Saneka v Minister of Police (Appeal) (CA157/2021) [2025] ZAECMKHC 79 (28 August 2025)

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MAKHANDA
CASE NO: CA 157/2021

In the matter between:

SABELO SANEKA APPLICANT

And

THE MINISTER OF POLICE RESPONDENT
__________________________________________________________________

APPEAL JUDGMENT
__________________________________________________________________

THE COURT,

Introduction:
[1] The appellant appeals against the entire judgement of a Magistrate of the
New Brighton Magistrate’s court pursuant to which he dismissed the appellant’s
claim for unlawful arrest and detention with costs.

THE APPLICATION FOR CONDONATION:

The prior appeal proceedings of 4 March 2022:

[2] The matter was previously enrolled for hearing before this court on 4 March
2022. It transpired approximately three weeks before that hearing date that the
appellant had not filed a complete transcript of the trial proceedings.

[3] The respondent had contend ed in heads of argument filed in anticipation of
the appeal that it had lapsed due to the appellant’s non -compliance with the
provisions of Uniform Rule 50 (4)(a) and 7(a) and (b) which relate to the
expectation of filing a compliant record at the time of the appeal being prosecuted.

[4] Ms. Du Toit, who appeared for the appellant on that occasion too, had to
concede as much that on the date by which the appellant was required to have filed
the appeal record it was incomplete, and that the requisite certifica te which had
been filed together with the record confirming that it was in all respects correct, in
effect misrepresented the true reality.

[5] The portion of the record that the appellant failed to include in the main
record, entailing the evidence of one Constable Appolis, was in fact supplemented
on 11 February 2022, on which date it was filed with the Registrar as well.
However, the customary copies of the supplemented volume (comprising only 21
pages each) were not placed before the panel of judges expe cted to hear the appeal
who, for good reason, were reluctant to read the additional volume.

[6] The appellant’s non-compliance with the rules aforesaid notwithstanding, no
application for condonation was made before the court on 4 March 2022. This
would in our view have been necessary whether the appeal judges had read the
supplemented volumes or not. As is evidenced from a transcript of the proceedings
on that date, Ms. Du Toit instead simply purported to explain to the court from the
bar that the omission of Constable Appolis’ evidence from the appeal record was
due to an oversight on the appellant ’s part and hoped that this could be overlooked
and the appeal heard as a matter of course since the shortcoming had by then been
remedied.

[7] She appeared to accept unreservedly, however, that the appeal had lapsed
and that it would be necessary ultimately for the appellant to have to bring an
application to reinstate it, and for condonation.

[8] In the circumstances the matter was struck from the roll and the appellant
ordered to pay the wasted costs.

The application for re-instatement of the appeal:
[9] The appellant thereafter sought to reinstate the appeal, but only after a period
of some two years. An application was filed on his behalf to condone the
shortcomings with the record that had by all accounts by then been remedied. We
emphasize “on his behalf”, because there is no affidavit filed by him in support of
the application. The founding affidavit put up by his attorney perfunctorily
repeated the excuse that had been furnished orally to the court on 4 March 2022,
namely that counsel had coincidentally n oticed that certain evidence had not
formed part of the record, but that this mistake had almost immediately upon its
realization been remedied.

[10] The view was again adopted in the supporting affidavit that this had been
done well in time for the court th en seized of the appeal not to have been
inconvenienced, so that a condonation application at the time seemed unnecessary
in the circumstances. In any event, so the appellant’s attorney contended, the
degree of non -compliance was not excessive and the shor tcoming confined to
minimal impact. She contended that the respondent had not been prejudiced
thereby. Contrariwise, the appellant had certainly suffered the fate of the appeal
being struck off the roll on 4 March 2022 with a costs order against him.

[11] Also contended in the affidavit filed on the appellant’s behalf is the assertion
that the case is of substantial importance to him given that he was litigating to
enforce his constitutional rights to dignity and to be free from violence; and that he
enjoys good prospects of success in respect of the appeal.

[12] What the affidavit does not deal with though, is the reason why there was a
delay of two years or more before the present application for reinstatement and
condonation was eventually prosecuted. Given M s. Du Toit’s submission from the
bar it appears that his appeal was relegated to the backburner after it was struck
from the roll and not pursued again until he made enquiries from his attorney. One
gains the unfortunate impression that the appellant was perhaps not kept in the loop
about the defeat on 4 March 2022 which Ms. Du Toit readily conceded had been a
regrettable outcome that she herself felt responsible for.

[13] We take our cue from that that the appellant himself was probably innocent
concerning the delay that ensued in respect of the prosecution of the condonation
application and would indeed have been prejudiced if this court was not prepared
to reinstate the appeal.

[14] It was not surprising that the respondent opposed the application, especially
on the basis that the appellant has failed to account for the delay in its entirety.
Also seriously contended for on behalf of the respondent is the submission that the
appellant has no prospects of success in the appeal; a view we obviously differ
with for the reasons indicated below.

[15] It is a trite proposition that an applicant for condonation is required to give a
full and candid explanation for his/her non -compliance with the rules of court in
order to show sufficient cause for condonation in such respect. The summary
provided in Melane v Santam Insurance Co Ltd 1 concerning what is important for
an applicant for condonation to focus upon and how the court’s discretion is to be
exercised in respect of such a request is instructive:

1 1962 (4) SA 531(A).

“In deciding whether sufficient cause has been shown, the basic principle is that the Court
has a discretion, to be exercised judicially upon a consideration of all the facts, and in
essence it is a matter of fairness to both sides. Among the facts usually relevant are the
degree of lateness, the explanatio n therefor, the prospects of success, and the importance
of the case. Ordinarily these facts are interrelated : they are not individually decisive, for
that would be a piecemeal approach incompatible with a true discretion, save of course
that if there are no prospects of success there would be no point in granting condonation.
Any attempt to formulate a rule of thumb would only serve to harden the arteries of what
should be a flexible discretion. What is needed is an objective conspectus of all the facts.
Thus, a slight delay and a good explanation may help to compensate for prospects of
success which are not strong. Or the importance of the issue and strong prospects may
tend to compensate for a long delay. And the respondent’s interest in finality must not be
overlooked. I would add that discursiveness should be discouraged in canvassing the
prospects of success in the affidavits.”2

[16] The facts of the present application are unusual in that the degree of non -
compliance that caused the appellant’s appeal to be struck from the roll on 4 March
2022 was indeed of minimal impact and the reach not of enduring effect. Neither
does the reason for the shortcoming itself fail to commend itself to us. It was an
oversight, plain and simple, whi ch the appellant’s legal representatives made no
bones about and a mistake which they fixed as quickly as they could in the hope
that the appeal could still be heard.

[17] Despite its paucity, the adequacy of an explanation does not fail the standard
for con donation because it is brief and curt (it is certainly reasonable enough in

2 At 532 B – F.

itself to excuse the default under scrutiny), 3 neither can the appellant’s legal
representatives be condemned for their thinking that they could still have pushed
through with the appeal on 4 March 2022 without any application for condonation.
Perhaps if the supplemented volumes had reached the panel of judges three weeks
before the appeal was to be heard initially, instead of languishing in the Registrar’s
office, the day may have been saved. The inconvenience to our colleagues was,
however, certainly of sufficient impact to have warranted the appeal being struck
off the roll at the time with a costs order.

[18] What is of concern though is the impression given through the attorney’s
casual attitude in moving the desired application more than two years later without
any explanation for that happenstance, that condonation was a done deal and
merely for the asking. Ms. Du Toit, in good faith we believe, acknowledged that
the application was hopelessly inadequate from this perspective but petitioned us to
hear the appeal from the point of view that there are reasonable prospects of
success therein. For the reasons which follow, we would be inclined to agree that
the merits of the appeal are of particular persuasion to us, and that the matter is
important to the appellant.

[19] It is, in addition, fair to consider the standard that a court will grant relief if
the non -compliance with the rules is attributable to a bona fide mistake due to
misunderstanding or an oversight on the part of the applicant or his attorney and
which was not due to deliberate or willful default or to neglect or to gross
negligence. Indeed, where the default has been due solely to the negligence of the

3 See Grootboom v National Prosecuting Authority and Another (CCT 08/13) [2013] ZACC 37; 2014 (2) SA 68
(CC); 2014 (1) BCLR 65 (CC); [2014] 1 BLLR 1 (CC); (2014) 35 ILJ 121 (CC) (21 October 2013) in which the

court emphasized that the explanation should be “reasonable enough to excuse the default”, at para [23].

attorney, the cour t is reluctant to penalize the appellant by depriving him of his
right of appeal.4

[20] This is unfortunately one of those instances where it entirely escaped the
attorney’s imagination to act with the necessary alacrity and when she eventually
launched the application for reinstatement and condonation she missed the fact that
the envisaged relief was not for the mere asking, and would in the peculiar
circumstances require some explaining for the further delay that had superimposed
itself and which by obvious effect was prejudicial to the respondent who must have
assumed a conscious election by the appellant not to pursue the appeal any further.

