IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO: CA 194/2019
In the matter between:
ASTON LUCIANO MCCARTHY Appellant
and
MINISTER OF POLICE Respondent
__________________________________________________________________
JUDGMENT
__________________________________________________________________
RUSI J
[1] On 12 October 2018, in Galvandale, Gqeberha , the appellant was searched
and arrested by the police, without a warrant, and detained at the Galvandale police
station. Aggrieved by their conduct, he sued the respondent, in the Gqeberha
Magistrates’ Court, for damages in the total sum of R130 000.00, alleging that the
police acted wrongfully and unlawfully in so doing.
[2] On 01 October 2024, the trial court dismissed the appellant’s claims, with
costs, and the appellant now appeals against that judgment. Before I turn to the
facts of the matter, there is a preliminary matter that arose. The respondent’s heads
of argument were filed late by seven days. It sought condonation for that late filing
and tendered costs of the condonation application. The appellant did not oppose the
application and the condonation was granted.
The factual background
[3] These are the facts forming the background of this appeal. On 12 October
2018, the appellant and six other male persons were standing on the corner of Gail
and Kobus Streets in Galvandale, when two police off icers arrived in a marked
police vehicle. At the time, the appellant had an injury on his private part which he
had recently sustained in a shooting incident unrelated to this matter. He was
walking on crutches. The police arrived shortly after he had purc hased a drug
called “tik” (methamphetamine) from a nearby place.
[4] Upon their arrival, the police searched the men, and they found the drug in
his possession. He explained to them that he was using it for pain relief. However,
they put him in their veh icle, and he was taken to the Galvandale police station
where he was charged and detained. He also alleged that while in detention, he
suffered from pain as a result of his injury. Paramedics were summoned at his
behest, and they examined him. They advised the police that his injury had become
infected and recommended that he be taken to hospital for further treatment, but
this never happened. Instead, he was released by Captain Jansen on 13 October
2018 on bail of R 150.00.
[5] In his pleadings, the appe llant had alleged that his search was wrongful and
unlawful in that he was searched without his consent or a warrant authorizing the
search. It was conducted in full view of the public, without regard to decency, in an
invasive manner, and it humiliated hi m. He contended that the police had no
reasonable and probable cause to search him.
[6] He challenged the lawfulness of his arrest and detention on the ground that
they were not authorized by a warrant and were arbitrary and without just cause;
and his arrestor failed to exercise his discretion in arresting him or exercised it in
an irrational manner. His arrestor, so the assertion continued, failed to explain his
constitutional rights to him or to comply with sections 4 and 8 of the SAPS
Standing Order G341.
[7] The unlawful search, he said, was an affront to his right to freedom and
security of person, privacy, and dignity. For it, he claimed R50 000.00. His arrest
and detention were contumelious – they infringed his integrity, and his right to
liberty and dignity. He was detained in appalling and unsanitary conditions, and
resulting from th is, he suffered distress and discomfort. Accordingly, he claimed
R80 000.00 for unlawful arrest and detention.
[8] In denying liability for the appellant’s claims, the respondent contended that
the police arrested him for being in unlawful possession of tik, in contravention of
section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992, for which he was
liable to be sentenced to imprisonment up to 15 years, without an option of a fine.
Accordingly, they contended that the appellant had been lawfully arrested and
detained in terms of section 40(1)(a) of the Criminal Procedure Act 51 of 1977 (the
CPA); and sections 39 and 50 of the same Act. As regards the claim for the
unlawful search, the respondent alleged that the appellant had consented to being
searched.
The trial in the court a quo
[9] The respondent bore the onus to justify the appellant’s search, arrest and
detention, which it had admitted. At the trial, it adduced the evidence of the three
police officers, namely, Sgt Jakavula who searched and arrested the appellant, Sgt
Bodlani who was in the company of Sgt Jakavula at the time of the search and
arrest, and Captain Jansen who testified regarding the condition of the holding cells
where the plaintiff was detained, and regarding his ultimate release on bail. It is
common cause that the appellant was detained at the instance of Sgt Jakavula.
[10] According to Sgt Jakavula, while doing crime prevention duties with Sgt
Bodlani along Gail Street, they received information through radio control
regarding a suspicious male that was at the corner of Gail and Kobus Streets. The
information went on to suggest that the said male had a firearm. On arrival at the
corner of Gail and Kobus Streets they found seven males, which included the
appellant, and the y informed them of their reasons for approaching them. They
asked to search them, to which they consented. The appellant was on crutches, and
Sgt Jakavula found a small transparent packet of tik in his possession. He said that
he was obliged to arrest and detain him since he was in possession of an illegal
substance.
