Khosa v Minister of Police (5022/2017) [2025] ZALMPPHC 205 (10 October 2025)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)

CASE NUMBER: 5022/2017
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 10/10/2025
SIGNATURE:

In the matter between:

SADIKE DERICK KHOSA PLAINTIFF

AND

MINISTER OF POLICE DEFENDANT

JUDGMENT

STRÖH JA

[1] The Plaintiff ( Sadike Derick Khosa) instituted an action for damages against
the Minister of Police, (hereinafter the Defendant), claiming an amount of R 300 000-
00 (Three Hundred Thousand Rand)for the unlawful arrest on the 1 st May 2013,
payment of R 3 700 000.00 (Th ree Million Seven Hundred Thousand Rand) for the
alleged unlawful detention for three(3) years six(6) months and nineteen (19) days
as from the 29 th April 2013 to the 17 th November 2016, payment of R 900 000,00
(Nine Hundred Thousand Rand) for impairment o f dignity and reputation and

humiliation, payment of R 2 000 000,00 (Two Million Rand) for deprivation of
freedom of movement and liberty, and an amount R 1 000 000,00 (One Million Rand)
for loss of amenities of life and psychological trauma and discomfort.

[2] The members of the South African Police Services (" SAPS") arrested the
Plaintiff without a warrant on the 1 st May 2013, for allegedly committing the offences
of assault with intent to do grievous bodily harm and murder. He was detained at
Ritavi Police Station. The members of SAPS were acting in the course and scope of
their employment and pursuing the interest of the Defendant.

[3] In his particulars of claim, the Plaintiff alleged the arrest and detention was
unlawful! as there was no justa causa for his arrest and detention. Due to the arrest
and detention as aforementioned, the Plaintiff was injured in his dignitus and his
right to movement was unlawfully infringed upon.

[4] The Plaintiff further alleged in his particulars of claim that he was denied bail
throughout his period of detention which was from the 29 th April 2013 to the 17 th
November 2016, which was three (3) years six (6) months and nineteen (19) days.
The Plaintiff was subsequently found not guilty on all charges conferred upon him
and discharged on the 17th November 2016.

[5] In the amended plea filed on 2 nd June 2021, the Defendant pleaded to the
Plaintiff's amended particulars of claim dated 12th October 2020 , as follows:

(a) The Defendant admit that the Plaintiff was lawfully arrested without a
warrant after he handed himself over to members of the Defendant after being
implicated as a suspect in the crime, assault with the intention to do grievous
bodily harm and murder.
(b) The arrest and detention were justified by the provisions of section
40(1)(b) and section 40(2) of the Criminal Procedure Act, Act 51 of 1977 as
amended ('the CPA").
(c) The Plaintiff was one of the suspects who were involved in the
commission of the crime.

(d) Defendant will rely on the statements of the witness Ms Tinyiko Dunga
and statements of the other suspects that were arrested before the Plaintiff's
arrest, which sus pects were members of the community that assaulted the
deceased who later died in Letaba Hospital. Such statements form part of the
docket as discovered and should be read as if incorporated herein.
(e) The Plaintiff was identified by the suspects in the c riminal trial that the
Plaintiff was one of the community members who together with them
assaulted the deceased.
(f) After being arrested the Plaintiff was detained in terms of section 50 of
CPA and appeared before the Magistrate within 48 hours.
(g) Because Plaintiff committed a serious crime and also because of the
fact that he had previous conviction, bail for the Plaintiff was opposed and Bail
was subsequent denied.
(h) The police officers who are members of the Defendant were acting in
terms of the CPA and that they complied with sections 40 and 50 of the CPA.
(i) The arresting officer of the Plaintiff was a peace officer as defined in
the Act. He had a reasonable suspicion that the Plaintiff committed a
Schedule 1 offence of assault with the intention to do grievous bodily harm
and murder.

[6] It is common cause that on the 1 st May 2013, the Plaintiff was arrested by the
police and detained at Ritavi Police Station and appeared in court within 48 hours. It
is also common cause that the Plaintiff remained in custody until discharged on the
17th November 2016.

[7] Before the trial started, the parties had agreed that there would be separation
of merits and quantum.

[8] Regarding the lawfulness of the arrest and detention, the defendant bears the
onus to prove the grounds of justification.1 That is so because the justification for the
detention following an arrest until detainee's first appearance in court continues to

1 Minister of Law and Order v Hurley 1986 (3) SA 569 (A) 589 E-F

rest on the police.2 The defendant also has an onus of proving the law fulness of the
plaintiff's continued detention until the 1 7th November 2016. The general principle is
that the onus rests on the detaining officer to justify the detention because detention
is prima facie unlawful.3
The Plaintiff bears the onus only when he alleges that the arresting officer failed to
exercise his/her discretion rationally . The parties agreed that the Defendant would
commence leading evidence in resp ect of lawfulness of the arrest and calling one of
the police officers to lead evidence regarding the deceased detaining officers'
evidence (Hearsay Evidence - Section 3(1)(c) of Act 45 Law of Evidence). Once the
Defendant has lead evidence that the arrest was lawful and the court accepts the
hearsay evidence, the onus shifts to the Plaintiff then to prove that the arrest of the
Plaintiff did not meet the threshold in terms of Sect 40 of the CPA and that the
arresting officer of the Plaintiff did not have the reasonable suspicion as needed at
the time of the arrest.

