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
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO.: 505/2023
In the matter between:
K[...] M[...] Applicant
and
MINISTER OF POLICE Respondent
JUDGMENT
ZONO AJ:
Introduction
[1] The plaintiff instituted action proceedings against the defendant for
damages arising from plaintiff’s assault, arrest and detention that took
place on the 31 st December 2020 by the members of the South African
Police Service. It is averred that the defendant is vicario usly liable for the
delicts committed by the members of South African Police Service acting
within the course and scope of their employment with the defendant. It is
further averred that the police station in which these delicts took place is
under the authority and control of the defendant.
[2] The plaintiff avers that the members of the defendant failed to produce a
valid warrant of arrest when they were effecting the arrest. The members
should have considered to warn the plaintiff for court in terms of Section
56 of the Criminal Procedure Act 51 of 1977 (the CPA). The members
stated as a reason for his arrest that the plaintiff has contravened the terms
of the protection order, thereby exposing the complainant to imminent
harm. The arresting officer has no reasonable ground to suspect that the
plaintiff had contravened terms of the protection order. The plaintiff avers
that there was no reasonable ground to suspect that the complainant in the
domestic violence case would suffer imminent harm as a result of the
breach.
[3] With regard to the assault, the plaintiff avers that Sergeant Vazi and other
members pushed him, used force and pepper sprayed him at Vulindlela
Police Station. He was thereafter taken to NU1 Police Station where he
was detained in the cells over the weekend until the 04 th January 2021
when he first appeared in court and was denied bail. After he was denied
bail he was taken to be further detained at East London Correctional
Service in Westbank. The plaintiff pleads that charges against him were
withdrawn on numerous occasions b ut was released only on 24 th August
2021, which period total seven months in custody. The conditions in the
cells were plagued with poor ventilation, lack of sanitation, inadequate
ablution facilities, lack of privacy etcetera.
[4] The defendant pleads t hat the arrest was effected on the day in question
with a warrant of arrest, which was also discovered and admits that the
members were acting within their course and scope of their employment
with him. The plaintiff was arrested and detained for contraven ing the
provisions of section 17(1) (a) read with section 1, 5 and 6 of Domestic
Violence Act of 1998. The defendant further pleads that the plaintiff was
in lawful custody in terms of Section 39(3) and 50 of the CPA. The
plaintiff was arrested to bring him to justice. He was brought to court
within the requisite 48 hrs period1. Subsequent remands were made by the
court at the instance of the prosecution. With regard to the assault, the
defendant pleads that the members used a minimum force to overcome
plaintiff’s aggressiveness and to defend themselves. The plaintiff was
argumentative and uncooperative. He refused to have his finger prints
taken. It is denied that plaintiff’s charges were withdrawn on several
occasions. The plaintiff abandoned his bail application. He was indeed
released from custody on 24th August 2021.
[5] During evidence it became common cause that the plaintiff was arrested
on 31 st December 2020 and his first appearance was on 04 th January
2021. The plaintiff was arrested for the alleged contravention of the terms
of the protection order. He was released on 24 th August 2021 from
custody. Force was used by the members. In what follows I deal briefly
with issues that were disputed in evidence.
[6] The defendant disputed the existence of the protection and the warrant of
arrest flowing therefrom. However, both documents were discovered and
1 Section 35(1)(d)(i) of the Constitution; Section 50(1) of Criminal Procedure Act 51 of 1977.
made available for use by the court. During cross examination the
plaintiff was constrained to admit that no withdrawal of charges was ever
granted by the court. Instead, there is a clear record that he abandoned his
bail application. I will revert to this later in this judgment. An issue that
appear to be dispositive of the claim of arrest and detention is the one
around service of the p rotection court order. The matter was set down for
determination of both merits and quantum.
Assault
[7] Assault consists in unlawfully and intentionally applying force to the
person of another directly or indirectly; or threatening another with
immediate personal violence in circumstances which lead the threatened
person to believe that the other intends and has the power to carry out the
threat2. Snyman3 defines assault as follows:
“Assault consists in unlawfully and intentionally (a) applying force, directly or
indirectly, to the person of another; or (b) inspiring a belief in another person
that force is immediately to be applied to him.”