[11] Sgt Jakavula conceded that he did not inform the appellant of his right refuse
to be searched and to demand a warrant for his search. He denied that he conducted
the search in an invasive manner, that he injured the appellant, or that the search
was conducted with no regard to decency. It was put to Sgt Jakavula that the
appellant could not have consented to the search when he knew that he was in
possession of an illegal substance. Sgt Jak avula’s evidence regarding how the
scene unfolded upon their arrival at the spot where the appellant and six other
males were, was confirmed by Sgt Bodlani.
[12] A contemporaneous entry was made by Sgt Jakavula in his pocketbook, that
while on crime pre vention duties, they received information regarding suspicious
males with firearms and that the appellant, who was among those males, consented
to being searched. Much was made during Sgt Jakavula’s testimony, of the fact that
he failed to cause the appell ant to sign the entries he made in his pocketbook as
proof of the actions he took in relation to the appellant’s search and arrest and the
information he relayed to the appellant at that time.
[13] Captain Jansen testified that the holding cells in which the appellant was
detained were clean and so were the blankets that he and other inmates with whom
he was detained were using. She denied that the appellant was detained in
unsanitary conditions, stating that she was personally at the holding cells and saw
their conditions. According to her, a service provider is employed to clean the cells
and wash the blankets that the inmates use, and the mattresses on which they sleep
are aired on regular basis. She denied the suggestion that was put to her, that the
appellant was released owing to the trivial nature of the offence he was charged
with, stating that she released him owing to his injury.
[14] The appellant, on the other hand, testified that he did not consent to the
search, but had he been asked, he would have consented. He went on to state that
the search was conducted in an aggressive manner, and this aggravated his injury.
He contended that it took place in full view of the members of the public, but he
confirmed that tik was found in his possession. Th e police did not take him to
hospital for treatment.
[15] The notice of rights, which is part of the record before us, depicts that the
appellant was detained at 16h47 on 12 October 2018. According to the occurrence
book, he was only charged at 21h50 on th at day, by Warrant Officer Metelerkamp.
At 18h20 on 13 October 2018 he was examined by the paramedics. He was
released on the instruction of Captain Jansen based on his injuries at 20h52 on 13
October 2025, about two and a half hours after the medical exam ination and report
by the paramedics.
The findings of the trial court
[16] In dismissing the appellant’s claims, the trial court found that the evidence of
Sgt Jakavula that the appellant consented to the search was supported by that of his
colleague, Sgt Bodlani, who was present when the search was conducted. The
court further found that in possessing the tik, the appellant committed an offence in
the presence of the police, therefore, they were entitled to arrest him in terms of
section 40(1)(a) of the CPA. It further drew an adverse inference from the fact that
the appellant did not call any of the six other males that he was with during the
search and arrest.
The grounds of appeal
[17] Appropriately paraphrased, the grounds relied upon by the appellant in this
appeal are that the magistrate erred in the following respects:
(i) In failing to deal with the issue of the arresting officer’s exercise of discretion in arresting
the appellant in the light of the fact that when he was arrested, the appellant was walking
on crutches and in obvious discomfort, and in finding that the appellant’s arrest was
justified by reason of the fact that he was found in possession of tik.
(ii) In making a determination on the issue of the appellant having committed an offence in
the presence of the police when this was not an issue she was called upon to determine.
(iii) In failing to deal with the appellant’s detention after arrest.
(iv) In finding that the appellant consented to the search notwithstanding the crucial
concession that Sergeant Jakavula made, and in not having regard to the legal principles
regarding the giving of informed consent. She ought to have found that any consent that
the appellant may have given when he was not aware that he had a right to insist on a
search warrant, was not valid consent.
(v) In failing to have regard to the fact that the onus was on the respondent to demonstrate
that the appellant decided to relinquish his right to privacy with full knowledge of the
existence of his right and an apprec iation of the consequences of waiving his right, and
that on the respondent’s own version, the appellant decided to relinquish his right to
privacy without full knowledge of the existence of his right and an appreciation of the
consequences of waiving his right.
(vi) In finding that the respondent discharged the onus to justify the search in line with the
provisions of section 22(a) of the CPA.
(vii) In her evaluation of the of evidence and in not rejecting the evidence adduced by the
respondent’s witnesses as false when she ought to have done so.
(viii) In drawing a negative inference from the appellant’s failure to call a witness in
circumstances where the availability of that witness was not canvassed during the trial
proceedings.
