warrant had elapsed. This gives rise to two scenarios for the
14 De Klerk, footnote 3, supra.
15 Ibid, para 60, 63.
16 Ibid, para 83.
17 Id.
plaintiff – firstly, after the lapse of 14 days without him appearing in court after he
was released on bail, he no lon ger had bail which had secured his pre -trial
freedom. The provisional cancellation of his bail and provisional forfeiture of the
bail money under the above quoted provisions of section 67, would have
automatically become final.
[49] Secondly, this would mean that upon his appearance in court, whenever that
would be, he would, by automatic operation of the provisions of section 67(2) (c)
afore quoted, remain in custody until he makes a fresh application for his release.
This position would have prevailed eve n where the plaintiff was lawfully arrested
on the strength of the correct warrant of arrest. For this reason, in the
circumstances of the present case, it cannot be said that but for the unlawful actions
of the police in arresting the plaintiff, he would not have been detained upon his
appearance in court.
[50] An ineluctable finding is that the link between the culpable conduct of the
police in arresting the plaintiff and his further detention at the instance of the
Magistrate from 15 April 2021 to 28 Apr il 2021 is too remote. In these
circumstances, the defendant cannot be held liable for the plaintiff’s further
detention after his court appearance. The defendant’s liability is limited to the
plaintiff’s arrest at or about 13h00 on 15 April 2021 near Cash Build in Mt Frere,
and his subsequent detention until his appearance before the Mt Frere Regional
Court. The question that remains is that of costs.
Costs
[51] The general rule is that the successful litigant must be awarded its costs
unless there are exceptional circumstances which justify a deviation therefrom. It is
trite that in awarding costs, the court exercises its discretion in accordance with
what is fair between the parties. One of the factors that the court takes into
consideration in its determ ination, is the extent of the parties’ success in a given
lawsuit. In the present case, the plaintiff was partially successful on the lawfulness
of his arrest and detention to a limited extent from the point of his arrest to his
appearance before the Magis trate. He was arrested at or about 13h30 on 15 April
2021 and immediately brought to court. When regard is had to the claim he
instituted, the greater portion of it is the detention after his appearance in court for
a substantial period of 13 days.
[52] That being said, the conduct of the members of the defendant, in not
ensuring that the plaintiff’s arrest was in strict compliance with the provisions of
statute, remains unconscionable. Therefore, despite the partial success of the
plaintiff’s claim, the i ssues of law on which that aspect of the claim turned are
important and warrant a commensurate cost order. The order I make below on costs
is what I consider appropriate in this case.
Order
[53] In the result, the following order shall issue:
1. The defendant is held liable for the agreed or proven damages resulting
from the plaintiff’s unlawful arrest on 15 April 2021, and subsequent
detention by his members, only from the time of arrest until the time of
plaintiff’s appearance before the Magistrate in the Mt Frere Regional
Court on 15 April 2021.
2. The defendant shall pay the plaintiff’s costs.
3. The determination of the plaintiff’s quantum of damages shall stand ove r
for determination at a later date.
---
_____________________
L RUSI
JUDGE OF THE HIGH COURT
Appearances:
For the plaintiff : Adv. EM Matanda
Instructed by : Jayiya Ngcaba Attorneys, Mthatha
For the defendant : Adv. MN Gumede
Instructed by : The Office of the State Attorney, Mthatha
Date heard : 27 February 2025
Date delivered : 02 September 2025