[21] A person who has given his attorney full instructions is certainly entitled to
assume that the attorney will do e verything that is necessary to carry out those
instructions.5 In this instance it appears to be the case that the appellant at all times
intended to prosecute the appeal, which is a factor in favor of granting
condonation. This is evident in our view by the very fact that the record was
promptly supplemented, that an attempt was made to persuade the court on 4
March 2022 that the appeal should still be heard, and by the fact of the launching
of the present application for condonation itself, albeit only on 2 October 2024.

[22] It is a trite principle that condonation relief will more readily be granted if
some steps have been taken to prosecute the appeal, than if no steps had been
taken.6


4 Wessels v Bosman 1918 TPD 351.
5 Cairns’ Executors v Gaarn, 1912 AD 180.
6 Palmer v Goldberg 1961 (3) SA 692; Van der Merwe v Steenkamp 1925 OPD 179.

[23] Whilst the respondent was entitled to imagine that the appeal had been
abandoned by the absence of an appropriate application to condone after the fact,
this must be counterweighted in our view by the importance of the appeal to the
appellant as well as the prospects of success. In every other respect than the belated
application to condone (which apparent indifference does not appear consistent
with the appellant’s instructions to his attorney), the appeal was otherwise ready to
be prosecuted and indeed th e parties had gone to the trouble of filing heads before
the first enrolment already.

[24] In our view and especially given our conclusion below on the merits of the
appeal itself, we are constrained to find that it is in the interests of justice to grant
condonation.

[25] Such relief should however attract a costs order in favor of the respondent
whose opposition we believe was not unreasonable in all the circumstances.
Further we intend, as a measure of censuring the plaintiff’s attorneys for their part
in the debacle, to order that such costs will not be recovered from the appellant
himself but be payable by them personally.7



7 Rule 67 (2) (e) permits this court to make such an order with regard to the conduct of the litigation b y a legal
representative as a penalty therefor. See also S A Liquor Traders’ Association v Gauteng Liquor Board 2009 (1) SA
565 (CC) at 54.

THE APPEAL:

The Evidence adduced at the trial:
[26] We set out below the evidence adduced at the trial and comment critically
where appl icable since the magistrate failed to indicate how he analyzed the
evidence and dealt with the obviously conflicting versions that were before him.8

[27] A magistrate’s obligation as a trier of fact is vital to determine where the
truth lies in respect of ea ch of the disputed issues and in bringing a professional
impression to bear upon the issue of the veracity of the witnesses. 9 This is
unfortunately one of those cases where such accountability is found wanting.

[28] The appellant was arrested at his home on 9 April 2017 by one Constable
Burton on a charge of having assaulted the complainant the previous night at a
tavern, an accusation he did not challenge at the trial. He related that an altercation
had indeed taken place between him and the complainant concerning monies which
he had lent to the latter. He had on five occasions before asked him to repay him,
but to no avail. According to him they had wrestled at the tavern. He hit the
complainant with an empty bottle on the side of his face below the eye. In his view
the complainant had merely suffered a small cut below the eye which he saw for
himself. In his estimation, it was “ not a big wound ” and neither did he agree that
he could have almost hurt the eye itself. The cut was next to the eye and below it.

8 See the attitude expressed by the Constitutional Court in Mphalele v First National Bank of South Africa Ltd 1999
(2) SA 667 (CC) at 671 E – H on the importance of a presiding officer furnishing reasoned decisions to promote the
rule of law and a litigant’s constitutional right of access to court. See also Mhlengi v Minister of Police (CA
171/2020) [2021] ZAECGHC 59 (29 June 2021) at [19] in which the court criticized the magistrate for not letting
the court “into what (method) he used to assess the credibility of the witnesses’ evidence”.

the court “into what (method) he used to assess the credibility of the witnesses’ evidence”.
9 Minister of Police v Fry (CA 250/2019) [2020] ZAECGHC 150 (6 December 2020 at par [23]

[29] This view was offered by him in response to the assertion put to him that the
complainant had, in the view of the arresting officer, suffered a “ dangerous
wound” as a result of his assault.

[30] He said that after the altercation he had started to accompany the
complainant to his home to fetch the money owed to him but turned back after
informing the latter to instead bring the money to his own house. Thus, he denied
his presence at the complainant’s home after the assault incident, or that he had
purportedly threatened him in the presence of his mother as was put to him under
cross examination. 10 He similarly denied threatening the complainant in the
presence of the arresting officer and her colleagues at his home at the time of the
arrest.11 To the contrary, he maintained that he had not spoken to the complainant
in their presence at all although he was present in the vehicle with him after the
arrest. He coincidentally related on four different occasions in his testimony that
the complainant rema ined outside next to the vehicle and that he was not present
during the time of his own interaction with the police inside his house. (The
general tenor of his evidence in this respect was not challenged in its minutiae save
for the two specific assertions put to him under cross examination referenced in the
footnotes below.)12

[31] As for the arrest itself he testified that three plain clothes police officers had
arrived at his home on the Sunday around 17h00. Constable Burton took charge
and did the talking . He was asked if he was “ Sabelo”, and if he lived there. She

10 What was asserted was that according to the arresting officer, she was “ informed” that he had made threats to the
complainant at his place of residence that he was “not done with him”.
11 Thus too it was put to him that: “ Even when Constable B urton was arresting you, you had repeated these threats

because you told (the complainant) in her presence now, Constable Burton, that you were not done with (the
complainant)”.
12 See footnotes 10 and 11.

informed him that he was accused of assaulting the complainant the previous night
and told him that he was being taken to the police station. He claims that nothing
else was said to him and i ndeed added later on in his testimony that if he had been
given his rights as claimed by the police at his home already, he would have told
them to call his attorney who would have arranged that he report at court rather
than be detained.

[32] He, together w ith the police officers and the complainant, travelled in the
same vehicle to the station, first going via the complainant’s home and to the
tavern where the incident happened. He remained in the vehicle during these two
stops.

[33] At the police station Con stable Burton informed him that he is “ being
arrested now”. She did not say why, neither did he ask because he assumed that it
was about the assault of the complainant as had been discussed with him at his
house.

[34] As for the basis pleaded in his particula rs of claim that despite the fact that
his wife attended the Algoa Park police station and requested his release from
custody, the police members, who were on duty, refused to release him, the
appellant testified that he called his wife from the police st ation to come and
collect his phone on the advice of Constable Burton. When she arrived, he says
that she asked the police on duty if he could be released to go home with her.
They, however, informed her that they were arresting him and did not have the
right to release him. He, personally, did not request any police officer to release
him or to warn him to court.

[35] He agreed that he signed the notice of rights form (SAPS 14A) but it was not
clear when he received a copy of it. He thought that it was only on the ensuing
Tuesday. As an aside the notice suggests on the face of it that he signed it in the
presence of Constable Burton on the 9th at 17h15.

[36] He identified the warning statement taken from him by Constable Appolis on
the 11th at 06h30 which he cl arified he signed just before he was taken to court
where he was released on warning.

[37] He agreed that he was later convicted on the criminal charge of assault with
intent to do grievous bodily harm. He maintained, however, that it had been
unnecessary for the police to have arrested him at all, or to have detained him at
the police cells until the ensuing Tuesday when he made his first appearance in the
Magistrate’s court.

[38] The arresting officer’s involvement with the matter was on her account brief.
She received the A1 complaint from the Community Services Centre (“CSC”) at
16h30 on 9 April 2017 and read it. A colleague, Warrant Officer Willemse, had
taken the complainant’s statement according to the A1 at 16h20. It states that he
was assaulted at the tav ern by the appellant who “ took an empty red bottle and hit
(him) once under the left eye .” It records additionally that he sustained an open
wound of plus minus 3cm as a result. Further claimed in his statement is that the
appellant had taken him by the a rm and dragged him to his house to fetch the
money that was owed by him to the appellant. The culmination of this is that he
told his mother when he got there what the appellant had done to him. She, in turn,

so the statement reads, said to the appellant that the complainant would not be
paying the money to him after all because he had already assaulted him.13

[39] The arresting officer, Constable Burton, also had the benefit of the injury
statement that Warrant Officer Willemse recorded at the same time he deposed to
the A1 Statement. It states that he saw an injury described as a plus/minus 3cm
wound under the left eye. He noted in parenthesis that it was already stitched.