[9] To prove his case against the Defendant, the Plaintiff testified himself and
called one other witness Kaizer Lala Shipalana. The Defendant called Sgt Jonas
Alex Malunganyi (one of the two police officers first on the crime scene), W/ O Jonas
Shikwambana (who arrested one of the other suspects in the criminal case against
Plaintiff and who testified on behalf of the detaining officer of the Plaintiff) and
Tinyiko Annickie Dumela (one of the witnesses at the crime scene) to testify on their
behalf.

The evidence of Sergeant Jonas Alex Malunganyi

[10] On the 28 /29th April 2013, Sgt Malunganyi was on duty with Constable
Phakula at Ritavi Police Station. He receive d a complaint regarding a person that
was attacked by a Mob at Nkowankowa. They rushed to the place where the crime
occurred. On their arrival, they saw that the deceased was already assaulted, and

occurred. On their arrival, they saw that the deceased was already assaulted, and
the assault continued while they were at the crime scene. They enquired from the

2 Minister of Police and v Another v Du Plessis [2013] ZASCA 119; 2014 (1) SACR 217 (SCA) at
para 17.
3 See JE Mahlangu and Another v Minister of Police [2021] ZACC10 at para [32) where it was held
that once it has been established that the constitutional right not to be deprived of one's physical
liberty has been interfered with, the deprivation is prima facie unlawful, and the infringer bears t he
onus to prove that the inference was justified.

bystanders at the crime scene as to who assaulted the deceased, but no -one came
forward to testify as to what occurred at the crime scene. They then rescued the
deceased from the persons assaulting him and placed the deceased in the police
van. They decided to drive directly to the Letaba Hospital with the deceased who
was at that stage still alive. After the hospital, Sgt JA Malunganyi went back to the
police station and opened a skeleton file. The main reason for the skeleton file w as
because the name of the deceased was not known to him at that stage.

[11] During cross -examination, Sgt Malunganyi conceded that in 2013, he was
already 5 (five) years in the Police Services and had enough knowledge to work as a
police officer. He also confirms that he is a Peace Officer in terms of the CPA. He
further testified that he did not arrest the Plaintiff and also in his statement on page
126 and 127 of the police docket he did not mention the Plaintiff by name. When
asked by the court if he k new the deceased's name, he testified that he knew but
forgot the name while testifying in this trial.

The evidence of Warrant Officer Martiharini Jonas Shikwambana

[12] W/O Shikwambana testified as to what he knew regarding the offences of
assault with intent to do grievous bodily harm and murder which occurred on the
28/29 April 2013 to which he replied, "Mob Justice". When asked what he
understands by the meaning of "Mob Justice" he replied, "person killed by many
community members". He also responded by testifying that the reason for Mob
Justice is usually an "intruder in the community".

[13] He was referred to page 114 of the police docket and replied: "it is statement
of suspect Sadike Derick Khosa". According to this witness, the interview was done
by the investigating officer (1/0) Detective Warrant Officer (D/W/O) BK Homu. He
further confirmed that it was D/W/O Homu who signed the statement in respect of

further confirmed that it was D/W/O Homu who signed the statement in respect of
the interview with Plaintiff on page 86 of the police docket. The reason why he could
confirm it was because each police officer has a unique service number. He used
this service number of D/W/O Homu to obtain the death certificate of D/W/O/ Homu
which was also handed in this court as exhibit "A".

[14] It was mentioned that page 85 of the police docket is part of the interview
statement that started on page 114 of the police docket. Paragraph 6 on page 85 of
the police docket contained the following: "Hereafter the suspect declares, or answer
to the questions as follows: On Sunday 2013.04.28 at ab out 22:00 I was at home
when I heard a voice of somebody calling for help. After that I went out and
proceeded to the direction where the person was calling or shouting for help. When I
arrived in the street I found a lot of people who were busy assaulting a male person
who was wearing a Kaizer Chiefs T -Shirt and his lower part pf his body was naked.
After that I asked a lady who reside in the same street who is known as Bonita's
mother whether the police were called. She informed me that they had only two
police vans. I then phoned Ritavi police and directed them to the scene and they
arrived. I didn't participate in the assault, and I didn't even identified those who were
assaulting the unknown black male." This interview statement was signed by the
plaintiff on the 1st May 2013. The statement was also commissioned by this witness.
The witness confirmed that he was not the arresting officer for the Plaintiff. When
asked who was, he replied: "D/W/O Homu." The witness testified that he was the
arresting officer for other suspects in the same criminal trial that the suspect was
involved in.