An assault is committed by a positive act or a threat. It can be committed
by a physical act of violence or by inspiring a belief that a force is to be
applied. The onus vests with the plaintiff.
[8] The basic rules governing the incidence of the onus of proof have been
set out in the case of Pillay v Krishna 4. The three rules are: the case of
Pillay5 The three rules are the following:
2 LAWSA, V olume 6, Page 248 Para 247
3 CR Snyman
4 Pillay v Krishna and another 1946 AD 946 at 951-2
5 Pillay v Krishna and Another 1946 AD 946 at 951-2
“(a) if one person claims something from another in court of law, then he
has to satisfy the court that he is entitled to it.
(b) Where the person against whom the claim is made is not content with a
mere denial of that claim, but sets up a special defence, then he is
regarded quo ad that defence, as being the claimant: for his defence to
be upheld he must satisfy the court that he is entitled to succeed on it.
and
(c) He who asserts, proves and not he who denies, since a denial of a fact
cannot naturally be proved provided that it is a fact that is denied and
that the denial is absolute.”
[9] In National Employers General Insurance Co Ltd 6 Eksteen AJP had this
to say:
“…Where the onus rests on the plaintiff as in the present case, and where
there are two mutually destructive stories, he can only succeed if he satisfies
the Court on a preponderance of probabilities that his version is true and
accurate and therefore acceptable, and that the other ver sion advanced by the
defendant is therefore false or mistaken and falls to be rejected. In deciding
whether that evidence is true or not the Court will weigh up and test the
plaintiff’ s allegations against the general probabilities. The estimate of
credibility of the witness will therefore be inexplicably bound up with a
consideration of the probabilities of the case and, if the balance of
probabilities favours the plaintiff, then the Court will accept his version as
being probably true. If, however, the pr obabilities are evenly balanced in the
sense that they do not favour the plaintiff’ s case any more than they do the
defendant’ s, the plaintiff can only succeed if the Court nevertheless believes
him and is satisfied that his evidence is true and that the d efendant’ s version is
false”.
[10] The onus of proving the elements of the assault is on the plaintiff. Both
parties were ad idem about the fact that the plaintiff bears the onus of
proof in respect of the claim of the assault. Although there is also a c laim
proof in respect of the claim of the assault. Although there is also a c laim
arising from plaintiff’s arrest and detention in respect of which onus of
proof lies with the defendant, parties agreed that a duty to begin is on the
plaintiff. The court accepted that approach 7. Both in the pleadings and in
evidence, the parties ar e ad idem that the members of the South African
6 National Employers General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) at 440 E-G.
7 Rule 39(13) of the Uniform Rules of Court (URC).
Police Service committed assault. The issue for determination is whether
that assault was justified.
[11] The defendant, as indicated above, posits a version, as will elaborately be
dealt with hereinunder, t hat the members used a minimum force to
overcome plaintiff’s aggression and violent advances with a view to
escape or flee. Although not specifically mentioned the facts of this case
demonstrate that the defendant relies on the provisions of Section 39(1)
and 49(2) of CPA. In Bato Star8 O’Regan J Held that:
“27. Where a litigant relies upon a statutory provision, it is not necessary to
specify it, but it must be clear from the facts alleged by the litigant that
the section is relevant and operative”.
This judgment gave Constitutional stamp to a plethora of judgments that
were followed before our constitutional dispensation9.
[12] Section 39(1) of CPA provides that:
“(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”.
[13] Having said the above section 49(2) of CPA provides thus:
“(2) If any arrestor attempts to arrest a suspect and the s uspect resists the
attempt, or flees, or resists the attempt and flees, when it is clear that an
attempt to arrest him or her is being made, and the suspect cannot be arrested
without the use of force, the arrestor may, in order to effect the arrest, use such
force as may be reasonably necessary and proportional in the circumstances
to overcome the resistance or to prevent the suspect from fleeing….”
8 Bato Star fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and others 2004 (4) SA 40
(CC); 2004 (7) BCLR 687 (CC) Para 27.
9 KeHeringham V City of Cape Town 1934 AD 80 at 90; Yannakou v Apollo Club 1974 (1) SA 614 (a) 623 F -
H.