[40] As an aside the J88 medical report was by that date not to hand even though
the complainant stated in his founding statement that he had received treatment at
the Dora Nginza Hospital shortly after the assault.14 Why it was not available was
not suggested, but it was put to Constable Burton under cross examination that the
J88 report said that there was a soft tissue injury beneath the complainant’s eye. 15
Constable Burton readily conceded that if she had known of such a fact at the time
of arrest, or at least if the doctor had said that it was not a serious wound, she
would not have arrested the appellant but have instead issued him with a warning
to appear at court.

13 This is notably inconsistent with the assertion put to the appellant under cross examination that he had made
threats to the complainant at the latter’s place of residence, that he was “not done with him”.
14 According to the investigation diary, on 15 June 2017 the prosecutor was asking the investigating officer to file the
J88 report together with the requisite section 212 (4) (of the CPA) affidavit. Whilst this may be taken to mean that
the J88 was already to hand and that it was merely required to be co nfirmed on affidavit, it could also mean that it
was not in the docket at all yet by that date. We were informed by Ms. Du Toit in her heads of argument that the J88
report was never provided to the court at the trial, nor was it furnished to the appellan t. The issue of the gravity of

the wound which the arresting officer applied her mind to in the course of deciding to arrest the appellant was
critical, both regarding the issue the court had to determine concerning the lawfulness of the arrest, as well a s the
appellant’s counter intimation that the wound was not as serious or life threatening as the Police sought to make out.
The withholding of the medical report would suggest some impropriety on the part of the respondent by not inviting
a medical opinion that was available to the police before the appellant’s arrest, but the absence of the report from the
bundle of exhibits handed up by agreement at the commencement of the trial seemed not to have featured as a cause
for concern between the parties. Th e trial court did not reference the medical report at all in the judgment. Since it
was not included in the record, this court can make no assumptions about its evidentiary value.
15 This aspect of the evidence is curious. The J88 report does not form part of the record and it appeared to be
suggested from the way in which the questions had been posed to Constable Burton by Ms. Du Toit that she had
seen the report that was in her opponent’s possession in the docket. It would have been useful to know when i t
became available to the State for the first time. It remains a mystery why it was not central to the trial.

[41] Constable Burton testifi ed that when she read the founding documents, she
formed the impression that the appellant had inflicted a dangerous wound to the
complainant based on the wound’s proximity to the eye, the fact that the injury
statement said that it was 3cm “ deep” (as can be seen above the injury statement
says nothing of the sort) and because in her opinion the complainant could have
“lost” his eye. She also consulted with the complainant himself and personally
noticed that his wound was stitched. Additionally, he told h er that the injury is a
deep wound. This was the primary reason for her decision to have arrested the
appellant, which she claims she communicated to him at the time of his arrest.

[42] She could not agree with the appellant’s observation that he had only
inflicted a “small wound”. As far as she was concerned, she saw a wound that was
already stitched.

[43] But apart from her view that the injury was a dangerous wound, she padded
on in her oral testimony that the appellant had also been aggressive in her presen ce
when carrying out the arrest. Firstly, he was angry after she informed him of the
reason for the arrest. He told her that he knew his rights while she was reciting
them to him. She added that he said that he is “ not done” with the complainant and
that he was not going to “ leave him” until he paid him his money, concepts which
she was not prepared to concede under cross examination could, if true, also
simply have meant that the appellant intended, whatever the circumstances, to still
pursue the recovery of the loan to him. This she said happened in her and the
complainant’s presence. She related in her testimony that in a charged atmosphere
where both the appellant and his wife were swearing at the complainant (she later
watered this down to th em shouting at him), she tried to “ calm him” by “ warning

him not to threaten the complainant in (the police’s) presence.” (As an aside the
extent of such intervention by the police, and the involvement of his wife, were not
even put to the appellant when he testified.)

[44] This significant event (of the supposed intimidation) is, co -incidentally, not
borne out in the complainant’s A1 Statement. Neither is it mentioned in Constable
Burton’s arrest statement which she made at 17h50 immediately after the arrest , or
in her pocketbook, both of which (the affidavit and the related entry) would have
been made contemporaneously with the appellant’s arrest. What she says instead in
her arrest statement is that she arrested the appellant for “ Assault GBH ” after
introducing herself to him. The first paragraph of her statement says that the
appellant was identified by the complainant at “ Qhaquwa Street ”16 upon
investigation of the relevant complaint “ as a person who stabbed him ”. She also
took a statement from the compla inant which she herself commissioned in which
he states that at 17h00 he had pointed out the appellant to Constable Burton as “the
person who stabbed me”.

[45] If there was any doubt that she might have been mistaken in writing the
description that the appella nt had “ stabbed” the complainant, this is the operative
word she used in her oral testimony and which she repeated in revealing what the
complainant’s mother had reported to her as well.

[46] It is in our view significant that the act of stabbing the complaina nt is not
borne out in any other document, neither did Constable Burton say in her evidence

16 It appears from the docket that both the complainant and the appellant reside in the same street. No specific
address is indicated which may su ggest that the affiant meant to say that the pointing out happened in the street
itself. This would be consistent with the appellant’s version that the complaint did not enter his home at the time of
his arrest inside.

in chief that the complainant has said as much to her that he had been stabbed.
Indeed, on the face of the docket which forms part of the exhibits that were
referenced during the trial, the method used to commit the offence and the
instrument used on its occasion records that the complainant was “ hit with empty
bottle”. This is also reflected in the contemporaneous entry made by Warrant
Officer Willemse in the investigation diary at 15h50 on the 9th in noting the essence
of what the First Information of the Crime indicated.

[47] Constable Burton was led on several occasions in her evidence in chief to
confirm that the complainant was present at the appellant’s house at the time of the
arrest. When it was put to her that the appellant would deny that the complainant
was in the house, but instead outside, she discounted this as “his version”.

[48] Despite Warrant Officer Willemse’s recordal of his examination of the
injury, Constable Burton on the face of it recorded an entry in the investigation
diary supposedly at 16h30 on the 9 th. Her timing cannot be correct as she notes the
filing of further statements in the docket (identified as A3, A4 and A5) which were
by obvious implication only deposed to after she had arrested the appellant and had
returned to the station with him under arrest. She wrote, with reference to the
interview which she says she held with the complainant before proceed ing to the
appellant’s home to arrest him, that he “ alleges” that the appellant “ stabbed him”.
Even for the moment assuming that the complainant had said this to her, there is no
supplementary affidavit amongst the exhibits making up the docket’s contents
which records this significant amplification of the claimed assault first noted by
Warrant Officer Willemse. There is co -incidentally also no mention in the
complaint’s affidavit of the kind of intimidation Constable Burton indicated had
happened on the night before either.

[49] Constable Burton testified that later, after the arrest, the police proceeded to
the complainant’s house to interview his mother while the appellant remained in
the police vehicle outside. The mother confirmed to her that the appellant had
threatened her son after he had been “ stabbed” whereupon, so the mother said to
her, she had undertaken, because of the appellant’s threats, to borrow the monies
herself and repay to the appellant what was owed to him on her son’s behalf. No
affidavit was taken from the complainant’s mother. Asked why, Constable Burton
astonishingly stated that she had not seen a need to have taken one.

[50] After this stop they proceeded to the tavern and interviewed Mr. Sweleni,
who she was informed had been present du ring the altercation. This witness
confirmed to her that he had indeed seen the struggle on the night of the 8 th
between the appellant and the complainant. He heard the sound of a bottle breaking
(this was Constable Burton’s recall of what he had supposed ly told her) and then
“someone being hit with a bottle ”. It turned out to be the complainant, who was
bleeding. The witness then ran to the main house to ask for assistance.

[51] As an aside Mr. Sweleni deposed to his affidavit right there next to the
vehicle. It states, contrary to what Constable Burton related in her oral testimony,
that he had been present in the tavern at the time of the incident playing music. He
himself had been hit by an empty bottle. When he checked what was happening, he
had noticed the complainant in a struggle with the appellant. He further asserted
that: “(the complainant) was bleeding and that he quickly went to the main house
for help and when I came back they were outside the tavern. ” Significantly, again,
there is no mention by the witness of any glass breaking, or of a bottle neck having
been used to perpetrate the assault, or that he saw the appellant stabbing the

complainant. It is opportune to mention that it was put to the appellant’s under
cross examination when he test ified, no doubt upon the respondent’s instructions,
that he had assaulted the complainant with a “ bottel-kop”. (This which would
usually designate the opposite of an intact bottle which the appellant maintained
was instead implicated.)

[52] The next stop was the Algoa police station where Constable Burton read the
appellant his constitutional rights and caused him to sign a Notice of Constitutional
Rights (“ SAP14A”) in which only the offence of “ Assault GBH ” is listed as a
reason for his detention. This was at 17h15 on the 9 th. She left the appellant with
CSC where “things are being processed”.17 From there he went to the police cells
where, by obvious implication, he was detained.