[15] The witness was further referred to page 90-92 of the police docket to which
he confirms that the statement was made by D/W/O Homu on the 2 nd May 2013 at
15:52. Paragraph 1 - 9 of this statement of D/W/O Homu contained the following:
"Ritavi cas 296/04/2014 Boldwin Kavana Homu state under oath i n English: "I am a
b/male 50 years old, ID 6 […]0 and a resident of house No 182/8 Nkowankona .
Cellular No 0 […]. Employed by the department of Safety and Security stationed at
Ritavi police station . Tel 0[…].
On Monday 2013.04.29 at about 17:20 I was doin g investigation at Mbambamencisi

On Monday 2013.04.29 at about 17:20 I was doin g investigation at Mbambamencisi
village when I arrived at a certain homestead where the deceased is alleged to have
been found in the door. When I asked the daughter of b/female Tinyiko Annickie
Dumela about the incident which is alleged to have started a t her home, she
informed me that she was not at home when it happened.
Thereafter she informed me that she only heard that, an unknown b/male has
entered at her homestead and pushed the door begging her mother to open the door.
She alleged that her mother summoned people or community members to come and

assist. She further told me that it was alleged that the deceased first entered at
b/male Freddy Mathye's home.
She then pointed out to me the homestead of b/male Freddy Matythy's home. When
I arrived at b/m ale Freddy Matthye's homestead, I found him. When I asked him
about the unknown b/male who was assaulted at Mbambamenasi near his
homestead, he told me that the deceased first came at his home.
He further told me that the unknown b/male first knocked at hi s house's window. He
alleged that when he wanted to know who was knocking at the door, the unknown
b/male runaway. According to him he heard his neighbour known to him as Bonnita's
mother shouting for help. When I asked him about the people who assaulted t he
deceased, he gave me a report that he was one of the people who assaulted the
deceased.
He then gave me a list of people he alleged that, they participated in the assault of
the deceased. He alleged that b/male Sadike, Zakaria Seoka, Elia Thembain, Davi d
and lshy their surnames unknown are some of the people who assaulted the
deceased. After that I told him to come to Ritavi with the above -mentioned people
and the reason for that, was because I wanted to first get a statement from b/female
Tinyiko Annickie Dumela.
On Tuesday 2013.04.30 I was expecting the listed people to come and see me but
they did not turn up. On Wednesday 2013.05.01 I was at Ritavi police station when
b/male Derrick Sadike Khosa came and I arrested him. I explained his right to him
and charged him.
On Thursday 2013.05.02 at about 09:00 detective warrant officer Shikwambana M.J
arrested the second suspect b/male Freddy Matthye.
I know and understand the contents of this statement. I have no objection to taking
the prescribed oath. I consider the prescribed oath to be binding on my conscience."

[16] The witness testified that he knew Freddy Mathye and that he was the one
who arrested him. He was referred by his legal representative to Page 94 of the

who arrested him. He was referred by his legal representative to Page 94 of the
police docket to which he confirms that it is his statement that he made on the 2 nd
May 2015. Paragraph two of this statement under oath by this witness contained the
following: " On Thursday 2013.05.02 at about 09:00 I was on duty when a b/male
who identified himself as Freddy Matthye came personally at the office and alleged
that he was suspect of a murder case."

[17] The witness was ask ed if he also know Tinyiko Annickie Dumela to which he
replied "She was the one who shouted for help after deceased went to her place".

[18] Page 76 of the police docket to which this witness testified, is his arrest
statement of two more suspects in the Plaintiff's criminal trial. The names of these
two suspects were Sagaria Justice Seska and Phanyane Eliah Seska.

[19] The witness was asked by his legal representative to identify page 107 of the
police docket to which he replied: "statement interview sus pect- Freddy Matthye
dated 2nd May 2013". Page 108 and 109 of the police docket is part of the interview
statement by Freddy Matthye and Paragraph 6 on page 109 contained the following:
" Hereafter the suspect declares, or answer to questions as follows: I deny all the
allegations against me , on Sunday 2013.04.28 at about 21:16 I was at home at
Mbambamencisi Village when I heard a knock at the window. I tried to find out as to
who was that person and there was no respond. I tried to find out as to who was that
person and he started to runaway.
I then heard Bonnita's mother crying for help. I rushed to Bonnita's mother and find a
certain unknown b/male wearing a Kaizer Chiefs t­ shirt, brown trouser and a pair of
white Nike takkies, he was surrounded by a gr oup of many people who were
assaulting him.
Whilst the group of people (mob) were assaulting him the said b/male was shouting
"darling" referring to Bonnitas mother that how can she let people to kill him,
Bonnitas mother went aside.
The unknown b/male was assaulted by the mob from 21:00 and people were busy
phoning the police since then until on Monday 2013.04.29 at about 01:00 when the
police came and took the deceased away.
I didn't assault the deceased as it is alleged and whilst the deceased was being
assaulted he was shouting Bonita's mother.
Amongst the people who were assaulting the deceased I didn't identified anybody"