[14] The correlation between section 39(1) and 49(1) of CPA underscores the
necessity of application of force to overcome the resistance or to prevent
the suspect from fleeing. The force must be used as a tool to effect the
arrest and to subdue the suspects ag gressiveness and attempt to flee. The
test of proportionality balances the nature and degree of the force used
and the threat posed by the suspect to the safety and the security of the
police officers10. The test seeks to ensure that the purpose of arresti ng the
suspect is achieved. It is fundamentally important that the purpose of use
of force is not punitive or retaliatory. Should the force use be punitive or
retaliatory that would constitute an excess that is legally impermissible.
[15] Lastly, the use of force in terms of the statute must be to enable the
police officer to achieve the Constitutional objects 11 of the police service.
Section 205(3) of the Constitution provides that:
“3. The objects of the police service are to prevent, combat and investigate
crime, to maintain public order, to protect and secure the inhabitants of
the Republic and their property, and to uphold and enforce the law.
[16] In paragraph 6 of the plea of the defendant makes the following
averments:
“6.1 The defendant pleads that:
6.1.1 Upon arrival at Vulindela Police Station, plaintiff was
uncooperative, argumentative and aggressive towards members
of the South Africa Police Service (the members).
6.1.2 The members had to use a manimal degree of force to defend
themselves, alternatively restrain the plaintiff.
6.1.3 The defendant admits its members used pepper spray in her/his/
their efforts to defend themselves, alternatively to restrain the
plaintiff” (sic).
10 S v Walters 2002 (2) SACR 105 (CC) Para 21.
11 Section 205 (3) of the Constitution.
[17] For purposes of this topic, I will sift the e vidence that relates to the
assault. The plaintiff testified that when the plaintiff became aware that he
was being arrested at Vulindlela Police Station, he asked Sergeant Vazi about
the case he was involved in, investigated by the same Sergeant Vazi.
Sergeant Vazi became angry and sought to hand cuff him with cuffs fixed
on the wall. He refused to be handcuffed by pulling his arm back as
Sergeant Vazi at that time had already grabbed his hand. The scuffle
ensued. In the midst of the scuffle anothe r female Police Officer came to
assist Sergeant Vazi and applied pepper spray on him and the police
officers ultimately managed to handcuff him. The plaintiff confirmed that
he refused to have his fingerprints taken.
[18] Sergeant Vazi makes common cause with parts of the plaintiff’s version.
He testified that on his arrival at Vulindela Police Station with the
plaintiff, he announced to the police officers present thereat that the
plaintiff was under arrest. He further sought section 35 warning
form and an arrest register to process the arrest of the plaintiff. It is at that
stage plaintiff’s attitude and demeanour changed and became
belligerent. According to Sergeant Vazi the plaintiff charged towards him
as he was confronting him about another case Sergeant Vazi was
investigating in which plaintiff was a witness.
[19] He sought to handcuff him, and scuffle ensued. Sergeant Vazi felt
overpowered by the plaintiff and he called for assistance from the two
female police officers who were on the other side of the office. At that
time the plaintiff wanted to overpower Sergean t Vazi so that he may
escape or flee. Sergeant Nongqele came with a pepper spray and
handcuffs and used pepper spray to calm the plaintiff. The plaintiff was
successfully handcuffed. They thereafter managed to control the plaintiff
and process his arrest , save for the fact that they were unable to take
plaintiff’s finger prints as he was refusing.
[20] Sergeant Nongqele confirmed that there was a scuffle between Sergeant
Vazi and the plaintiff and she came to assist as the plaintiff was saying he
could not be arrested by Sergeant Vazi. Sergeant Vazi and Nongqele
agreed to apply the pepper spray to calm the plaintiff down as he was
seemingly overpowering Sergeant Vazi. Pepper spray was applied and
plaintiff was handcuffed.
[21] Plaintiff’s evidence and that of two defendant’s witnesses demonstrate
that there was application of force and a pepper spray was used to
overcome the plaintiff to subdue to the arrest. The evidence confirms that
there was application of force onto the pl aintiff. The remaining issue for
determination is whether the assault was justified in terms of the law. It is
also important to allude to the fact that the plaintiff emphasized that he
was never hit by the police officers, but was pepper sprayed.