The parties’ submissions on appeal
[18] Mr McKenzie, on behalf of the appellant, submitted that the trial court failed
to properly evaluate the evidence before it. On this score, he argued, chiefly, that
Sgt Jakavula failed to produce evidence in the form of an entry i n the pocketbook
that was countersigned by the appellant as proof of the fact that he consented to the
search and was informed of his constitutional rights at the time of the search and
subsequent arrest.
[19] He contended that the trial court ought to ha ve rejected the evidence of the
two police officers as unreliable, and that the adverse inference was incorrectly
drawn against the appellant for his failure to call one of the males that were present
during the search. If the appellant consented, so his s ubmission continued, that
consent was not an informed one, as Sgt Jakavula conceded that he did not inform
him before the search, that he had the right to refuse being searched and that any
incriminating articles found in his possession would be used as ev idence against
incriminating articles found in his possession would be used as ev idence against
him.
[20] Regarding the arrest, Mr McKenzie submitted that the trial court was
incorrect in making a finding that the arrest was, in any event, justified in that the
appellant had committed an offence in the presence of Sgt Jakavula. He
emphasized that Sgt Jakavula failed to exercise the discretion to arrest and detain
the appellant rationally, or at all, in the light of his physical condition and his
apparent discomfort, coupled to the small quantity of tik that was found in his
possession. According to him, the appellant ought to have been released from
custody by the police before his first appearance in court.
[21] Relying on S v Lachman ,1 where it was held that the argument regarding
failure to advise the suspect of the right to refuse the search and implications of
discovery of any article in his possession, was unsound, Ms Morgan submitted
that in this case too, it would have been open to Sgt Jakavula to search the
appellant at that time without requiring his consent. This, so she sub mitted, was so
on the basis that there would have been reasonable grounds for him to believe that
a warrant would be issued to him had he applied for one, and that applying for a
search warrant first, would have defeated the object of the search.
[22] She further submitted that the respondent had succeeded in discharging the
onus of justifying the arrest and detention. In this regard, she highlighted the fact
that the respondent specifically pleaded that the arrest was justified by section
40(1)(a), and th at it was a common cause fact that the appellant was found in
unlawful possession of a drug.
[23] According to Ms Morgan, the nature of the offence and the fact that Sgt
Jakavula intended to bring the appellant to justice meant that he exercised his
discretion. She took the view that the quantity of the drug that was found in the
appellant’s possession had no bearing on Sgt Jakavula’s exercise of his discretion.
1 S v Latchman 2010 (2) SACR 52 (SCA), at para 36 and 37.
She also argued that the respondent was not called upon at the trial to answer to the
failure of the police to release the appellant on bail after being charged.
The legal principles
[24] A court of appeal will be hesitant to interfere with the factual findings and
evaluation of the evidence by a trial court. 2 However, if it emerges from the record
that the trial court misdirected itself on the facts or that it came to a wrong
conclusion, the appellate court is duty -bound to overrule factual findings of the
trial court so as to do justice to the case. This accords well with the principle that
the deference afforded to a trial court’s credibility findings must not be overstated.3
[25] The powers of the police to search and seize articles without a warrant,
which may afford evidence of the commission, or suspected commission, of an
offence; which i s concerned in or is on reasonable grounds believed to be
concerned in the commission or suspected commission of an offence, whether
within the Republic or elsewhere, are governed by section 22 of the CPA.
[26] A search may, in terms of this section, be conducted without a warrant in
two instances. The first is where the person concerned consents to the search for
and the seizure of the article in question, or if the person who may consent to the
search of the container or premises consents to such search and the seizure of the
article in question. The second instance is if the police officer, on reasonable
grounds, believes that a search warrant will be issued to him under paragraph of
section 21(1) if he applies for such warrant; and that the delay in ob taining such
warrant would defeat the object of the search. And, since gender sensitivity and
respect for a person’s dignity are at the core of the search of a person, it is required
2 R v Dhlumayo and Another 1948 (2) SA 677 (A).
3 Makate v Vodacom (Pty) Ltd (CCT52/15) [2016] ZACC 13; 2016 (6) BCLR 709 (CC); 2016 (4) SA 121 (CC) (26
April 2016), para 40.
that in conducting a search, rules of decency and order be strictly obser ved. This is
in terms of section 29 of the CPA.
[27] An arrest and detention without a warrant can only be effected in terms of
section 40(1) of the CPA. Relevant to the present appeal are the provisions of
section 40(1) (a) in terms of which a person who commits an offence in the
presence of a peace officer may be arrested by that peace officer without a warrant.