[53] That was the sum total of her dealing with him and in fact she clocked off
from work at 6pm when her duty ended.

[54] Under cross examination she acknowledged that if a suspect is charged after
his arrest, this means that he or she can be taken to court.

[55] She was adamant that the reason for the appellant’s arrest related both to the
gravity of the assault injury and the fact that he had threatened the complainant in
their presence. (Later she added on that in her interview with the complainant he
had also indicated to her that he did not feel safe.)


17 She clarified that this would enta il registering the details in the “ register book”, the searching of the suspect and
then his being taken to the cells to be detained.

[56] She had to concede under cross examination that the information in the
docket, contrary to her testimony in chief and what had been put to the appellant
under cross examination when he testified, did not suppor t the suggestion that the
wound was in fact 3cm “ deep” but she persisted that the complainant had instead
told her during her initial interview with him that it was a deep wound. She related
that when she saw the wound herself it had about three to four st itches.18 She
further volunteered that it “ was not just a small wound ”. What she saw was a
wound already stitched and swollen.19

[57] In relating how the complainant felt about the incident she stated that he was
more concerned than upset. In justifying the latter, she says it was because the
appellant had said that he was not going to leave the complainant until he gets his
money. According to her this revelation (as well as the fact that the complainant
was stabbed) was made to her during her interview with the complainant prior to
the appellant’s arrest. She agreed that it was not in his statement deposed by
Warrant Officer Willemse.

[58] When it was suggested to her that she ought to have taken an additional
statement from the complainant (or added the emphasis that he had been stabbed);
she argued that it was unnecessary to do so because the A1 Statement already
implied that he was hit with the bottle and stabbed at the same time. In her view
this could only mean that “a wound like this has been inflicted by … not by a bottle
but by a broken bottle”. She added that this was her “ opinion”, rather than that the
complainant had clarified as much to her, which quite evidently flies in the face of

18 It is tempting to assume that Constable Burton had by the time of the trial seen the J88 report herself or that the
respondent’s legal representative would have brought to the fore the conflict between her recall that there were three

or four stitches and the entry in the report that a soft tissue injury was instead implicated.
19 Her colleague who had seen the complainant s hortly before to record his injuries said nothing about the wound
site being swollen.

him having supposedly told his mother that the appellant had , as a fact, stabbed
him.

[59] Asked why she had decided to arrest the appellant rather than issue a
warning to him to appear in court, she was adamant that it was the infliction of the
dangerous wound that set the matter apart and sealed his fate. She claimed that she
had had no discretion to warn him instead on such a charge. Instead, she
emphasized that she had to “ go to arrest him ”. She added as another reason the
fact that the purpose of the arrest was to bring him to court. She clarified that she
had no mandate in respect of a charge of Assault GBH to have just told the
appellant to go to court, neither authority to grant him bail. S he maintained that
she only had a “discretion where there is no wound that is dangerous”.

[60] As for the supposed threats made by the appellant in their presence, she was
confident that this came down to intimidation which is why, so she explained, he
was arrested for this but “ it was not put on the record .” This concession accords
with the fact that nowhere in any of the statements in the docket is it noted that the
appellant threatened the complainant. She volunteered that her partners who had
been present with her could vouch for the pleaded defence that the appellant
committed the offence of intimidation in their presence, but ostensibly neither of
the two officers were called to testify at the trial.20

[61] As for the appellant’s detention, she indicated tha t she had told him that he
could not be released “ on certain reasons” (She did not divulge what exactly she
had told him neither was she pressed further on the subject). She did not have a

20 Co-incidentally, on her version the complainant would also have witnessed as much, but the respondent did not
offer his corroboration at the trial.

conversation with his wife about the possibility of his being relea sed from custody,
although she was aware that the latter had indeed come to the police station. She
could not dispute that his wife had requested that her husband be released from
custody. She could not say with which of her colleagues these discussions m ay
have been held.

[62] Asked why she had not charged the appellant promptly after the arrest, she
explained that he was going to be charged the next day by other police officers and
indeed that it was time for her shift of members to be relieved. She could n ot
speak to the reason why he was not then in fact charged by any of the officers who
came on duty after she signed off. She readily conceded however that if he had
been charged, that the appellant could have appeared in court on the Monday
morning already, and would therefore not unnecessarily have been in custody the
whole day on Monday the 10th.

[63] Put to her that she took the decision to arrest the appellant too hastily and did
not apply her mind, or wait for the J88 medical report that later indicated that there
was only a soft tissue injury underneath the complainant’s eye, Constable Burton
retorted that the arrest was grounded on “ the facts that were there” (this relating to
the complaint itself) and the threat to the complainant in her presence that
contributed to her decision. She at least conceded however that if she had known
of the doctor’s opinion she would have merely warned the appellant to court.

[64] The respondent also adduced the testimony of one Constable Apollis. He
was responsible for charg ing the appellant on the morning of 11 April 2017 at
06h55. He did so in response to an entry in the docket by one Captain Zanto (his
immediate commander) noted in the investigation diary section on 10 April 2017

that he must interview the complainant and charge the suspect. No time is noted in
the docket opposite Captain Zanto’s entry. He was initially quite certain that he had
only received the docket on the day that the appellant was in fact charged.

[65] To the proposition put to him that the appellant sho uld have been taken to
court on the 10th already, he explained as follows:

“The case docket, what usually happens, the crime office used to operate on two shifts
but then they shifted us to one shift due to shortage of manpower. Captain Zanto was then
immediate commander whose duties was to peruse dockets before the dockets get given
to us to do the preliminary investigation on the case dockets. That was on a Monday...
Captain Zanto….was working Monday until Friday, 07h00 until 16h00…All case dockets
registered from 4 o’clock the previous Friday up until the Monday morning…gets given
to him…He peruses the dockets and sees what needs to be done…And writes instructions
on these case dockets saying what must be done... He only gets the chance to peruse these
dockets on Monday since he's not working weekends, which means weekends there is no
commander for us like in the crime office who attends to giving us instructions in the
court case dockets. He perused the dockets and then gave me the docket. This specifi c
docket was one of the dockets that he perused and gave the instructions that was
previously mentioned. My duties then thereafter was to go and get and go interview the
complainant and then also interview the said suspect in the case because we need to do
bail information as well as address verification.”

[66] Asked if he had gone to interview the complainant, he noted that there was
no entry in the dairy made to this effect but added that it was possible that he had
conducted a telephonic interview with him. To the question whether there was any
address verification made, he confirmed ultimately that this was done on the 11 th.
(Indeed, this is borne out by objective documentation in the docket).

[67] He readily conceded under cross examination that the responsibility of the
crime office to which he was assigned was to attend swiftly to the investigation of

crime office to which he was assigned was to attend swiftly to the investigation of
matters so that a suspect can appear in court. He maintained however that he would
still have had to carry out the checklist instructions of the commander even if

Constable Burton had co-incidentally recorded that the appellant had been arrested
at his home.21

[68] When put to him that he had made an entry on the 10 th already to say that he
had interviewe d the appellant as a suspect in the case who had given him an
address, he confirmed it as though he had already said so in his evidence in chief
(which he did not). He added that he had gone to verify his address on the 11th.

[69] Asked pertinently why the A ppellant had not been charged on the 10 th
already he replied that the investigation was “ ongoing” which entailed him still
having to go and verify his address which had been given to him during the
interview with the suspect. He acknowledged though that it was “doable” for him
to have clarified with constable Burton where she had arrested the appellant and
thus have satisfied himself as to his address, but he clarified that this was still an
investigation milestone resting on him that he was required to meet.22

[70] He added to his reasons for the delay in the appellant being charged the
problem of Captain Zanto being the only officer perusing the dockets and issuing
the instructions and having “no-one working…up (the dockets).”

[71] He claimed to be unaware of the fact that the appellant’s wife had called at
the police station asking for him to be released.


21 But for the fact t hat Constable Burton clocked off she would have been able to satisfy the commander both that
she had personally interviewed the appellant and that she knew where he lived. This belies the fact that there was
any “ongoing” investigation necessary at all.
22 See footnote 15.

[72] Whilst seemingly being prepared to concede that the appellant could have
gone to court on the 10 th already, he was adamant in asserting that this was only a
possibility if the investigation permitted it. He asserted that: “ If the investigation
has not been concluded…then the person doesn't get charged until it is concluded.”

[73] No other evidence was led by the respondent at the trial to allay the
appellant’s concern that he could have been released from custody earlier than the
Tuesday morning, assuming a lawful arrest in the first place.