[22] If plaintiff’s version is anything to go by, that he was cunningly taken to
the police station by Sergeant Vazi, and became aware of the arrest when
he was already at the police station, it logically makes sense that out of
disappointment and feeling conned / tricked by Sergeant Vazi that he
would rapidly change his attitude and demeanour. Both the plaintiff and
Sergeant Vazi mentioned that the plaintiff enquired at the police station
about the case Sergeant Vazi is investigating where the plaintiff is a
witness.
[23] I am of the view that the plaintiff heard for the first time in the Police
Station that he was being arrested. That view is supported by the fact that,
when the plaintiff was interacting with Sergeant Vazi at his home, he
requested to be given opportunity to take with him a document that
relates to the other case Sergeant Vazi was investigating. That piece of
testimony is not gainsaid. The rhetoric question is; why would the
plaintiff be allowed to take a document that is totally unrelated to the case
for which he was arrested if at his home there was no talk about that case.
It is highly possible that the plaintiff got infuriated by Sergeant Vazi
deceipt. The common cause fact that at the police station Sergeant Vazi
and plaintiff conversed abou t the other case in which the plaintiff is
involved is in synch with and rhymes well with what Sergeant Nongqele
said that the plaintiff said he could not be arrested by Sergeant Vazi.
[24] He might probably have said that in the context of his disappointment and
anger arising from Sergeant Vazi’s trickery. Those words that he could not
be arrested by Sergeant Vazi might possibly have been accompanied by
his action of attempting to leave the police station. It is gainsaid that the
plaintiff resisted or a ttempted to flee the arrest. The fact that the plaintiff
is said to have co -operated from his home to the police station is not
insignificant. He co -operated because he probably was not aware of his
arrest until the time when he was being processed at the police station.
[25] In Stellenbosch12 Nienaber JA held:
12 Stellenbosch Famers’ Winery Group Ltd a Another v Martell and others 200 (1) SA 11 (SCA) at Para 5.
“On the central issue, as to what the parties actually decided, there are two
irreconcilable versions. So too on a number of peripheral areas of dispute
which may have a bearing on the probabilities . 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 witness. 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 his performance compared to that of other witnesses testifying a bout 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, integ rity 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 wi ll 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
when a court’ s credibility findings compel it in one direction and its evaluation
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.”
[26] On the conspectus of all this, the probabilities are that the plaintiff got
belligerent and sought to resists his arrest and at the same time attempted
to leave the police station. It is that reaction that triggered the application
of force and pepper spray. It is my considered view that there is no way
the plaintiff could ha ve been arrested, except to apply the force for
purposes of arrest and bringing him to justice. It is my considered view
that the force was proportional to the threat and force used by the plaintiff
to pave way for his flight. I find solace for this view o n the fact that there
is no evidence that there was further force that was used on the person of
the plaintiff after he was successful handcuffed. No injuries were reported
to have been inflicted on the body of the plaintiff. The plaintiff himself
categorically stated that he was not hit by the police officers, but was
pepper sprayed.
[27] In the amalgam of this I come to a conclusion that plaintiff’s assault
would have been in terms of Section 39(1) and 49(2) of CPA. However, a
brutal question, that dep ends on the next topic for an answer, is whether
provisions of section 39(1) and 49(2) of CPA are applicable if the arrest is
unlawful. It must generally be accepted that a person can lawfully resist
an unlawful arrest and as a corollary provisions of section 39(1) and 49(2)
of CPA would not come to the aid of the arresting officer and those who
are assisting him. These provisions are applicable only if the arrest is
lawful. This now drives me to the next topic of arrest and detention. I will
come back to this topic later in this judgment.
Unlawful Arrest and Detention
[28] It is apparent from the charge sheet that the plaintiff was arrested under
CAS No 18/12/2020, Case Number of which was A18/2025. The
annexure to the charge sheet is worded thus:
“That the accused is/are guilty of the crime of contravening the provisions of
section 17(1) read with section 1.5, 6, 7 and 17 of Domestic Violence Act, Act
116 of 1198 contravention of Protection order.
In that a protection order was issued on 24 -07-2018 at Mda ntsane Court, in
terms of which the said accused was prohibited and/or ordered and /or
directed to: - not assault, insult, abuse, harass, threaten or intimidate T[...]