It has been held that a failure of the police to warn the arrestee at the time of arrest
of their constitutional rights, does not invalidate the arrest per se.4
Discussion
[28] The judgment of the trial court is indeed bereft of the reasons why it rejected
the version of the appellant as false and accepted that of the respondent. It behoves
this Court to make an assessment of the evidence as it ap pears from the record of
this appeal. The appeal turns on whether the trial court’s findings regarding the
consent to the search were correct, and whether there was, therefore, any legal
basis for the appellant’s subsequent arrest and detention.
[29] The a re two conflicting versions regarding how the appellant’s search and
arrest unfolded. For one version to be accepted and not the other, the court must be
satisfied, on a preponderance of probabilities, that that version is true and accurate
and therefore a cceptable. It is trite that the estimate of the credibility of a witness
will be inextricably bound up with a consideration of the probabilities of the case.5
[30] Subject to what I will state regarding the trial court’s findings on the
lawfulness of the search, I am constrained to agree with the Mr McKenzie’s
submission that an adverse inference against a party who fails to call a witness is
dependent on two factors. The first is that such a witness would elucidate an aspect
4 Minister of Police v Foutie and Another (CA59/2020) [2021] ZAECGHC 26 (9 March 2021), para 36.
5 Stellenbosch Farmers' Winery Group Ltd. and Another v Martell & Cie SA and Others (427/01) [2002] ZASCA 98;
2003 (1) SA 11 (SCA) (6 September 2002) para 5; National Employers’ General Insurance Co Ltd v Jagers [1984] 4
All SA 622 (E), at 624-5.
of the facts testified to by the party concerned. The second one is that the said
witness was in fact available to testify. This is trite law.6
[31] To the extent that it was not established at the trial of the case whether any
of the six other males were as a matter of fact available to testify, the adverse
inference was incorrectly drawn against the appellant. However, this was not the
only basis for the findings that the trial court made con cerning the contested issue
of the consent to the search. I turn to consider such other bases of the trial court’s
findings as they appear from the record.
The consent to the search
[32] In his own testimony during the trial of the matter, the appellant s tated, in
denying that he consented to the search, that, ‘as a human being, he had rights, the
police could not just search him.’ He further testified that had the police requested
his permission to search him, he would have granted them that permission ev en
though he knew that he had drugs in his possession. This, he said notwithstanding
what was previously suggested to Sgt Jakavula, that he would not have consented
to the search since he knew that he had an illegal substance in his possession.
[33] I interpose to state that the appellant confirmed that he knew that tik was an
illegal substance save for the fact that he used it for pain relief. He knew, in this
instance, that an incriminating substance would be discovered, yet with this
knowledge, he would have given the police consent to search him.
[34] For the present purposes, in order for the police to invade the appellant’s
privacy by searching him in circumstances where they had no warrant authorizing
6 Elgin Fireclays Limited v Webb 1947 (4) SA 744 at page 749 -750; see also Tshishonga v Minister of Justice and
Constitutional Development and Another 2007 (4) SA 135 (LC); Boyce NO v Bloem 1960 (3) SA 855 (T) at 864.
the search, they had to obtain his informed consent.7 In this regard, it had to be
shown that when he consented to being searched, the appellant knew what right he
was waiving and the implications of such waiver. It had to be shown that he knew
that he had a right to refuse the search.
[35] We were provided with the SAPS Standing Order G341 (the standing order)
which, as argued on behalf of the appellant, required Sgt Jakavula to cause the
appellant to sign the entry made in the pocketbook. This, so it was argued, would
stand as confirmation of th e veracity of the entries that Sgt Jakavula made
concerning the appellant’s consent the search, and the fact that his constitutional
rights were read to him upon being arrested.
[36] To my mind, the circumstances of each case, the nature of the right to b e
waived and the manner of its waiver ought to determine whether the waiver was an
informed one. From the standing order, it is indeed manifest that the police are
required to cause an arrested person to co -sign any of the entries made regarding
the actions they took and the information they conveyed to that suspect or if the
suspect refuses to sign, to enlist the help of any civilian available, and if no such
civilian is available, to record that fact.
[37] It is doubtful, though, that the SAPS standing o rders, which are internal
instruments whose purpose is to give meaning to the constitutional imperatives of
the protection and promotion of the rights of the arrested persons, are meant to be
absolute rules of procedure in effecting searches, arrests and d etention. This, I say
in the light of the fact that in the exercise of their crime prevention duties, the
police, as was the case in the present matter, are often expected to act swiftly.
7 Mohamed and Another v President of the Republic of South Africa and Others (CCT 17/01) [2001] ZACC 18;
2001 (3) SA 893 (CC); 2001 (7) BCLR 685 (CC); 001 (2) SACR 66 (CC) (28 May 2001), para 62-69.