Amongst the people who were assaulting the deceased I didn't identified anybody"

[20] The witness was referred to paragraph 4 and 6 of the Plaintiff's Particulars of
Claim and more specifically to the "unlawful! arrest and detention" by the Police and

was asked what is his comment. He answered as follows: "There must be prima
facie evidence - No need for warrant if evidence is direct"
On the question of what direct evidence is, he testified:" that I saw the suspec t do
this- no need for warrant".
On the question of what is your reason for arresting someone, he testified: " his
involvement on the crime"

[21] The witness further testified that the Bail form for the Plaintiff is on page 113
of the police docket which indicated that Bail was applied for on the 2 nd May 2013
and that Bail was not granted. The witness confirmed that he was not present at the
hearing of the Bail application.

[22] The witness testimony was further that SAPS 69 of the Plaintiff indicated that
he had previous convictions and that he was convicted on 3 rd August 2011 for the
offence of assault with intent to do grievous bodi ly harm. He further testified that the
reason for refusal of bail with his experience as a police officer was because of the
SAPS 69, especially with the charge of murder.

[23] The witness further testified that the reason why the description on the police
document on page 129 of the police docket was initially assault, was because when
the deceased was brought to hospital, he was still alive. It was changed to murder
when he passed away.

[24] The witness confirms that he is aware of the contents of section 40(1)(b) of
the CPA. He was referred to the pleading which refers to murder which is a schedule
one offence to which he replied "Correct".

[25] The witness was also referred to page 115 of t he police docket by his legal
representative, which I don't accept as evidence in this trial. The reason for not
accepting this evidence is because page 115 of the police docket refers to a
progress report of the deceased in hospital. No evidence was led t o who the person
was that made these comments on this progress report.

[26] On the next day of this trial this witness provides this court with a copy of
return of non -service on Rodney Sekgobela. The return of non­service was marked
exhibit "B". The witn ess was referred to page 62 -64 of the police docket by his legal
representative, which evidence I don't accept as part of this trial. The reason for not
accepting this evidence by another person as the person whose statement this is
because it cannot be se en as an excuse to not get hold of the person whose
statement this is and then not give a proper reason except to say cannot serve
subpoena on the person to come testify in court.

[27] The witness was the referred to Section 40 of the CPA and was asked wh at
informs the arrest to which he replied: "statement by witnesses implicating the
Plaintiff'.

[28] During cross-examination the witness testified that he is not an expert but that
he was an experienced Police Officer. He was also asked if he knew the gro unds to
arrest a person without a warrant and then he mentioned a few which included
section 40(1)(a) of the CPA. He again confirms that he was not the arresting officer
of the Plaintiff and he further confirms that the Plaintiff was arrested because of
being a suspect to the crime. He was further asked in cross examination what do you
confirm before arrest to which he replied: "suspicion of crime". He also confirms
under cross-examination that a statement of a witness in crime is one of the grounds
for arrest of an accused. He was also referred to page 62 -64 of the police docket
which I, for reasons given later in this judgment, don't accept as part of the evidence.

[29] Under further cross-examination he was asked what page 108 and 109 of the
police docke t is to which he replied: "it is an explanation statement by Freddy
Matthye." The legal representative for the Plaintiff referred the witness firstly to page
91, paragraph 6 of the poli ce docket which is the deceased D/W/O Homu statement

91, paragraph 6 of the poli ce docket which is the deceased D/W/O Homu statement
in which he stated that Freddy Matthye gave him a list of people involved in the
crime which include the Plaintiff. Secondly, he referred the witness to Page 108
paragraph 8 of Freddy Matthye statement i n which he stated that he could not
identify any of the people who were assaulting the deceased. He the witness was
asked: "do you agree these two statements contradicted each other'' to which he
replied: "he does not agree". When asked why not, the witnes s replied: "page 108 is

an explanatory statement written by Freddy Matthye, he (Freddy) was talking and he
was writing". The court then asked what is page 90 and 91 of the police docket, to
which the witness answered: "that it is a sworn statement under oa th by the
deceased D/W/O Homu". He the witness was again asked: "you agree that Freddy
Mathye Paragraph 6 page 108 contradicts Homu's page 91 Paragraph 6", to which
the witness answered: "correct".