M[...] in any way possible…. And this that the protection order was duly
served on the accused and is still in force and that the accused did upon or
about 05 -12-2020 and at or near St Mary Newlands in the District of East
London wrongfully and unlawfully contravened a prohibition and/or condition
a prohibition order against him/her in t hat the accused: - insulted the
complainant calling her as and shit” (sic).
[29] It is now plain that the court order that is alleged to have been
contravened was granted on the 24th July 2018. The record shows that the
24th July 2018 was a return day where final court order was granted. The
domestic violence proceedings were instituted on the 11 th June 2018 and
on the 13 th June 2018 the plaintiff was served with papers calling upon
him to show cause on the 24 th July 2018 why a final order cannot be
granted. It appears that a final order was granted on the 24 th July 2018
inter alia, prohibiting the plaintiff from physically and verbally abusing
the complainant and further prohibiting any other controlling abusive
behaviour. Th e plaintiff was prohibited from committing any act of
domestic violence or to enlist the help of another person.
[30] Section 6(5) of the Domestic Violence Act 116 of 1998 provides thus:
“(5) On the issuing of a final protection order the court must direct that—
(a)the original of such order must be served on the respondent within 4
8 hours or as soon as reasonably possible; and
(b)a certified copy of such order, and the original warrant of arrest
contemplated in section 8 (1) (a), must be served on the complainant,
in the
prescribed manner by the clerk of the court, sheriff or peace officer ide
ntified by the court.”
[31] Section 7 of the Act provides that:
“(7) Subject to the provisions of sections 5C (3) (c) and 7 (7) (b), a final protection
order issued in terms of this section—
(a)is of force and effect from the time that the existence and content of the orde
r have been served on the respondent; and
(b)remains in force until it is set aside, and the execution of such order is not
automatically suspended upon the noting of an appeal.”
The meaning of the word serve is subsumed in the definition of the word
deliver in the Magistrates’ Courts Rules13 which is defined to mean:
“To file with registrar or clerk of the court and serve a copy on the opposite
party either by hand-deliver, registered post, or where agreed between the
parties or so ordered by court, facsimile or electronic mail”.
Section 6(5) of the Act contemplates service of the copy of the court
order by the clerk of the court, sheriff or peace officer identified by the
courts. The court identified in the final order the peace officers in the
following words:
“A copy of this order and interim protection order as well as the warrant of
arrest for the respondent must be forwarded to the Vulindela Police Station.”
These documents can only be forwarded for a singular purpose, which is
to serve the documents in terms of section 6(5) of the Act; otherwise
forwarding documents to the police station would be absurd14.
[32] There is no evidence or averment that shows that the final protection
order granted on the 24th July 2018 was served in terms of the Act and or
Magistrates Court Rules15. The only indication of service available in the
record is in respect of the domestic violence papers which were served on
the 13th June 2018 by Vuyisile Nkalo who is recorded as an empowered
officer. The service of domestic violence papers was obviously before the
return date of the 24th July 2018 when the final order was granted.
13 Rule 2 of the Magistrate’s Courts Rules.
14 SATAWU and another v Garvas and others 2013(1) SA 83 (CC); 201 2 (8) BCLR 840(CC) Para 37; Cool
Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC) Para 28
15 Rule 9 of the Magistrates Court Rules
[33] The plaintiff, throughout his oral testimony denied knowledge of the
protection order, even when he was shown same in the record during
cross examination. That denial is underpinned by the following crucial
fundamental averments set out in the amended particulars of claim:
“5.1.6 The arresting officer failed to produce a valid warrant of arrest, the
protection order that was allegedly breached by the plaintiff and the affidavit
regarding the contravention of a protection order, during the arrest of the
plaintiff” (sic).
This drives me to the question of onus.
[34] In Hurley16Rabie CJ held:
“An ar rest constitutes an interference with the liberty of the individual
concerned and it therefore seems fair and just to require that the person who
arrested or caused the arrest of another person should bear the onus of
proving that his action was justified in law”.
It has long been firmly established in our law that every interference with
physical liberty is prima facie unlawful. Once the claimant establishes
that an interference has occurred, the burden falls upon the person
causing the interference to establish a ground of justification17.
[35] Section 12(1) of the Constitution provides that:
“Everyone has the right to freedom and security of the person, which includes
the right-
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial”.