[38] The standing orders are indeed useful internal tools at ensuri ng
accountability on the part of the police. But when the court makes a determination
of the lawfulness of police conduct, it does so not as against the formalities
prescribed by these instruments, but against the standard of reasonableness and
good faith. It seems to me that the sensible approach in interpreting the standing
orders is to determine, on a case -by-case- basis, whether there are objective facts
from which substantial compliance with their provisions, spirit and purport can be
discerned, bearing in mind the standard against with the lawfulness of the police
conduct is measured.
[39] If, in a given case, there are objective facts which give credence to a police
officer’s account of the actions they took, and information given to a suspect, it can
hardly lie in the mouth of the interested person (the suspect/arrestee) to argue that
because there was no strict compliance with the provisions of the particular
standing order, it must follow that the police conduct in executing their duties was
unlawful. To conclude otherwise, would unreasonably hamstring the police in their
crime prevention duties in a country where the incidence of crime continues
unabated.
[40] In the circumstances of the present case, nothing should turn on the fact that
the appellant did not sign the entry that Sgt Jakavula made that he had consented to
being searched. The fact that a contemporaneous entry was made by Sgt Jakavula
that the appellant consented to the search, viewed together with the corroboration
of Sgt Bodlani and the appellant’s own version as summarized above, makes the
appellant’s account that he did not consent to the search improbable. The finding of
the trial court that the appellant did consent to the search cannot be faulted.
Whether that consent was informed is the question I deal with next.
[41] Much was made in this regard, of the fact that Sgt Jakavula conceded that he
did not inform the appellant before the search, that he had the right to refuse being
searched and that any incriminating articles foun d in his possession would be used
as evidence against him. This aspect must be considered against the fact that when
Sgts Jakavula and Bodlani proceeded to the spot where the appellant was found in
the presence of six other males, they had information that there was a male who
was suspected to be in possession of a firearm. That they found not one but seven
males, is of no moment, for they still had to find which of those seven males was
the subject of the description they had received from radio control. T hey informed
the said males of the reason for approaching them and requested their permission
to search them.
[42] No reliance was placed by the respondent, in defending the action, on the
fact that they had to act with the haste envisaged in section 22 (b) of the CPA. I do
not need to consider this aspect of the argument which was posited in support of
the contention that the trial court correctly found that appellant consented to the
search. There are, however, other reasons why the appellant’s contention that the
consent said to have been given was not an informed one, cannot be sustained.
[43] As mentioned, the appellant, on his own version, knew that ‘he had rights as
a human being, police cannot just search him’ ; he knew that he had a right to be
asked for his consent before being searched; he knew that he had an illegal
substance in his possession; his stance was that had he been asked for permission
to be searched he would not have withheld it. This demonstrates his willingness.
The inescapable conc lusion is that the consent that the appellant gave to being
searched passed muster – it was informed consent. I turn to deal with the
appellant’s assertion that the search was conducted in an indecent manner; and in
appellant’s assertion that the search was conducted in an indecent manner; and in
an aggressive manner which resulted in the aggravation of his injury.
[44] Mr McKenzie conceded that the appellant gave no details in the trial court of
how his search was conducted without regard to decency. He conceded, too, that
the appellant did not plead that the search was conducted in a rough manner, nor
did he give evidence at the trial regarding how the police aggravated his injury.
These concessions were well made, as indeed no such details appear from the
record, nor were any material facts pleaded in support of the appellant’s asser tions
in this regard. The appellant’s testimony that the police fondled his private parts
was clearly an afterthought. Accordingly, his contentions in challenging the trial
court’s findings regarding the lawfulness of his search cannot be sustained.
The lawfulness of the arrest and subsequent detention
[45] The appellant’s contention is that because the search was unlawful, his arrest
and subsequent detention were unlawful, alternatively, that Sgt Jakavula failed to
exercise his discretion rationally, or at all, in arresting him. I have already
determined that the appellant’s search was lawful.
[50] The fact that the appellant was found in possession of tik meant that Sgt
Jakavula had observed prima facie criminal conduct on his part. 8 Therefore, in the
context of section 40(1)(a), on which the respondent relied as the justification for
the arrest, the appellant committed an offence in the presence of Sgt Jakavula, and
he could be arrested without a warrant. Any contention to the contrary cannot be
sustained. Mr McKenzie’s submission, that no case was pleaded by the respondent
in this regard, is a ruse. I turn to deal with whether Sgt Jakavula exercised his
discretion rationally, or at all, in arresting and detaining the appellant.