The pleadings:

[74] The gist of the appellant’s case for contending that the arrest was wrongful
and unlawful was premised on th e basis that he did not commit an offence in the
presence of a peace officer; that there was no reasonable suspicion that he had
committed a Schedule 1 offence; that the arresting officer did not exercise any
discretion at all, alternatively, exercised her discretion in an improper manner; and
that the arresting officer failed to explain his constitutional rights to him.23

[75] The defendant admitted the arrest without a warrant but pleaded that the
arrest was lawful “in terms of both section 40 (1) (a) and se ction 40 (1) (b) of the
Criminal Procedure Act, in that the appellant committed an offence of intimidation
in the presence of the arresting officer and was also reasonably suspected of
having committed an offence of Assault wherein a dangerous wound was in flicted
on the complainant.”


23 A further ground that the arresting officer failed to comply with section (4) and (8) of the Police Standing Order
G341 was also pleaded but evidently not engaged with upon trial.

[76] Any improper exercise of the arresting officer’s discretion was disavowed.

[77] The further allegation that the appellant’s family members attended the
Algoa Park police station and requested his released from custody but that the
police members on duty refused to release him, was met by a general plea that his
detention was lawful in terms of sections 39 and 50 of the CPA.

[78] The appellant’s particulars of cla im pertinently assert that he was detained
arbitrarily and without just cause at the Algoa Police Station. In this respect the
allegations read as follows:

“12. The detention and incarceration of Plaintiff was wrongful, unlawful and
completely unjustified, in that, inter alia:
12.1 the arresting officer, as well as the other police officers at the Algoa Park police
station, failed to apply their minds, in respect of the Plaintiff’s detention and the
circumstances relating thereto;
12.2 there were no reasonable and/or objective grounds justifying Plaintiff’s
subsequent detention;
12.3 he was wrongfully and unlawfully arrested on a Schedule 7 offence;
12.4 he was not released after his family members’ request; and
12.5 notwithstanding Plaintiff’s arrest, without a warrant, none of the Defendant’s
employees took any or reasonable steps to release Plaintiff, as soon as reasonably
possible, even though no reasonable grou nds or sound reasons for his continued
detention had existed.”

[79] Apart from pleading that the arrest and detention had assailed his
constitutional rights to dignity, freedom, and freedom of movement, the appellant
asserted that his rights in terms of sectio n 35 (1) (a) and (b) and 35 (2) (e) of the
Constitution had been infringed.

[80] The respondent relied on the provisions of sections 39 and 50 of the CPA to
justify the appellant’s initial and continuing detention and claimed contrariwise
that he “ was immediately brought to a police station and was brought before a
lower court within 48 hours”.

The judgment of the trial court:

[81] The judgement appealed from, although supplemented by the magistrate
twice, is extremely pithy.

[82] In his primary judgment, whi lst recognizing that he could find “ nothing
negative” that he could attribute to the witnesses on either side, he yet accepted the
respondent’s version as the prevailing one. This is evident from his comment in the
judgement that: “Considering the issues raised it seems Defendant has managed to
put clear issue before court hence the version of the defendant is accepted as the
manner the event happened.”

[83] What the issues in dispute were (or what he found to be “ clear”), are not
articulated in his judgment.

[84] There is no mention in the first judgement of the supposed fact of the
intimidation (as a fact found proven) featuring as a reason why the Magistrate
considered that the arresting officer was justified in arresting and detaining the
appellant. But in furt her reasons provided24 for his finding that Constable Burton

24 These additional reasons were provided pursuant to the provisions of Rule 51 (8)(a) following the filing of the
appellant’s Notice of Appeal. The reasons ought to have spoken to the challenges framed in the Notice of Appeal.

was justified in arresting the appellant, he for the first time alluded to the supposed
fact that the appellant had committed an offence of intimidation in the presence of
the police, revealing h is bias against the appellant’s version in this respect that the
complainant had not even been present at the time of his arrest inside his home, as
well as his denial that he had threatened him at all.

[85] The only focus in the magistrate’s first judgment wa s on the issue of the
wound which he went on to find “qualified” to be “a dangerous wound”. He added
in this respect: “ Also the weapon used has a potential inflicting a serious wound.
The wound was too delicate.” Nothing was said about the controversy surrounding
the actual weapon, the reliability of Constable Burton’s observations, or the other
evidence detracting from the suggestion that she could have formed a reasonable
suspicion to have arrested the appellant on a Schedule 1 offence.

[86] When asked to sh ow the facts found proven and to provide reasons for his
judgment,25 the magistrate merely stated his conclusion that the information that
had been presented to Constable Burton and upon which she exercised her
discretion qualified to be within the require ments stated in Mabona & Others v
Minister of Law and Order & Others.26

[87] Presumably his further comment that the injury that had been sustained by
the complainant “… was a real dangerous wound and also next to an eye. That
injury was on a delicate part of the body complainant could have lost the entire
eye” was added to indicate why he was inclined of the view that Constable Burton
had reasonably entertained the suspicion that the assault complained of was one

25 These were reasons in terms of Rule 51 (1)(a) of the Magistrate’s Court Rules.
26 1988 (2) SA 654 (SE). The judgment emphasizes the test of whether a suspicion is reasonably entertained within
the meaning of section 40 (1)(a) of the CPA.

involving the infliction of a dangerous wound, although the impression is given
that it was up to the court itself as an isolated exercise to determine if the injury
“was a real dangerous wound”.

[88] In this respect he referenced the judgment of the Supreme Court of Appeal in
the matter of Mxolisi Mananga and others v Minister of Police (“Mananga”), 27
without exactly saying why, except to state that “ the issue of a dangerous wound
has been further confirmed in the judgment”.28

[89] Ultimately, the magistrate dealt with the evidence concerning both statutory
defences (in the process conflating the two defence grounds somewhat) as follows:
“Plaintiff uttered the word “ I have not finish (ed) with you” to (the complainant) in the
presence of Burton…If a person uttered such words I do not think at any time it can be
expected that he will give the other person a pat on the back. Also in view of the fact that
Plaintiff has already inflicted an injury on this (complainant). A strong possibility was
that plaintiff will continue adding injuries on the victim. It (is) so that assault with intent
to do grievous bodily harm is not a Schedule 1 offence. The legislature decided to put the
assault with in the ambit of Schedule 1 by adding “ When a dangerous wound is inflicted”
therefore Constable Burton viewed the wound as a dangerous wound and therefore the
offence qualifies to be within Schedule 1. This was a cut wound on the face and had to be
sutured, Therefore I have to accept that the wound was a dangerous wound as required by
schedule 1.
I also align myself with the comments of the Learned Judge of Appeal Justice Eksteen in
the case of Mxolisi Mananga and Others v Minister of Police case number 342/ 2020
[2021] ZASCA 71 ( 04 June 2021 ) in paragraph 16 where he said “It is not required of a
police officer to examine the wound of a victim as a doctor would, nor would that be
appropriate. He is merely required to have regard to the facts and circumstances at his

appropriate. He is merely required to have regard to the facts and circumstances at his

27 Case No. 342/2020 [2021] ZASCA 71 (4 June 2021).
28 Mananga was delivered three months after the magistrate’s primary judgment.

disposal and where reasonably possible to satisfy himself of the merit thereof. If, on a
consideration thereof there are reasonable grounds to suspect that a dangerous wound has
been inflicted he is entitled to arrest the suspect without first obtaining a warrant.” (sic)

The issues upon appeal:
[90] The main issue which arises on appeal is whether the court was correct in
preferring the respondent’s version of the events as the premise for his application
of the law. This would relate principally to the questions both whether the appellant
intimidated the complainant and also to the factual nuances relating to the question
whether Constable Burton reasonably entertained a suspicion that the appellant had
committed a Schedule 1 offence.

[91] The Magistrate’s reasons unfortunately do not indicate how he got to the
conclusion that the respondent’s version was to be preferred. Settling the obvious
disputes of fact in this matter was an essential preliminary exercise before applying
the law to determine whether the respondent’s employees were justified in
arresting the appellant. Without any real evaluation of the evidence, we are
obliged to step into the breach in order to do justice to the case.

[92] A further challenge on appeal is against the court’s conclusion in the final,
unintelligible, throwaway statemen t that: “ Therefore Plaintiff’ s claim has to be
dismissed with costs on the records it is clear that Plaintiff was brought before
court within the 48 hours stipulated in the Criminal Procedure Act”.

[93] In this regard it appears that the Magistrate failed to engage with the pleaded
basis for the appellant’s claim that his detention, (both inherent in the arrest and

thereafter) was unlawful for the reasons indicated in the appellant’s particulars of
claim. The manner in which the appellant’s case was framed triggered the
application of the onus on the respondent to prove that the appellant’s detention
was not unlawful in the context of the specific reasons relied upon by the appellant
in his particulars of claim. It required the court below to have applied its mind to
these allegations and the evidence adduced, or not adduced, in this respect.