The conduct or action of the arresting officer was an affront to this
constitutional right. This right may be limited18 in terms of law of general
application to the extent that the limitation is reasonable and justifiable in
16 Minister of Law and Order v Hurley 1986(3) SA 568 (A) 589 E-F.
17 Zealand v Minister of Jus tice and Constitutional Development and Another 2008 BCLR 601 CC, 2008 (2)
SACR 1 (CC) Para 25.
18 Mbalela v Minister of Police (1086/2018) [2025] ZAEC 8 (18 February 2025) Para 40.
an open and democratic society based on human dignity, equality and
freedom19. The defendant is therefore constrained to justify the action of
Sergeant Vazi who was an arresting officer.
[36] It is clear from plain meaning of the provision of section 7(1) of the Act
that a final order shall be in force and effect from the time that order is
served upon the respondent. The converse of that is that a final order shall
not be in force and effect if it has not been served upon the respondent.
The final protection order is of no force and effect if it has not been
served upon the respondent. Simply put, the court order is not operational
and executable. The non -operativeness of the order renders sam e not
functional and accordingly not effective. It is in a dormant and inactive
state.
[37] It is unequivocal that the plaintiff was arrested on the basis of a court
order that was not operative. There cannot be a breach of a court order
that is not in f orce or that is ineffective as a result of its dormant state. In
effect no offence relating to breach has been committed if the court order
was ineffective. The arrest on that basis was thus unlawful. The defendant
has dismally failed to discharge an onus resting on his shoulders to show
that the court order that was allegedly breached by the plaintiff was of
force and effect. He would only do that by proving that service thereof
was effected in terms of the law.
[38] The purpose of service of the court order is simple to advise the
respondent of the contents of the court order. If a court order is not
19 Section 36(1) of the Constitution.
served, the terms thereof can hardly be known by the person who is
expected to comply and obey it. The purpose of the service is to ensure
that a person, when deciding to disobey the court order does that wilfully
and with intention. Because a breach of a court order is akin to a
contempt of court order, it requires that a person charged of disobedience
was not only wilful; but was also intentional and delib erate in not
complying or disobeying the court order.
[39] A little wonder why the prosecution against the plaintiff was stopped in
terms of section 6(b) of CPA and the plaintiff was consequently acquitted.
It is not far to seek, based on the above findin gs, that the prosecution
realized that its case had no prospects of success on account of lack of
service of the court order. I therefore come to a conclusion that the arrest
of plaintiff by Sergeant Vazi was not only unlawful, it was also arbitrary.
[40] One vexing issue that required comment. I have alluded above that the
plaintiff was tricked and deceived by Sergeant Vazi and ultimately lured
to the Police Station where the plaintiff learned for the first time that he
was under arrest. He was taken fro m his home under false pretences that
he was going to deal with another matter. That conduct is antithetical to
the ethos of our Constitution and the law. That conduct lacked the high
standard of professional ethics contemplated in and by section 195 (1)(a )
of the Constitution. This section leaves no room for the deceipt and
trickery. The police officer is expected to be upfront with the suspect and
as part of his introduction inform the suspect of the real reason for his
visit at his home.
[41] The plaintiff seeks damages for his detention. The plaintiff is entitled to
the damages arising from his detention up to and including the date of his
first appearance in court. However, the plaintiff seeks damages for his
further detention post court appearance fr om the defendant. There is no
evidence tendered to support the contention that the defendant was
responsible for plaintiff’s further detention after his first appearance. The
prosecution and the court were central in the management of plaintiff’s
case duri ng and after his first appearance in court. An opportunity was
given to the plaintiff to apply for a bail and he abandoned that
opportunity and the plaintiff proffers no explanation for that election. To
be precise on the 03 rd February 2021 the Magistrate’ s Court recorded as
follows:
“Accused person before court, i/c Bail abandoned, accused asked questions,
raising other issues that he was not charged and did not ask to be sent to bail
court. Matter transferred back to A court. Court explained to no succes s”
(sic)
The investigating officer was excused. The record demonstrates that the
plaintiff never had an intention of applying for bail. This is gleaned from
the fact that the plaintiff stated on 03 rd February 2021 that he never asked
that the matter be sent to bail court.