[51] The decision to arrest indeed entails the exercise of a discretion, and the
arresting officer must be aware of that discretion. O nce the jurisdictional facts for
8 Tsose v Minister of Justice & Others 1951 (3) SA 10 (A ); Korkie v Minister of Police (2129/2020) [2022]
ZAECGHC 2 (1 February 2022), para 19.
an arrest, whether in terms of any paragraph of section 40(1), or even where the
arrest is authorized by a warrant in terms of section 43 of the CPA, are present, a
discretion arises, and the peace officer is not obliged t o arrest. 9 That discretion
must be exercised after taking all the prevailing circumstances into consideration.10
[52] The appellant had the onus of proving that the police did not exercise their
discretion properly or rationally. It was his testimony, i n support of the contention
that the police failed to exercise their discretion in arresting him, that in the light of
the condition he was in – in pain from the injury in his private part and walking on
crutches coupled to the small quantity of the tik fo und, they should not have
arrested him. Sgt Jakavula confirmed, during his testimony, that he had a discretion
to exercise whether to arrest the appellant or not, but in this case, he was ‘obliged’
to arrest him because he was in possession of a drug.
[53] Regard must be had to the following facts. The arrest of the appellant took
place on the street in the circumstances already described. There should be little
doubt that in those circumstances there was a need for the police to act swiftly.
What is more, upon being searched, a dependence producing substance for which
he had no form of permission or authorization was found in his possession.
[54] We were not referred to any authority for the proposition that the small
quantity of the kind of drug that the appellant was found in unlawful possession of,
was a ground, in the circumstances of the present case, for the exercise of the
discretion in favo ur of employing other methods of bringing him to justice. We
know of none. Unlawful possession of methamphetamine (tik) remains a serious
offence, and its quantity would become relevant at another stage not having
9 Minister of Safety and Security v Sekhotho 2011 (1) SACR 315 (SCA), para 28 ( Sekhotho); Hlape v Minister of
Police (426/2023) [2024] ZASCA 68; 2024 (2) SACR 148 (SCA) (3 May 2024), para 13.
10 Biyela v Minister of Police (1017/2020) [2022] ZA SCA 36; 2023 (1) SACR 235 (SCA) (1 April 2022), para 36
(Biyela); Hlape v Minister of Police, supra, para 13.
anything to do with the police powers to a rrest the unlawful possessor. It should
perhaps be unsurprising that the legislature specified no quantity in listing ‘illicit
possession of any other dependence - producing drug’ among the offences in
respect of which the police may not release a person be fore appearing in court.
This, in my view, underscores the serious light in which the legislature viewed this
type of offence.
[55] Interestingly, on his own showing, the appellant had been suffering from
pain at the time of the impugned search and arrest, and he had taken the trouble to
endure the discomfort that came with the pain when he walked some distance on
crutches to buy drugs to numb his pain. Having bought the drug, he still had time
to sit on the street corner with a group of other males while suffering from the pain.
I find it rather disingenuous of the appellant to rely on his condition as the basis for
the contention that the police did not properly or rationally exercise their discretion
in arresting him.
[56] In any event, I do not conceive of any other method that the police could
have used in the circumstances that prevailed at the time, in bringing the appellant
to justice. Consequently, I find that Sgt Jakavula properly exercised his discretion
in arresting the appellant. The arrest was lawful.
[57] Even where a person was lawfully arrested, a police officer effecting an
arrest is equally enjoined to apply his or her mind to the circumstances relating to a
person’s detention. This includes applying his or her mind to the question whether
detention is necessary. 11 This is in keeping with the fact that the arrest and
11 Mvu v Minister of Safety and Security 2009 (6) SA 82 (GSJ) at 90A; Hofmeyer v Minister of Justice and Another
1992 (3) SA 108 (C).
detention are two separate legal acts, even though they both result in the restriction
of a person’s liberty.12
[58] It bears mentioning that the appellant did not plead that the police should
have facilitated his release on bail after he was charged. An attempt was made at
the trial, and on appeal before us, to argue that the police ought to have released
him on bail sooner. On the face of the record, this issue was not fully canvassed by
both sides.13
[59] Notwithstanding Captain Jansen’s testimony that she directed the release of
the appellant on bail, there was no controversy at the hearing of the appeal, that she
did not have the power to do so. In terms of section 59A of the CPA read with
Schedule 7 of the same Act, only the prosecutor, in consultation with the police
officer charged with the investigation of the offence, could authorize the release of
the appellant on bail before his appearance in court.
