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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 687/2021
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED.
DATE: 22/10/2025
SIGNATURE:
In the matter between:
SEEMA MOHALE Plaintiff
And
MINISTER OF POLICE Defendant
Delivered: This judgment is handed down electronically by circulation to the parties
through their legal representatives’ email addresses. The date for the hand -down is
deemed to be 22 OCTOBER 2025.
JUDGMENT
NGCANGCA AJ
INTRODUCTION
[1] The Court is called upon to Adjudicate on a Civil claim for damages,
instituted by the Plaintiff. The Plaintiff based his claim for damages he
suffered due to his Unlawful arrest and Detention. Which was carried out by
the Defendant or his employees, during the scope of their duties.
[2] The Plaintiff is at such claiming damages for an amount of R1.5 Million
Rands for the Damages he suffered. The first aspect will be for the Court to
determine if the Arrest and subsequent Detention was Lawful and Justified
as the Defendant contend that.
BACKGROUND
[3] The Plaintiff in his Summons alledges that on the 16 TH December 2018, at
Bochum he was unlawfully arrested by the South African Police members
unlawfully and detained for a period of 1 month until his release on the 16
January 2019 by the Court after a bail application.
[4] The Defendant in it’s Plea contend that, they arrested the Plaintiff after a
charge of Rape was opened against the Plaintiff by the Victim who is a 13
years old Girl and her Mother. Both the Victim and the Mother made
statements to that effect. At such the Defendant contend that, the arres t of the
Plaintiff was Lawful and his subsequent resultant Detention.
ISSUES // FACTS IN DISPUTE
[5] Based on the brief background, from the Plaintiff Summons and the
Defendant Plea. And cardinal aspects laid down by both Parties in their
evidence, the Cou rt has to adjudicate in this matter, determine if the Arrest
and Detention was Unlawful.
[6] The Defendant started to tender evidence and called the Police officer who
effected the Arrest of the Plaintiff. The witness name was Winnie Manamela,
an investigating officer with 23 years’ experience as a member of the South
African Police.
[7] She informed the Court that, she was working on Rape, Domestic Violence
and Child protection Unit at Seshego SAPS. On the 17th December 2018 she
was allocated the docket by her commander wherein the complainant was
M[...] M[...] , who was an adult female and also a mother of the victim M[...]2
M[...] a 13 years old girl.
[8] A charge of Rape was opened against the Plaintiff. Statements of both the
complainant and the victi m were in the docket. She interviewed both the
complainant and the victim, the victim knew the Plaintiff. The victim, the
mother and herself they all travelled to Desmond Park and being directed by
the victim. The victim lead them to the Plaintiff residenc e and pointed him out
being the person who raped her.
[9] Having introduced herself as a Police Officer, and informing the Plaintiff the
purpose of her visit. She informed the Plaintiff that, he is being arrested for
Rape he had committed on the victim and also explained her rights as an
arrested person.
[10] The arrest was conducted without a warrant of arrest, she testified that she
effected it in terms of Section 49 of the Criminal Procedure Act , which
permit her to arrest without a warrant. The witness further testified that, she
was diligent to ensure that Plaintiff appeared within 48 hours in Court.
[11] Plaintiff appeared on the 19 TH December 2018, Plaintiff case was postponed
several times for bail application purposes and in a month time he was
granted bail. After several Court attendances, ch arges were withdrawn on
the 28TH August 2019.
[12] The witness testified that, she evaluated statements of the victim and her
mother as complainant and convinced herself that the offence of Rape was
indeed committed. She felt that, arrest which she effected was justified,
reasonable and Lawful.
[13] At all material times, the Defendant was being subjected to cross
examination after her evidence in Chief.
[14] The Plaintiff, himself testified in his quest to demonstrate that he was
arrested without a just cause and unlawfully. His testimony was very brief, he
said that he was surprised by the Defendant being at his place to arrest him
for a charge of Rape he did not commit and knows nothing about.
[15] Plaintiff further testified that, he does not know the Victim and she must have
mistaken him with someone. The arrest was Unlawful and it’s subsequent
Detention. That upon his release, he found his wife having deserted him.
Plaintiff was also subjected to cross e xamination by the Defendant. Both
parties brought one witness each and closed their case respectively.
LEGISLATION // CASE LAW
[16] The arresting officer was asked, as to why she did not have a warrant of
arrest when she went to pick up the Plaintiff? H er response was that, despite
the case having been opened a month before the arrest. She only received
the Docket a month later and having read the statements of the complainant
and the victim and interviewed them, she reasonably suspected that Rape
offence has been committed.
[17] And on cross examination she said that, Section 40 of the Criminal
Procedure Act allowed her to effect an arrest without a warrant. The Court
is firstly tempted to visit the statute concerned. Section 40 of the said Act
laid down a number of instances where an arrest can be done without a
warrant by a Police Officer.