[42] It is unequivocal that the plaintiff was not an innocent party in so far is
his further detention, after his first appearance in court. He refused to get
his finger prints taken. It was explained that finger prints are for purposes
of profiling the accused. Without finger prints accused pending cases and
previous convictions cannot be known. That information is crucial for
determination of accused bail. The plaintiff therefore is obviously not
entitled to damages arising from his de tention after his first appearance.
His lack of cooperation and argumentativeness rendered him to be the
author of his own misfortune.
Assault, Arrest and Detention
[43] I have found that plaintiff’s arrest and detention up to the date of his first
appearance were unlawful. I left the issue of assault hanging for this
determination.
[44] Whilst it is plain that the plaintiff was assaulted by the members of the
defendant, it is also established that such assault was meted out to subdue
the plaintiff to the arrest. It is further accepted that such assault was
proportional to the degree of threat and force the plaintiff was presenting.
For that reason, the defendant seeks refuge to the provisions of sections
39(1) and 49(1) of the CPA. The first question n ow is: Are the provisions
of section 39(1) and 49(1) of CPA available to the arrestor in
circumstnces where the arrest is unlawful?
[45] Those sections are meant to equip the police officers to discharge their
duty in terms of the law. Arresting is part of their duty 20. These two
prescripts aim at assisting the police officers to effect lawful arrest. It is
inconceivable that the law can b e used to break the law. A police officer
who takes the law into his own hands cannot seek refuge to these
provisions. The doctrine of legality, which is inextricably linked to the
rule of law does not countenance contravention of the law 21. The law
cannot countenance contravention of the law. It is a basic principle of our
20 Hiemstrar’s Criminal Procedure, Page 5-21.
21 Lester v Ndlambe Municipality 2014 (1) ALL SA 402 (SCA); 2015 (6) SA 283 (SCA) Para 27 and 28.
law that a court can never lend its aid to the enforcement of an illegal
act22. An assault committed by members of the South African Police
Service with the sole purpose of effecting an unlawful arrest is
unjustifiable. I accordingly come to a conclusion that plaintiff’s assault
by members of the defendant was unjustifiable and accordingly renders
the defendant liable for damages arising therefrom. This leads me to the
issue of quantum.
Quantum
[46] The plaintiff was arrested on 31 st December 2020 and detained at the
instance of the members of the defendant until 04th January 2021 when he
was making his first appearance in court. The period of detention was
four nights. The right to li berty is inextricably linked to human dignity 23.
Unlawful arrest and detention constitutes an inroad into the freedom and
right of an individual24.
[47] Section 12 deals with freedom and security of the person. Importantly it
provides as follows in relevant parts:
“Everyone has the right to freedom and security of the person, which includes
the right-
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence fr om either public or
private sources;
(d) not to be tortured in any way; and
………
(2) Everyone has the right to bodily and psychological integrity…….”
22 Cool Ideas 1186 CC v Hubbard and another 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC) Para 77.
23 Minister of Police v Du Plesssis 2014 (1) SACR 217 (SCA); Zealand v Minister of Justice and
Constitutional Development 2008 (4) SA 458 (SCA) Para 25.
24 Thandani v Minister of law and order 1991 (4) ALL SA 904 (A).
Section 10 deals with dignity as follows:
“Everyone has inherent dignity and the right to have their dignity respected
and protected”.
[48] In Diljan25Makaula AJA had the following to say:
“[18] The acceptable method of assessing damages includes the evaluation
of the plaintiff’ s personal circumstances; the manner of the arrest; the
duration of the detention; the degree of humiliation which
encompasses the aggrieved party’ s reputation and standing in the
community; deprivation of liberty; and other relevant factors peculiar
to the case under consideration.
[19] Whilst, as a general rule, regard may be had to previous awards, sight
should, however, not be lost of the fact that previous awards only serve
as a guide and nothing more. As Potgieter JA cautioned in Protea
Assurance Co. Ltd v Lamb:
‘It should be emphasised, however, that this process of
comparison does not take the form of a meticulous examination
of awards made in other cases in order to fix the amount of
compensation; nor should the process be allowed so to
dominate the enquiry as to become a fetter upon the Court’ s
general discretion in such matters. Comparable cases, when
available, should rather be used to afford some guidance, in a
general way, towards assisting the Court in arriving at an
award which is not substantially out of general accord with
previous awards in broadly similar cases, regard being had to
all the factors which are considered to be relevant in the
assessment of general damages. At the same time, it may be
permissible, in an appropriate case, to test any assessment
arrived at upon this basis by reference to the general pattern of
previous awards in cases where the injuries and
their sequelae may have been either more serious or less than
those in the case under consideration.”