[60] There is a nother difficulty that faces the appellant, which Mr McKenzie
correctly conceded. If it is accepted, as I have found, that the initial arrest was
lawful, there is no evidence to establish at what stage, thereafter, his detention
became unlawful. At best for the appellant, any justification for his further
detention ceased after Captain Jansen made the decision (albeit incorrectly, as
mentioned) to release him on bail owing to his injury. This would be after 18h20
on 13 October 2018, which is when, as gleaned from the occurrence book, the
appellant was examined by the paramedics. He was released at 20h52 on that same
day, approximately two and a half hours after his examination and Captain Jansen’s
decision to release him.
12 MR v Minis ter of Safety and Security 2016 (2) SACR 540 (CC), para 39; Mahlongwana v Kwatinidubu Town
Committee 1991 (1) SACR 669 (E) at 675d-f.
13 Cf Minister of Safety and Security v Slabbert (668/2009) [2009] ZASCA 163; [2010] 2 All SA 474 (SCA) (30
November 2009), para 12.
[61] There is no evidence in the record indicating why the appellant was kept in
detention for two hours or more after the decision was made to release him on bail.
It ought to follow that the respondent has failed to justify this period of the
appellant’s detention. What remains is a determination of an appropriate award of
damages resulting from detention for approximately two and a half hours.
The quantum of damages
[62] The unlawful deprivation of a person’s liberty is, in itself, a serious injury
which constitutes an impermissible infringement of his/her constitutional rights to
freedom and security of the person, and to human dignity.14
[63] In Motladile v Minister of Police, 15 the Court laid down the approach to be
followed in the assessment of damages as follows:
‘[T]he assessment of the amount of damages to award a plaintiff who was unlawf ully arrested
and detained, is not a mechanical exercise that has regard only to the number of days that a
plaintiff had spent in detention. Significantly, the duration of the detention is not the only factor
that a court must consider in determining what would be fair and reasonable compensation to
award. Other factors that a court must take into account would include (a) the circumstances
under which the arrest and detention occurred; (b) the presence or absence of improper motive or
malice on the part of the defendant; (c) the conduct of the defendant; (d) the nature of the
deprivation; (e) the status and standing of the plaintiff; (f) the presence or absence of an apology
or satisfactory explanation of the events by the defendant; (g) awards in comparabl e cases; (h)
publicity given to the arrest; (i) the simultaneous invasion of other personality and constitutional
rights; and (j) the contributory action or inaction of the plaintiff.’16
[64] I have referred earlier to the contentions relating to the cond ition of the cell
where the appellant was detained. The magistrate accepted the evidence of
where the appellant was detained. The magistrate accepted the evidence of
14 Motladile v Minister of Police (414/2022) [2023] ZASCA 94 (12 June 2023) para 22.
15 Supra, footnote 8.
16 Id, at para 17.
Captain Jansen that she had personally visited the holding cell where the appellant
was detained. The cell was clean, and the blankets and mattress used by the
appellant were cleansed by a service provider employed to do so. In this regard
reference was made to the occurrence book which details the cell visits that were
undertaken after the appellant’s detention.
[65] Detainees are often detained in atrocious, and at times inhumane,
conditions, but it is equally true that some of the places of detention are of
acceptable standards, in line with human dignity. It would be legally unsound,
therefore, to assume, as a general position, that all places of detention are filthy, so
to speak. Be that as it may, the deprivation of a person’s liberty, even if for a short
period, is a serious matter.
[66] There is, indeed, no empirical measure for the loss resulting from the
violation of a person’s dignity.17 Damages are awarded as a gesture of goodwill to
the aggrieved and they do not rectify the wrong that took place .18 As held in
Minister of Safety and Security v Tyulu 19 while it is always helpful to have regard
to previous awards, such an approach, if slavishly followed, can prove to be
treacherous. The correct approach is to have regard to all the facts of the particular
case and to determine the quantum of damages on such facts.20
[67] In Syce and Another v Minister of Police, 21 an award of R40 000.00 was
made on appeal, for the appellant’s detention overnight (approximately 11 hours).
In Van der Nest NO v Minister of Police ,22 the appellant was awarded R50 000.00
for detention for less than 24 hours in November 2019, having cons idered, inter
17 Minister of Safety and Security v Seymour [2007] 1 All SA 558 (SCA); 2006 (6) SA 320 (SCA), para 20.
18 Mahlangu and Another v Minister of Police (CCT 88/20) [2021] ZACC 10; 2021 (7) BCLR 698 (CC); 2021 (2)
SACR 595 (CC) (14 May 2021), para 50.
19 2009 (5) SA 85 (SCA).