[30] In further cross-examination the witness was asked the question that he is not
in a position to assist the court as to what suspicion the arresting officer had when
arresting the Plaintiff. The witness replied: "he is in a position". When asked how can
you assist the court with suspicion of Homu when arrest ing Plaintiff, the witness
replied: "sworn statement by Tinyiko Annickie Dumela".

[31] It was further indicated to the witness that Plaintiff handed himself over to the
police and was not arrested as indicated by the deceased D/W/O Homu in his
statement on page 92 of the police docket.

[32] In re-examination the witness was referred to page 111, paragraph 2 and 4 of
the police docket and ask if that was the statement he was referring to when ask
about the suspicion of deceased arresting officer D/W/O Homu when arresting
Plaintiff to which he confirm.

[33] Paragraph 2 of page 111 of the police docket states the following: " On
Monday 2013.04.29 at about 07:30 I received a call from Ritavi station and informed
that, a certain unknown b/male was assaulted at Mbambamencisi village. The caller
informed me that the unknown b/male has passed away at Letaba hospital where he
was admitted".

[34] Paragraph 4 of page 111 of the police docket states the following: "After
obtaining a statement of the witness b/female Tinyiko Annickie Dumela, I went to
look for the suspects b/males Freddy Matthye and Sadike and I did not found them.
On Wednesday 2013.05.01 at about 09:10 I was at Ritavi police station when b/male

On Wednesday 2013.05.01 at about 09:10 I was at Ritavi police station when b/male
Derrick Sadike Khosa arrived. I explained to him that he was under arrest and further

explained his rights to him after telling him that he is under arrest. I then charged him
and later detained him."

The evidence of Tinyiko Annickie Dumela

[35] This witness testifies that what occurred on the 28 April 2013 wa s "Mob
Justice". When asked the question that the Plaintiff indicated that he did not
participate in "Mob Justice" what did the witness saw, she replied he was involved.
She testified that: "at the time that the assault took place - person trying to run aw ay
- Sadike (Plaintiff) blocked the man and assaulted him with open hand and kicked
him".

[36] The witness was referred to page 68 of the police docket to which she
confirmed that it is her statement that she made and paragraph 2 contains the
following: "On Tuesday 2013.04.30 I submitted two statements, I mention the names
of Rodney and Sadike and I can confirm that they are two different people who both
participated in the assault of the deceased". Paragraph 3 of the same statement
contained the following: "The two above-mentioned b/males are both the residents of
Mbambamencisi village and are my neighbours".

[37] The witness testified in her own words as to what happened on the crime
scene on the 28th April 2013 as follows: " Sunday evening at about 9:30 the evening I
heard a bang on my door. The person said I must open will leave in the morning. I
ask if ever he came to my house. He bang and said please open. I heard people
talking. Son of mine said I must open. I told him I will not open. I then open th e door
three boys were there excluding the deceased. It was Rodney, Sagarika and Justice.
Third person name was Freddy he is criminal stealing. They were assaulting the
person in her presence".

[38] In cross -examination the witness testified that the deceased D/W/O
Homu:"might have written and left out but what she is telling is what she saw." She
was again referred to page 68 of the police docket which is her statement to which

was again referred to page 68 of the police docket which is her statement to which
she confirms the cont ent of paragraph two. When asked in cross examination
regarding the two statements in paragraph two of her statement she replied:" I was

not the one who told the police that I submitted two statements". She further testified
that: "Officer Homu was the one writing statement and submitted I made two
statements". She after giving testimony for some time in the witness stand, was
asked what occurred on the date in question, she then admitted that she made two
statements.

[39] In her further cross -examination the witness was ask if she agrees that the
document on page111 of the police docket and more specifically paragraph four was
not part of the statements before this court in the civil proceedings to which she
replied: "I don't agree -I give evidence"

[40] In re-exam the witness confirmed that she made the first statement on the 29th
April 2013 but could not remember all the content.

Evidence for the Plaintiff

The evidence of Kaizer Lala Shipalang

[41] The testimony of the first witness for the Plaintiff is that of his neighbor.
Herewith the testimony of the witness in his own words: " We were sitting at
homestead drinking. Himself, Sadike and the owner of the homestead went to buy
beer. Before we could reach the Tavern we heard a lot of noise. We said we would
go and see what's happening. When we arrived a lot of people was standing around
a person lying on his back on the ground one shoe missing. We asked amongst the
people who gathered, they said person was assaulted. We asked whether they
called the police- they replied police were taking long time to arrive.
While Sadike was on the phone he said they are coming. We did not stand longer
and proceed to Tavern to buy beer and meat . Back to the homestead together with
Sadike"

[42] The witness in his testi mony denied that Sadike was involved in Mob Justice,
contrary to what the previous witness Tinyiko Annickie Dumela said. His testimony
was that the previous witness gave Sadike (Plaintiff) the number to phone the police.