[18] The relevant instance is listed in section 40 (1 )( b ) of the said act. The
section say “a Police officer may arrest without a warrant any Person whom
he reason ably suspect of having committed an offence referred to in
Schedule 1”.
[19] The Defendant testified that, statements in the docket of both the
complainant and the mother were her first point of departure. Subsequent
interview with them and the victim lead ing them to the crime scene and
pointing out the perpetrator, who is the Plaintiff. All those aspects strengthen
her reasonable belief that, Plaintiff is the perpetrator and she arrested him.
[20] Section 49 (1)(b) of the Criminal Procedure Act 51 of 1977 is the key
legislation governing arrest without a warrant. The Court had to specifically
seek judgments covering Unlawful Arrests in Rape matters. Persuasive
judgments considered by the Court were the following: (1) KAMPI //
MINISTER OF POLICE AND OTHER (37677 / 2020) ZAGPJHC 344 (20
MAY 2022) Plaintiff was arrested without a warrant of arrest in Westonaria
for a Rape and Kidnapping charge. The Police on the 19 March 2020
arrested the Plaintiff after he was pointed out by the Victim. Plaintiff was kept
in custody until 17 June 2020 when charges were withdrawn. The Court held
that, Plaintiff in proving it’s case has to show that, Defendant de prived it’s
liberty or freedom. The said was done intentionally, wrongfully and without
legal justification.
[21] While the Defendant has to show that, he is a peace officer. Arrested the
Plaintiff without a warrant of arrest and the Plaintiff is reasonably suspected
to have committed a schedule 1 offence and being a justification of the
arrest.
[22] Suspicion ha s to be based on reasonable grounds to enable the Police
exercise it’s discretion to arrest. The Defendant in this case testified that
before it made the arrest, during the parade in the morning he read the
docket which had 2 statements, both of the victi m and witness who saw
victim being dragged by Plaintiff and Plaintiff was brandishing a knife, and a
J88 was also available which did not exclude possibility of Rape. Further
interview with Victim, was convincing that she was raped.
[23] Defendant was conv inced that victim was raped and proceeded to arrest
Plaintiff, who was pointed out by victim. All the above convinced the Court
that, Defendant had made out a reasonable suspicion which justified the
arrest, further the Court stated that the reasonable sus picion did not require
the actual proving of the case.
[24] Despite the Defendant’s convincing exercise, and precaution before making
an arrest, it transpired that the victim had long informed the Defendant that
she was not raped, this was immediately afte r Plaintiff was arrested and that
was also reduced into a statement kept on investigation diary.
[25] An important aspect which was withheld from the Prosecutor. At such the
Prosecutor had to withdraw the charges against the Plaintiff.
[26] The reasonable suspicion and discretion to arrest by Peace officer, under
Section 49 (1)(b) of the Criminal Procedure Act , has to be exercised
carefully in Rape cases given that such offences take place in private and
predominately where perpetrator and victim are the o nly two individuals, and
the offence is reported after it took place.
[27] IN THE CASE OF: TEBOHO RATHEBE // MINISTER OF POLICE AND
OTHERS FREE STATE HIGH COURT HELD IN BLOEMF ONTEIN (583 /
2021) ZAFSHC 54 (01 MARCH 2024 ) The court held that, Defendant had
failed to exercise reasonable discretion, was not objective only effected an
arrest on basis of victim statement, who was a minor and without statements
of people mentioned as witnesses in that victim statement and there was no
J88 indicative of Rape.
[28] In this case the victim reported a case of Rape against his father, 2 weeks
after the incident had taken place on 30 March 2019.
[29] The victim only opened criminal charge of Rape against Plaintiff, on the 14
April 2019 without any concrete excuse. Plain tiff said in her statement, she
visited Plaintiff together with her friend and Plaintiff called him inside the
room and raped her. Further she did not disclose, in her statement that the
Plaintiff against whom she was opening the case is her biological Father.
[30] On the basis of that statement, the Police went to arrest the Plaintiff. No
witness statement of the friend who accompanied the Victim was obtained
and there was no J88 filed in the docket. And unknown by the Victim that on
the alledged date of t he 30 March 2019, her Mother was inside the Plaintiff
house given that they were still in a love relationship.
[31] Further, the victim was being entertained by the Plaintiff sister, who gave her
a burger to eat and further assisted in fetching water.
[32] The Court held that, Defendant did not exercise a basic precaution, to firstly
obtain statements of witnesses she mentioned in her statement and
diagnose crucial reasons for failure to have been taken to hospital
immediately after being Raped and why her mother statement was not
obtained.