20 Ibid, para 26.
SACR 595 (CC) (14 May 2021), para 50.
19 2009 (5) SA 85 (SCA).
20 Ibid, para 26.
21 Syce and Another v Minister of Police (1119/2022) [2024] ZASCA 30; [2024] 2 All SA 66 2 (SCA); 2024 (2)
SACR 1 (SCA) (27 March 2024).
22 Van der Nest NO v Minister of Police (154/2024) [2025] ZASCA 42; [2025] 2 All SA 655 (SCA); 2025 (5) SA
152 (SCA) (10 April 2025).
alia, the deterioration in the value of the currency over the years. In Madingana v
Minister of Police ,23 Laing J awarded R80 000.00 for the plaintiff’s unlawful
detention overnight. In Lenoke v Minister of Police ,24 the Full Court Bench
awarded the appellant R30 000.00 for unlawful detention for 3 hours. In Liu Quin
Ping v Akani Egoli (Pty) LTD t/a Gold Reef City Casino, 25 a 45 -year-old
businessman who was unlawfully detained at the Casino for approximately three
hours, for the contravention of the Gauteng Gambling Act 4 of 1995, was awarded
R12 000.00.
[68] I have taken into account the fact that the appellant was unlawfully detained
for over 2 hours. At the time, he was 35 years of age, and he was employed to pick
up papers in front of ce rtain offices. His highest level of education was grade 11.
As held in SA Eagle Insurance Co Ltd v Hartley ,26 the Court’s evaluation of an
appropriate award must take into account the current day value of currency and not
at the earlier time. Even though t he plaintiff’s arrest and detention took place in
2018, this Court is enjoined to have regard to the depreciating value of money due
to the effects inflation. On a consideration of all the facts, I consider that an award
of R10 000,00 is fair in this case.
Costs
[69] The appellant has been partially successful in this appeal. That being so, the
aspect in respect of which he succeeded still entails an important issue – a person’s
right to liberty. Even though arrest and detention have the same effect of limiting a
person’s liberty, they are separate legal acts. Hence, the claim for unlawful
detention could stand on its own. Although the claims relating to the search and
arrest are separate, they are closely interlinked to his subsequent detention. The
23 Madingana v Minister of Police (3411/2021) [2023] ZAECGHC 29 (4 April 2023).
24 Lenoke v Minister of Police (CIV APP MG 27/2023) [2024] ZANWHC 277 (6 November 2024).
24 Lenoke v Minister of Police (CIV APP MG 27/2023) [2024] ZANWHC 277 (6 November 2024).
25 Liu Quin Ping v Akani Egoli (Pty) LTD t/a Gold Reef City Casino 2000 (4) SA 68 (W).
26 1990 (4) SA 833 at 841D-E.
respondent made no offer to settle the dispute, and the appellant was compelled to
proceed with the litigation, and the appeal, in order to recover what is due to him.
In this sense, the costs of the litigation were occasioned by the attitude of the
respondent. Therefore, despite the appellant’s partial success, the respondent ought
to carry the costs of the trial and of this appeal. It is fair and just that this be so.
[70] In the result, I would make the following order:
1. The appeal against the dismissal of the appellant’s claim for unlawful search
and arrest is dismissed.
2. The appeal against the dismissal of the appellant’s claim for unlawful
detention is upheld to the extent set out below.
3. The order of the Magistrates’ Court is set aside and replaced with the
following order:
‘(a) The plaintiff’s claim for damages resulting from his search and
arrest on 12 October 2018, is dismissed.
(b) The defendant is liable for damages resulting from the plaintiff’s
unlawful detention at Galvandale Police Station, Gqeberha, from
18h20 to 20h52 on 13 October 2018.
(c) The defendant is ordered to pay to the plaintiff the sum of R10 000
as damages for the said unlawful detention, together with mora
interest, at the rate of 10% per annum, from the date of service of
summons to date of payment.’
(d) The defendant shall pay the plaintiff’s costs of the action.’
4. The respondent shall pay the costs of this appeal on scale B referred to in
Uniform Rule 67A, and such costs will include the costs of the condonation
application.
____________________
L. RUSI
JUDGE OF THE HIGH COURT
EKSTEEN J:
I agree.
__________________
J W EKSTEEN
JUDGE OF THE HIGH COURT
Appearances:
For the appellant : Mr P . McKenzie
Peter McKenzie Attorneys
c/o 5 Betram Street, Makhanda
For the respondent : Adv. Morgan
Instructed by : The Office of the State Attorney, Gqeberha
Date heard: 25 July 2025
Date delivered: 15 October 2025