[94] It certainly did not follow either, upon the finding by the magistrate that the
arrest itself was lawful, that the continuing detention, alleged to have been
unlawful for the particular reasons indicated, should automatically have escaped
judicial scrutiny.29 Whilst the provisions of section 39 (3) of the CPA, on which the
respondent relied, asserts that if the arrest is lawful the ensuing detention follows
lawfully, this section deals only with the general legal consequences of an arrest. It
follows axiomatically however that any subsequent detention which is not
sanctioned by the law cannot be legalized by section 39 (3). Of course, it is for a
plaintiff to allege and prove why he or she contends that the detention is not so
sanctioned thereby rendering it unlawful. 30 In this instance the appellant said so,
but the magistrate below ignored these features of his case.

[95] The Constitutional Court in De Klerk v Minister of Police31 especially brings
to the fore the complex and nuanced features of a delictual claim for unlawful
arrest and detention versus a possibly different framed delict based upon an

29 Given the drastic powers of arrest, and the implication of the obvious infringement thereby of arrestee’s
constitutional rights of personal liberty and dignity thereby, by necessary implication entailing detention, a court is
expected to carefully scrutinize in each case whether the infringement of these rights is legally in order. See Minister

of Law and Order v Dempsey 1988 (3) SA 19 (A) at 38 C.
30 Minister of Safety and security v Slabbert [2009] ZASCA 163 at [21]-[22].
31 (CCT 95/18) [2019] ZACC 32; 2019 (12) BCLR 1425 (CC); 2020 (1) SACR 1 (CC); 2021 (4) SA 585 (CC) (22
August 2019) at [19] – [20].

omission by a police officer that causes the harm suffered. It was certainly not
argued before us that in this instance anything other the claimed unlawful arrest
itself conduced to the harm, but often the plaintiff’s pleaded case in similar actions
is not examined with any p articular focus and this was one of those judgments.
Magistrates are required to be sensitive to evolving jurisprudence and the
obligation on the courts to carefully scrutinize claims of the breach of
constitutional rights of personal liberty.

[96] We point o ut finally, on the issue of the Magistrate’s lack in producing a
helpful judgment, that even for the moment assuming that he was correct in finding
that the arrest was lawful, there was no engagement either with the issue of the
arresting officer’s discret ion to arrest. It is a trite principle that once the
jurisdictional facts for an arrest are present, the discretion whether or not to arrest
arises.32

Resolving the disputes of fact:

[97] In applying the technique generally employed by the courts in resolvi ng
factual disputes in civil trials in the well -known matters of National Employees
General Insurance v Jagers 33 and Stellenbosch Farmers Winery Group Ltd &
Another v Martell and CIE South African & Others 34 it is our conclusion that
Constable Burton was not a credible or reliable witness and that her version of the
events concerning the supposed basis for the exercise of her suspicion are
questionable and improbable.


32 Minister of Safety and Security v Sekhoto & Another 2011 (5) 367 (SCA) at [25].
33 1984 (4) SA 437 E at 440D – 441A.
34 2003 (1) SA 11 (SCA) at par 5.

[98] The first conflict concerns the appellant supposedly having intimidated the
complainant both at his home the night before his arrest and in the presence of the
police and the complainant shortly before he was taken away by them from his
home on the 9th.

[99] The suggestion that the appellant was not charged “ on the record ” for
intimidation is sim ply absurd and inherently improbable. The premise that a
serious offence had been committed in the presence of the arresting officer and her
two colleagues (who could have vouched for the supposed events taking place
before their very eyes but did not) is entirely inconsistent with the objective
documentation in the police docket. Most notably there is an absence of any
statement by the complainant to the effect that the appellant committed such
offence, not just at the appellant’s home, but also at his ho use on the night before
after the assault incident.

[100] It is further curious that the arresting officer would bother to interview the
complainant’s mother shortly after the appellant’s arrest concerning such a threat
and what he reported to her in this respect, but not take down a statement from her,
especially regarding the narrative that the appellant had pointedly said that he was
“not done with him”.

[101] The same applies to the seemingly contrived second issue that the
complainant and his mother reported that the appellant had stabbed him as opposed
to merely having hit him with an empty bottle.

[102] Although Constable Burton wrote down in the investigation diary after the
arrest that the complainant had supposedly alleged that the appellant stabbed him,

it does not make it true, or likely true. Indeed, such a narrative is entirely
inconsistent with the complainant’s statement. Bearing in mind the assertion put
to the appellant during cross examination that a “ bottle neck” was the instrument
that caused t he complainant’s injury and her convoluted explanation for why she
imagined a stabbing, her account can hardly be accepted as reliable where this
differs from what was officially recorded elsewhere in the docket.

[103] What is also notably absent from the recor d is any recording that a
dangerous wound had been inflicted. If the complainant was minded to elevate the
original complaint of Assault GBH to one more serious, especially on the basis of a
supposed stabbing, then one would plausibly have expected an amp lification by
him especially, and medical corroboration that seems to have been available at the
time. If Warrant Officer Willemse had come up short in describing the injury or
the charge, one would also have expected some account from him in the docket
that he had underestimated the gravity of the incident and the harm inflicted. The
recorded account, for example, does not say that the wound was open, neither that
it was deep, nor that it involved a stabbing with broken glass.

[104] We have in our analysis of the evidence above highlighted inconsistencies
between versions put to the appellant and Constable Burton’s in -chief evidence on
the disputed aspects. There were also several indications in her testimony that she
embellished her case as the shoe began to pinch. For example, her adding that the
complainant expressed in the interview with her that he did not feel safe and that
both the appellant and his wife had also threatened the Police that they are going to
take legal action against them. (Later she ad justed her version to suggest that it
was only an assumption on her part that they would sue, based on the fact that he
said that he would call his attorneys.)

[105] She was further an evasive and argumentative witness and resorted to adding
her own flourishes to the scenarios at hand. An example is her adamant belief that
the appellant having purportedly said he was “ done with” the complainant meant
unequivocally that he was going to hit or assault him if he did not give him his
money. Her explanati on given in this respect was quite specious without any
intimation by the complainant himself that any threat at all was made to him.

[106] This leaves the unfortunate impression of a contrived defence (with
reference to the respondent’s defence relied upon in pursuance of the provisions of
section 40 (1) (a) of the CPA), and an irresponsible exaggeration of the assault
(with reference to the provisions of section 40 (1) (b) of the CPA).

[107] We are satisfied that Constable Burton’s evidence is unreliable and fall s to
be rejected as false where it in in conflict with that of the appellant and the
objective documentary evidence (save her own contrived entry made after the fact
of the arrest in the investigation diary that the complainant had alleged an actual
stabbing).

[108] In the circumstances the pleaded statutory justification for the appellant’s
arrest on the contrived basis that the appellant committed the offence of
intimidation in the presence of Constable Burton cannot be sustained. The further
premise that sh e satisfied herself on the merits that a dangerous wound had been
inflicted cannot be reliably accepted.

The issue concerning whether the appellant was informed of his rights:

[109] On the issue of whether the appellant was informed of his constitutional
rights, it is in our view improbable that he only signed the SAP 14A on the
Tuesday morning. Indeed, he was not certain if this was the case, but the
document itself reflects that he signed it on the 9th at 17h15 which is also consistent
with corresponding entries in the SAP 14A register and occurrence book, noting at
least the fact that according to the police, his constitutional right were administered
to him at the Algoa Park police station.

[110] On the question whether he was informed of h is rights at home, Constable
Burton said herself he was not because the appellant told her that he knew his
rights.

The statutory defence in terms of section 40 (1)(b) of the CPA:

[111] Concerning the defence that the appellant’s arrest was justified on account of
Constable Burton having satisfied herself that he had committed an assault, where
a dangerous wound was inflicted, section 40(1)(b) of the CPA provides as follows:

“1. A peace officer may without warrant arrest any person
(a) …
(b) whom he reasonabl y suspects of having committed an offence referred to in
schedule 1 …”

[112] The offence of assault with intent to do grievous bodily harm of which the
appellant was charged, is not listed in Schedule 1 of the CPA as an offence for
which an arrest without a warrant may be justified by section 40 (1)(b) of the CPA,

but such an assau lt may be brought within the ambit of Schedule 1 of the CPA
when a “dangerous wound” has been inflicted.35

[113] The respondent’s plea relied on in this instance would have attracted the
onus to prove the justification pleaded, that is the lawfulness of the arrest in
accordance with the second statutory ground relied upon, on a balance of
probabilities.