[43] In cross -examination the witn ess testified that the other person's name
together with him and the Plaintiff at the homestead was Olia Phalula. The witness
was asked why his testimony differs from that of the statement by the Plaintiff to
which he replied: "that's what I say". He again confirms that he was with Plaintiff the
evening of the 28 th April 2013 and he again confirmed that the Plaintiff phoned the
Police from the place the assault occurred.

[44] In re-exam the witness testifi ed that he was not part of the criminal case and
that he did not testify in the criminal case. He was asked again why his testimony
differs from that of Plaintiff to which he replied he doesn't know, and he also doesn't
know what Plaintiff said in his statement.

The evidence of the plaintiff

[45] The Plaintiff answer to the question as to whether he is convenient in English
was: "don't understand". When asked why was he here in court he replied:" I am
here in relation of murder case". When asked to elaborate he replied: "I was arrested
for nothing - don't know anything."

[46] The plaintiff then went on to testify in his own words what occurred on the
evening of the 28 th April 2013. His testimony was : " I was at neighbors home -
passing time. We were going to buy beer at Spasha Shop. When we go to the
Spasha Shop - Someone was screaming for help. We found person laying on ground.
Person was assaulted. I only was able to identify owner of the house where the
person was assaulted. Only wearing T -shirt. I ask the owner if she called the police.
Said yes, it was long time ago three vans all out. He requested contact number of
Police from homeowner. He then called the Police. I explained to female police about
the assault and place. He went to his house. Police p honed him back and ask
directions." The Plaintiff was asked if he was present when the deceased was taken
to hospital,to which he replied: "no". He also testified that the police phoned the next

to hospital,to which he replied: "no". He also testified that the police phoned the next
day to ask him to come into the police station.

[47] The pla intiff was referred to page 85 of the police docket to which he
confirmed it is his signature but denied certain parts of these two paragraphs under

paragraph six on page 85 and more specifically he did not hear anybody shouting as
well as that he heard so mebody calling for help. The plaintiff testified that he never
said that he heard somebody calling for help, he said what he said was: "I was going
to buy beer".

[48] The plaintiff explained that the difference between his testimony in this court
and that of the statement referred to on page 85 of the police docket is, in his own
words: "Police Officer not making it easy - he assaulted him with open hand".

[49] The Plaintiff confirmed that he was not found guilty in the murder criminal trial.

[50] In cross -examination the defendant legal representative firstly try to get the
Plaintiff to deny the legality of the statement which was, that the statement on page
85 of the police docket doesn't contain the truth, secondly that the content of
statement was not what happened , thirdly when asked questions beaten with open
hand and fourthly he was under duress when statement was taken. Plaintiff also
testified that the deceased D/W/O Homu assaulted him. He testified that he did not
tell his current legal representative that D/W/O Homu assaulted him.

[51] The plaintiff further in cross -examination testified that he went with Shipalang
to the Police Station. He was asked if Shipalang was Kaizer to which he replied "yes".
The plaintiff clarifies the word homestead as sometime the home of Kaizer where he
sometimes sleep for the night. The plaintiff further confirms that they went to the
tavern to buy beer. When asked if the plaintiff knew Rodney, he said he saw him.

[52] The plaintiff was further asked questions in cross examination regarding the
statement of Sekgobela, but that statement was not accepted as part of the evidence
for reasons I will give later in this judgment.

Issues

[53] The legal issues for the determination are whether: (i) the plaintiff was lawful
arrested and detained in terms of section 40(1) (b) of the CPA; (ii) the defendant was

arrested and detained in terms of section 40(1) (b) of the CPA; (ii) the defendant was
liable for the plaintiff's continued detention from the date of arrest 1st May 2013 till

date of his discharged on the 17 th November 2016 , (iii) the allowance of Hearsay
Evidence - Section 3(1)(c) of Act 45 Law of Evidence and (iv) reasonable suspicion
of arresting officer.

The lawfulness of the arrest

[54] S40(1)(b) of th e CPA provides that a peace officer may, without a warrant
arrest any person whom he reasonable suspects of having committed an offence
referred to in schedule 1, other than the offence of escaping from lawful custody. The
arrest would be lawful if the arresting officer establishes the jurisdictional factors, and
he/she may invoke the power conferred by section 40(1)(b) to arrest the suspect
unless the plaintiff demonstrates that the discretion to arrest him/her was exercised
unlawfully.4 The jurisdictional requirements for a lawful Arrest under section 40(1) (b)
defence are:

54.1 the arrestor must be a peace officer.
54.2 the arrestor must entertain a suspicion.
54.3 the suspicion must be that the suspect committed a schedule 1 offence;
and
54.4 the suspicion must rest on reasonable grounds.