[33] At such the Defendant acted unreasonable, he hastily decided to Arrest. The
Arrest and Detention of the Plaintiff was deemed “Unlawful, Unreasonable
and not Justified”
ANALYSIS OF FACTS BY PARTIES AND THE LAW
[34] Defendant testified first and told the Court that, she decided to arrest Plaintiff
without a warrant empowered and having a discretion in terms of Section 49
(1)(b) of the Criminal Procedure Act . She read the statement of the Victim
and the mother, wh o was a complainant having opened a missing child
docket case during October 2018 and victim statement made around the
16TH November 2018 for the Rape charge and having interviewed the child
about her statement.
[35] Defendant, drove with the victim and t he mother to arrest the Plaintiff. Victim
directed the Defendant to the Plaintiff’s place and victim further pointed out
the Plaintiff to be arrested. All those aspects being, analysis or reading of
victim statement, interviewing her and further being take n to the Plaintiff
place and being positively identified, strengthen reasonable suspicion that
the victim was indeed raped.
[36] The Plaintiff being the second party to testify, he told the Court that he was
surprised by the arrest. He does not know the Vi ctim and was seeing her for
the first time when he was being arrested. That being the gist of the Plaintiff
testimony, the Court had to apply its mind by perusing the docket copies and
went through the statements of both Parties.
[37] The Victim statement which was used by the Defendant is found in the
paginated bundle 2 of the Plaintiff’s Attorney, page 33 to 89. According to the
victim statement, she started to know the Plaintiff in September 2018 school
holidays when she visited one Sister Moloko in Desm ond Park. It was then,
that Plaintiff proposed love to her.
[38] During October 2018, victim was invited by Sister Moloko with the view to
stay with her at Desmond Park. She obliged and went to her, unfortunately
she arrived while she was still at work. Vi ctim decided to wait for her at the
Plaintiff house. She eventually arrived and later around 19:00 when she went
to Sister Moloko house, which is in the same street with that of the Plaintiff.
She was told not to rush coming back since there is a visitor expected.
[39] Victim eventually slept at the Plaintiff home, and nothing bad happened.
Victim kept spending time at the Plaintiff’s place. Suddenly on the 30 TH
October 2018, the Plaintiff decided to forcefully had sex with her. The victim
was subjected to Rape until the 15 TH October 2018 and on the 16 TH October
2018, she managed to run away from Plaintiff place and phoned her mother
and they met and proceeded to lay charges at the Police station. On the 18 TH
November 2018 victim was examined at Helen Franz Hospital and the J88
report compiled, in D section thereof it indicate that victim had sexual
intercourse during October month 2018 and being the period of the alledged
Rape.
RULING // COURT FINDINGS
[40] Firstly the Court has to consider the ambit of Section 40 (1)(b) of the
Criminal Procedure Act 51 of 1977, where a Peace Officer can effect an
Arrest if they reasonably suspect that a person has committed a schedule 1
offence , except escaping from lawful custody.
[41] Defendant is a Police officer and c lassified as a Peace officer, she testified
that she had received a docket with Complainant and Victim statement. She
went further to interview the victim. There after she formulated a reasonable
suspicion that the victim was raped.
[42] Defendant furthe r testified that, she was directed and lead by the victim to
the Plaintiff house, where she was pointed out by victim and arrested.
Plaintiff house was in the same street with her Sister Moloko house, she
always visited. The statement of the victim, disclo sed numerous encounters
which she had with the Plaintiff, also that she use to sleep at the house of
the Plaintiff without any violation being made on her by Plaintiff, until the
Plaintiff started to rape her from th e 30 TH November 2018 to the 15 TH
December 2018 when she escaped.
[43] The Plaintiff te stimony, only confined itself in denying seeing and knowing
the Victim. The Court find it improbable, for the Plaintiff to ignore the crucial
portion of the Victim statement which elaborated how and to what extent they
knew each other.
[44] It must be noted that the Court, referred to statement of the Victim which
formed the Discovery bundle filed by the Plaintiff himself before this
Honourable Court and to which the Defendant alledged she read and
interviewed the Victim about to asses how reasonable allegations made
against the Plaintiff.
[45] And the Court, further take into consideration that the J88 D section indicate
sexual intercourse encounter during the period of October 2018, and be ing a
period coinciding with Victim presence at Plaintiff residence.
ORDER
[46] Plaintiff’s Claim is hereby dismissed with costs.
__________________________
L.K. NGCANGCA
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
APPEARANCES
FOR PLAINTIFF : ADV M. SIIMA
LR RAPUDI ATTORNEYS INC
POLOKWANE
FOR DEFENDANT : ADV P.S. HOPANE
STATE ATTORNEYS (POLOKWANE)
HEARD ON : 18, 19, 22 AUGUST 2025
DELIVERED ON : 22 OCTOBER 2025