[114] As indicated in Mananga the section requires the respondent to have
established, on the requisite standard of proof, that the arresting officer held the
suspicion, on reasonable grounds, that such a wound had been inflicted.36 It would
not have been necessary for the respondent to have established as a fact that the
inflicted wound was dangerous. 37 Rather, as the court reminds one in Mananga,
“suspicion” implies an absence of certainty or adequate proof. Thus, a suspicion
might be reasonable even if there is insufficient evidence for a prima facie case
against the arrestee.38

[115] In order to discharge this onus, the respondent was required to establish: (i)
that Constable Burton is a peace officer; (ii) that she in fact entertained a suspicion;
(iii) that the suspicion which she held was that the appellant had committed an
offence which is referred to in Schedule 1 (in this case, an assault when a

35 At the time of the incident the wording of Schedule 1 may have been different, although only marginally so. The
original text seems to implicate an “ assault, when a dangerous wound is inflicted ” whereas the latest version rea ds
“assault, involving the infliction of a dangerous wound”.
36 Supra at [6].
37 R v Jones 1952 (1) SA 327 (E) at 332
38 Duncan v The Minister of Law and Order 1986 (2) SA 805 (A) at 819 I – 820 B.

dangerous woun d had been inflicted); and (iv) that the suspicion rested upon
reasonable grounds.39

[116] Whether she had reasonable grounds for the belief must be approached
objectively.40

[117] Constable Burton read the complainant’s founding statement and the injury
statement prepared by Warrant Officer Willemse. She claims to have established in
her subsequent interview with him the fact that he conveyed that the wound was
“deep”, a premise we reject. The suggestion that the wound was inflicted with a
broken bottle neck was Constable Burton’s own illogical assumption, no doubt to
give a plausible context to the notion that she was justified in arresting the
appellant for an assault when a dangerous wound was inflicted. There is nothing in
this either. We are not prepared to accept her testimony that there were four or five
stitches over the breadth of the + -3cm wound without the corroboration of the J88
medical report. Thus, the objective evidence establishes that the officer who
received the First Information of the Crime was satisfied to record the complaint as
one limited to an “ Assault GBH”. His injury statement does not reflect an open
would, or cut, although the annotation “ stitched already ” leaves the question
begging. There is an absence of any of the atmosphere Co nstable Burton purported
to bring to the description of how the wound was inflicted. We reject the narrative
of the intimidation and stabbing. There is, albeit anomalous, the situation that
there is no J88 medical report although the complaint had alread y been treated for
his injury. The report (which only came to hand later), so all the parties concede,

39 These jurisdictional requirements are trite. Duncan, Supra, at 818 H – J and Sekhoto, Supra, at paras 6 and 28.
40 R v Van Heerden 1958 (3) SA 150 (T) at 152 D -E. The concept of reasonable grounds is to be interpreted
objectively, and the grounds of suspicion must be those which would induce a reasonable man to ha ve the suspicion.

This dictum was relied on by the Appellate Division in Wiesner v Molomo 1983 (3) SA 151 (A) at 159 B.

suggests that it records a soft tissue injury which appears to us to be consistent with
what Warrant Officer Willemse noted in his injury statement and what the A1
Statement provides. Constable Burton states that she did not have the J88 medical
report at her disposal at the time she set out to arrest the appellant. Such an
impediment would not absolve a reasonable arresting officer from making proper
enquiries when there is room for doubt that the offence is a Schedule 1 one,
justifying an arrest without a warrant on the sheer basis of the seriousness of the
offence. As indicated in Mabona, a reasonable arresting officer would further
remind herself that section 40 (1) (b) of the CPA authorizes drastic police action
and an arrest on the strength of a suspicion without the need to obtain a warrant,
something which would otherwise be an invasion of private rights and personal
liberty.

[118] There was at the st age Constable Burton purported to arrest the appellant no
objective entry in the police docket recording a stabbing or the infliction of the
wound with an open bottle neck. (For the first time after the arrest, and without
any supplementation by the comp lainant, she writes in the investigation docket,
and nowhere else, that the appellant stabbed the complainant, a premise for the
arrest that we reject as contrived.)

[119] Absent the atmosphere of the supposed intimidation, as a premise, which we
also reject, there is no other reason to suppose that the manner in which the wound
came to be sustained would engender the belief in Constable Burton that the
wound was a dangerous one.

[120] The only factor of relevance is that the wound is relatively close to the
complainant’s eye, but the complainant never complained of any fear that his eye

was at risk of being injured. In fact, it appears that Mr. Sweleni was also hit with
the intact empty bottle in the tavern during the scuffle, but he was not concerned to
lay a criminal complaint against the appellant as a result.

[121] It is evident that the concepts of “ grievous bodily harm ” and “ dangerous
wound” are not necessarily synonymous as was pointed out in Bobbert v Minister
of Law and Order, 41 thus it is not enough to assume that a suspicion would be
reasonable based on the mere fact that a suspect is charged with the offence of
Assault GBH.

[122] In R v Jo nes42 the court settled upon a meaning of “ dangerous wound” as
follows:

“It seems to me that by a dangerous wound is meant one which itself is likely to endanger
life or the use of a limb or organ. The officer effecting the arrest has only to have
reasonable grounds for suspecting that such a wound has been inflicted.”

[123] In Mananga43 the court demonstrated the application of the test whether a
suspicion was reasonably entertained by the arresting officer in that unique fact set
as follows:

“[13] Nevertheless, Warrant Officer Qunta testified that he first acquainted himself with
the contents of the docket. It related to a charge of Assault GBH and it identified the
appellants, amongst others, as the perpetrators. He then proceeded to Ncora to interview
the complainant because he appreciated that he could not arrest the appellants without an
investigation to verify the information contained in the docket. Upon seeing the

41 1990 (1) SACR 404 (C) at 4o9 E – H.
42 Supra at 332 E.
43 Supra.

complainant, he perceived that he had been ‘severely injured’ and noted the fractured arm
and the injuries to his head. Warrant Officer Qunta did not describe the injuries which he
observed in any finer detail, but, as I have said, the complainant testified that he had
sustained five lacerations to his scalp, which had been sutured, and that hi s wrist had
been fractured and immobilised in a plaster cast. These are the injuries which Warrant
Officer Qunta observed.
[14] The complainant testified that, following the assault, he bled profusely and was
‘dehydrated’, to the extent that he was unabl e to speak, and that he was admitted to
hospital for approximately four days. It is not apparent from the evidence of Warrant
Officer Qunta that the content of the docket revealed the extent of the blood loss
sustained. However, in explaining the reason fo r the arrest, Warrant Officer Qunta
testified that he decided to arrest the appellants as a case of assault had been opened and
that the complainant had been detained in hospital for a period of four days. He
considered it imperative to look for the assailants by virtue of the ‘nature of his injuries’.”

[124] In de Klerk, the Minister did not rely on an assault where a dangerous wound
had been inflicted as justification for the arrest but the concept of a dangerous
wound came to the fore in that matter. De Klerk had confronted the complainant in
his office about money ow ed by him and a scuffle ensued. In the course of the
scuffle, de Klerk grabbed the complainant and pushed him against the wall causing
him to bump into the frame of a wall picture. The glass broke and cut the
complainant’s back. The cut was sutured and a m edical report was issued. The
complainant laid a charge of assault and de Klerk was arrested. De Klerk sued for
damages for wrongful arrest. No medical evidence was tendered, the report was
entirely illegible, and, because no reliance had been placed on a “dangerous

entirely illegible, and, because no reliance had been placed on a “dangerous
wound” in the justification pleaded, the nature of the injury was not canvassed in
evidence. No reason was demonstrated for the arresting officer to have suspected
that the wound may have been dangerous, in the sense of endangering life or limb.

[125] In the present matter, the notion of dangerous wound was exaggerated by
Constable Burton. The complainant did not suggest in his founding statement that
the wound had been incurred in any way other than by being hit with an empty,
intact, bottle. A reasonable person in Constable Burton’s position possessed of this
limited narrative would not have considered that there were good and sufficient
grounds for suspecting that the appellant was guilty of an assault involving the
infliction of a dangerous wound. As indicated above, we reject the embellishment
of the wound by her that she held out for in her testimony as well as the contrived
atmosphere she sought to add to the whole debacle to give colour to the statutory
defences relied upon by the respondent in the plea.

[126] As was stated in Mabona, the reasonable man (being informed how the
wound was occasioned and seeing what she objectively must have seen), if
somehow minded to imagine that the wound might instead have been inflicted by a
stabbing, would have an alyzed and assessed the quality of the information at her
disposal critically with regard to what the doctor’s opinion was before deciding to
arrest without a warrant.

[127] Although the court in Mananga cautions against an expectation that a police
officer exa mining the wounds of a victim would do so as a doctor would, the
expectation remans that a court will consider that a reasonable person will have
regard to the facts and circumstances at his disposal and, where reasonably
possible, satisfy himself of the m erits thereof. 44 Here there was no such
consideration. Indeed, Constable Burton arrested the appellant even before she had
interviewed the complainant’s mother or Mr. Sweleni. She also missed a vital

44 Supra at par [16].

opportunity to have had regard to the doctor’s report of the complainant’s injuries
which, as it transpired after the fact, confirmed a soft tissue injury instead.