[55] If the arresting officer succeeds in establishing these jurisdictional factors, the
arrest would be lawful, unless the plaintiff establishes that the discretion to arrest
him/her was exercised in an unlawful manner.5

4 ln Minister of Sa fety and Security v Sekhoto and Another 2011(1) SACR 315 (SCA), Harms DP
quoted with approval the dictum Duncan v Minister of Law and Order at 818H-J and 819A-B where
Van Heerden JA held:" If juris dictional requirements are satisfied, the peace officer may invoke the
power conferred by the subsection ,i.e., he may arrest the suspect. In other words, he then has a
discretion as to whether or not to exercise that power (cf Holgate-Mahomed v Duke [1984] 1 All ER
1054 (HL) at 10576). No doubt his discretion must be properly exercised. But the grounds on which
the exercise of such discretion can be questioned are narrowly circumscribed. Whether every

the exercise of such discretion can be questioned are narrowly circumscribed. Whether every
improper application of a discretion conferred by the s ubsection will render an arrest unlawful, need
not be considered because it does not arise in this case. All that need be said for the purposes of
point under consideration is that an exercise of the discretion in question will be clearly unlawful if the
arrestor knowingly invokes the power to arrest for a purpose not contemplated by the Legislator. But
in such a case, as is generally the rule where the exercise of a discretion is questioned, the onus to
establish the improper object of the arrestor will re st on the arrestee (cf Divisional Commissioner of
SA Police, Witwatersrand Area, and Others v SA Associated Newspapers Ltd and Another
1966 (2) SA 503 (A) at 512; Groenewald v Minister van Justisie 1973 (3) SA 877 (A) at 884)"
5 In Minister of Safety and Security v Sekhoto and Another 2011(1) SACR 315 (SCA) para 30 and 38

If one or more of the jurisdictional factors is/are not met, the arrest would be unlawful.
The relevant enquiry is whether suspicion was reasonable thereby establishing the
jurisdictional factors.6

[56] In the case before this court, it is undisputed that D/W/O Homu was a peace
officer and that the crime assault with intent to do grievous bodily harm and murder
is a s chedule 1 offence. In dispute is whether he, D/W/O Homu entertained a
suspicion that the plaintiff had committed an offence of assault with intent to do
grievous bodily harm and murder. A further aspect of the dispute is whether his
suspicion rested on rea sonable grounds, which must be considered against the
applicable principles and the relevant matrix.

Whether the suspicion was based on reasonable grounds

[57] In Mabona and Another v Minister of Law and Order and Others 7, Jones J
held: "The test of whether a suspicion is reasonable entertained within the meaning
of section 40(1)(b) is objective ( S v Nel and Another 1980 (4) SA 28 E at 33E -H).
Would a reasonable man in the second defendant's position and possessed of the
same information have considered that there were good and sufficient grounds for
suspecting that the plaintiff was guilty of conspiracy to commit robbery or possession
of stolen property knowing it to have been stolen? It seems to me that in evaluating
his information a reasonable man would bear in mind that the section authorizes
drastic police action. It authorizes an arrest on the strength of suspicion and without
the need to swear out a warrant, i.e. something which otherwise would be an
invasion of private rights and personal liberty. The reasonable man will therefore
analyse and assess the quality of the information at his disposal critically, and he will
not accept it lightly or without checking it where it can be checked. It is only after
examination of this kind t hat he will allow himself to entertain a suspicion which will

examination of this kind t hat he will allow himself to entertain a suspicion which will
justify an arrest. This is not to say that the information at his disposal must be of
sufficiently high quality and cogency to engender in him a conviction that the suspect

6 See Nkosinathi Justice Banda v Minister of Police N.O [2020] ZAECGHC 55 para 40)
7 Mabona and Another v Minister of Law and Order 1988(2) SA 654 (SE) at 654 E -H; also
Shaaban Bin Hussein and Others v Chang Fook Kan and Another (1969) 3 All ER 1627 (PC) the
court held: " Suspicio n in its ordinary meaning is a state of conjecture or surmise where proof is
lacking; " I suspect but I cannot prove." Suspicion arises at or near the starting point of an
investigation of which the obtaining of prima facie proof is the end"

is in fact guilty. Th e section requires suspicion but not certainty. However, the
suspicion must be based upon solid grounds. Otherwise, it will be flightly or arbitrary,
and not a reasonable suspicion"

[58] The plaintiff alleges that his arrest was unlawful! and that there w as no justa
causa for his arrest.

Detention

[59] Detention is, in and by itself, unlawful. The onus rests on the detaining officer
to justify it. 8 The Constitutional Court remarked that the question whether the
applicant's detention was consistent with the principle of legality and his right to
freedom and security of the person in section 12 of the Constitution, is a
constitutional matter. S 12(1) of the Constitution guarantees that everyone has the
right to freedom and security of the person, which includes the right not to be
deprived of freedom arbitrarily or without just cause and also not to be detained
without a trial.