[49] In Tyulu26 the Supreme Court of Appeal held:
“[26] In the assessme nt of damages for unlawful arrest and detention, it is
important to bear in mind that the primary purpose is not to enrich the
important to bear in mind that the primary purpose is not to enrich the
25 Diljan v Minister of Police (746/2021) [2022] ZSCA 103 (24 June 2022) 22 JDR 1759 SCA Para 18-19.
26 Minister of Safety and Security v Tyulu 2009 (5) SA 58 (SCA); 2009 (2) SCAR 282 (SCA); 2009 (4) ALL
SA 38 Para 26.
aggrieved party but to offer him or her some much-needed solatium for
his or her injured feelings. It is therefore crucial that s erious attempts
be made to ensure that the damages awarded are commensurate with
the injury inflicted. However, our courts should be astute to ensure that
the awards they make for such infractions reflect the importance of the
right to personal liberty and the seriousness with which any arbitrary
deprivation of personal liberty is viewed in our law. I readily concede
that it is impossible to determine an award of damages for this kind of
injuria with any kind of mathematical accuracy. Although it is always
helpful to have regard to awards made in previous cases to serve as a
guide, such an approach if slavishly followed can prove to be
treacherous. The correct approach is to have regard to all the facts of
the particular case and to determine the quantum of damages on such
facts ( Minister of Safety and Security v Seymour 2006 (6) SA
320 (SCA) 325 para 17; Rudolph & others v Minister of Safety and
Security & others (380/2008) [2009] ZASCA 39 (31 March 2009)
(paras 26-29).”
[50] A plaintiff is a male person who is described in the particulars of claim as
having been born on the 05 th October 1976. Apparently, he is staying at
his home with other members of his family. No further personal
circumstances of the plaintiff were made av ailable to me. Circumstances
outlined in paragraph 36 above fits four squarely in the determination of
an award. He was arrested on 31 st December 2020 when he was relaxing
at home. He appeared in court on 04 th January 2021. As alluded to above
he spent fo ur nights in custody before his first appearance. I have
considered other comparable cases in this Division. An amount ranging
from R20 000.00 to R25 000.00 has been granted in comparable case for
a period not exceeding 24hrs. I therefore come to a conclu sion that an
amount of R80 000.00 is appropriate as a compensation for plaintiff’s
amount of R80 000.00 is appropriate as a compensation for plaintiff’s
arrest and detention from 31st December 2020 to 04th January 2021.
[51] With regard to assault, pain was inflicted upon the plaintiff by Sergeant
Vazi and Nongqele. However, no injuries were sustained by the plaintiff.
The pain was inflicted by means of a pepper spray which was used to
subdue the plaintiff to arrest. In the circumstances a compensation of
R20 000.00 for the assault is suitable.
[52] In the result I would make the following order:
1. The defendant is liable to pay to the plaintiff an amount of
R80 000.00 (Eighty Thousand Rands) in respect of his unlawful
arrest and detention from 31 st December 2020 to 04 th January
2021.
2. The defen dant is liable to pay plaintiff damages arising from
his assault on 31 st December 2020 in the amount of R20 000.00
(Twenty Thousand Rand).
3. The defendant is liable to pay costs of suit.
________________________________
A.S ZONO
JUDGE OF THE HIGH COURT(ACTING)
APPEARANCES:
For the Plaintiff : Adv TEKO
Instructed by : Msitshana Incorporated
No. 72 Cnr Hill and High Street
Office 114, Old Sanlam Building
Makhanda
Tel: 046 940 0634
Ref: Mr Msitshana/Buncoko/M[...]
Email: msitshanaincorporated@telkomsa.net
For the Defendant :Adv JOZI
Instructed by :SHENXANE,N INCORPORATED
87 High Street
Office 28
Fidelity Building
Makhanda
Tel: 072 869 7024/ 064 502 0575
Email: shenxanenkulie@gmail.com
Matter heard on : 25 August 2025
Delivered on : 16 September 2025