[128] In our view the magistrate erred in his determination that the injury had to
“qualify” as a dangerous wound as opposed to actually applying the Mabona test to
the facts.

[129] In the result we find that the arrest was unlawful.

[130] It is therefore unnecessary to consider the issue of the exercise of the
arresting officer’s discretion.

The claimed unlawful detention:

[131] It is also unnecessary in our view to consider this aspect (as a discrete issue)
given that the pleadings do not suggest a separate cause of action other than the
claim of arrest and detention. The pleaded case is that the unlawful arrest, and the
detention inherent therein and continuing, aggravated by the fact that the appellant
only appeared in court on the Tuesday, was in fact the cause of the harm suffered
by the appellant.

[132] The “culpable conduct”, as it were, relied upon by the appellant (which we
consider made the deprivation of liberty all the more egregious) was clearly set out
in his particulars of claim and about the features of this part of his case there is not
much in dispute.

[133] The respondent conceded in the plea, or rather did not pertinently deny the
allegation, that the ap pellant’s wife asked for him to be released from custody.
Further and in any event Constable Appolis was under the misapprehension, from
his perspective, that the Police could not release him from custody before his first
court appearance because of the nature of the charge against him.

[134] At the time of the incident section 59A (1) of the CPA however provided as
follows in this respect:

“59A. Attorney-General may authorise release on bail

(1) An Attorney-General or a prosecutor authorised thereto in writing by the
Attorney-General concerned, may, in respect of the offences referred to in
Schedule 7 and in consultation with the police official charged with the
investigation, authorise the release of an accused on bail:”45

[135] Schedule 7 offences, listed f or purposes of section 59A of the CPA at the
time included: “Assault, – involving the infliction of grievous bodily harm”.

[136] Constable Appolis confirmed that as far as he was concerned that the
appellant could not have expected to be released by the Police on bail. He was,
however, evidently mistaken in his appreciation of the situation regarding the
appellant’s right to be released on this basis on the charge a indicated on the
docket.

[137] He himself offered that the police usually call a standby prosecutor w ho
would come in to peruse the docket, thereby conceding that although it was not his

45 The current proviso was only added later.

prerogative to release him, such a procedure may well have availed the appellant
for an immediate release on bail if his wife’s request had been appropriately
responded to. The objective of informing a person arrested of his right to bail is
exactly so that that right may be exercised even before the first appearance.46

[138] It appears to be the case, however, that the real reason for the appellant’s late
release on warning from court related to the fact that Constable Appolis was
adamant that he could not charge him until his investigation milestones had been
met and because the manpower challenges at the police station meant that these
processes, that set the milestones via a senior officer, were in themselves an
unreasonable impediment and an affront to his right in terms of section 35 (1)(d)
and (e) of the Constitution to be brought before a court as soon as reasonably
possible. What is dictated by sections 50 (1) (b) and (c) of the CPA and the
Constitution is expedition relative to the circumstances.47

[139] Constable Appolis conceded that the appellant could have been charged
earlier. Although he conducted what he thought was the minimum standard of
investigation before the appellant could be released from custody by the court
(address verification and interview with the complainant), he, in fact, did not
charge the appellant until the morning of the 11th and therein too lies the rub.

[140] There is no legal requirement for charging a suspect but in our view, it
would follow upon the premise that Constable Burton presented for the exercise of
her purported discretion to arrest that she had in mind that the appellant should be
brought to justice on the charge o f “Assault GBH” in respect of which she gave

46 Syce and Another v Minister of Police [2024] ZASCA 30 (27 March 2024) at [44] read with footnote 18 and the
cases cited therein.
47 Mashilo and Another v Prinsloo [2012] ZASCA 146 at [16].

him his rights at the police station at 17h15 on the 9 th. She had already verified
with the complainant, his mother and a witness from the tavern that he had
purportedly made himself guilty of such an offence . She had arrested him from his
own home which the complainant had pointed out to her. She was adamant that the
appellant should have been charged and went so far as to say that she would have
done so herself but for the fact that her shift had come to an end.

[141] The premise for the indirect judicial review of the Police’s conduct in
purportedly unreasonably precluding the possibility of the appellants’ earlier
release on bail is the peremptory provision in section 50 (1) of the CPA that
arrestees are to be brought before a lower court “ as soon as reasonably possible ”,
but not later than 48 hours after the arrest. The purpose for this imperative must be
read together with section 35 (1)(d) and (e) of the Constitution which provides that
“(e)veryone who is ar rested for allegedly committing an offence has the right …to
be brought before a court as soon as reasonably possible, but not later than …48
hours after the arrest…and…to be released from detention if the interests of justice
permit, subject to reasonable conditions”.

[142] The right to be charged as soon as possible is among the implied rights of a
suspect. So, for example, the gauntlet is laid down by section 50 (1) of the CPA to
either charge or release a suspect so that his rights as a detainee can be
meaningfully exercised. It is of no use to inform him of his right to apply for bail if
there remains a likelihood that he will not be charged at all, but if he is charged and
can be released on police bail forthwith, there is every imperative to move the
process along. Put differently, while a suspect is routinely informed of his right to
apply for bail at the point where he is given his constitutional rights, of what value

is this legal imperative if he cannot exercise that right because he has not been
charged?

[143] It appears to us that the appellant fell through the proverbial cracks of staff
handovers and best practices to get around a lack of manpower, but that should not
have been the case. It rings hollow to suggest that the respondent can perfunctorily
rely on such factors as a reasonable excuse for infringing the appellant’s liberty
rights.

[144] In our view the evidence establishes overwhelmingly that the respondent
failed to justify his “ continued” and unnecessary detention as a result of the
failures on the part to have made it possible for the appellant to have been released
immediately after he was charged. There is no question that these failures resulted
in the appellant’s extended detention and rendered the deprivation of his liberty,
inherent in the unlawful arrest, all the more egregious.48

Quantum:

[145] We do not perceive that there is any purpose in remitting this matter to the
trial court to consider the question of the extent of the appellant’s damages. We
have all the necessary information to consider this aspect and are in as good a
position as the trial court to do so. In any event Ms. Ntsepe, who appeared for the
respondent, indicated at the hearing that the issue of the quantum was not
contentious, neither the issue of interest on the damages award nor costs, at least
such costs as pertain to the trial in the magistrate’s court. The appellant claimed

48De Klerk v Minister of Police [2019] ZACC 32; 2020 (1) SACR (CC)

R200 000.00 as damages but Ms. Du Toit conservatively put the appellant’s claim
at R120 000.00 based on comparative awards.

[146] The appellant’s was 44 years when he was arrested and detained. He is a
longstanding employee of 19 years at VW South Africa in its production section.
He is a family man.

[147] He was detained for 40 hours. He gave evidence that the conditions of the
detention cell were unhygienic and filthy. He could not sleep because of the stench,
and he cried because he had never been arrested before, this being his first
experience of being detained.

[148] We have already alluded to the features that render the deprivation of the
appellant’s liberty more egregious and lacking in consideration for his dignity.

Costs:

[149] The final issue concerns the scale of the costs of the application for
reinstatement and the appeal itself. We see no reason why the scale in the related
application for reinstatement should not be on the same scale that Ms. Du Toit
suggested was appropriate in respect of the appeal, namely scale C.

Order:

[150] The following order is made:

(1) The application for the reinstatement of the appeal is granted.

(2) The appellant’s attorneys are to pay the respondent’s party and party
costs of opposing the application for reinstatement, on Scale C.
(3) The appeal is upheld.
(4) The finding by the Magistrate that the appellant’s action is dismissed
is set aside and substituted with the following order:
“(i) The arrest and detention of the plaintiff is d eclared to be
unlawful.
(ii) the defendant is ordered to pay damages to the plaintiff in the
amount of R120 000.00, plus interest thereon at the legal rate,
calculated from the date of issue of summons to date of
payment.
(iv) the defendant is liable for t he costs of the action on a party and
party scale, such costs to include the costs of counsel which is
awarded at three times the court’s tariff subject to the discretion
of the Taxing Master/Mistress.”
4. The respondent is liable for the costs of the appeal, payable on Scale C.


_________________
B HARTLE
JUDGE OF THE HIGH COURT

___________________
V V SANGONI
ACTING JUDGE OF THE HIGH COURT
DATE OF APPEAL : 25 April 2025
DATE OF JUDGMENT : 28 August 2025


Appearances:

For the Appellants: Ms. M Du Toit instructed by Carol Geswint Attorneys c/o Dullabh & Co,
Makhanda (Mr. Dullabh).

For the Respondents: Ms. N L Ntsepe instructed by the State Attorney, Gqeberha (ref.
14/1301/2017).