[60] The plaintiff alleges that after he was arrested, he was detained for a period of
three (3) years six(6) months and nineteen (19) days as from the 29 th April 2013 to
the 1 7th November 2016.He further alleges that there were no reasonable and/or
objective g rounds justifying his detention. He contends that his detention was
wrongful and without reasonable and probable cause.

[61] In Mvu v Minister of Safety and Security and Another 9 Wills J cited with
approval Hofmeyr v Minister of Justice and Another10 and remarked:

"[10] In Hofmeyr v Minister of Justice and Another King J, as he then was,
held that even where an arrest is lawful, a police officer must apply his mind to
the arrestee's detention and the circumstances relating thereto, and that the
failure by a police officer properly to do so is unlawful. The minister 's appeal

8 Zeeland v Minister of Justice and Constitutional Development and Another 2008 (2) SACR 1
(CC) (2008) (4) SA 458; 2008 (6) BCLR 601) para 24
9 Mvu v Minister of Safety and Security and Another 2009 (2) SACR 291 (GSJ) para 10

9 Mvu v Minister of Safety and Security and Another 2009 (2) SACR 291 (GSJ) para 10
10 Hofmeyr v Minister of Justice and Another 1992 (3) SA 108 (c)

was unanimously dismissed by what was then known as the Appellate
Division of the Supreme Court. It seems to me that, if a police officer must
apply his or her mind to the circumstances relating to a person's detention,
this includes applying his or her mind to the question of whether detention is
necessary at all.
This, it seems to me, and in my very respectful opinion, enables one to get a
better grip on an i ssue which has been debated in the law reports in recent
cases such as Minister of Correctional Services v Tobani; Ralekwa v
Minister of Safety and Security; Louw v Minister of Safety and Security
and Others; Charles v Minister of Safety and Security; Oliv ier V Minister
of Safety and Security; and Van Rensburg v City of Johannesburg.
On the question of unlawful detention per se, as a concept to be considered
separately from the question of arrest, it is my respectful view, instructive to
read the Tobani case in which Jones and Leach JJ, together with Govender
AJ, upheld, in an appeal to the full court, the judgment of Froneman J. I also
agree with the general approach of Horwitz J in the Van Rensburg case even
though, in that case, the facts are distinguisha ble from the present one at
least in as much as a warrant for arrest had been issued."

Further detention from 2nd February 2013 to 17th November 2016

[62] It is common cause between the parties that the Plaintiff was detained for the
whole period from hi s arrest on the 2 nd February 2013 till the 17 th November 2016,
when the court in the criminal trial found the Plaintiff(accused) not guilty.

POLICE LIABILITY ON UNLAWFUL ARREST

[63] JE MAHLANGU and ANOTHER v MINISTER of POLICE 11 the Constitutional
Court discussed the issue of unlawful arrest and detention as follows:

" [25] The prism through which liability for unlawful arrest and detention should
be considered is the constitutional right guaranteed in section 12(1) not to be

11 JE Mahlangu and Another v Minister of Police (2021) ZACC 10

arbitrarily deprived of freedom and security of the person. The right not to be
deprived of freedom arbitrarily or without just cause applies to all pe rsons in
the Republic. These rights, together with the right to human dignity 12, are
fundamental rights entrenched in the Bill of Rights. The state is required to
respect, protect, promote, and fulfil these rights, as well as all other
fundamental rights. 13 They are also part of the founding values upon which
the South African constitutional state is built.14
[26] The police, like any other state functionary in the country for that matter,
are constrained by the principle of legality imposed by the Constituti on and
may not exercise any power nor perform any function beyond that conferred
upon them by law.15 That is the basic component of the rul e of law and one of
founding values of our Constitution.
The impairment of dignity, reputation, humiliation and the deprivation of
freedom of movement and liberty
[27] The unlawful deprivation of liberty, with its accompanying infringement
of the right to human dignity, has always been regarded as a particularly
grave wrong and a serious inroad into the freedom and rights of a person. 16 In
Thandani17 the court said that:
"sight must not be lost of the fact that the liberty of the individual is one of the
fundamental rights of a [person] in a free s ociety which should be jealously
guarded at all times and there is a duty on our Courts to preserve this right
against infringement. Unlawful arrest and detention constitutes a serious
inroad into the freedom and the rights of an individual."18

HEARSAY EVIDENCE UNDER THE 1988 ACT AND THE CONSTITUTION


12 Section 10 of the Constitution states that every person has inherent dignity an d everyone has the
right "to have their dignity respected and protected."
13 Section 7(2) of the Constitution. Note too that section 7(1) provides that "[t] his Bill of Rights is a

cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and
affirms the democratic values of human dignity, equality and freedom".
14 Section 1(a) of the Constitution states that "[t]he Republic of South Africa is one, sovereign state
founded on the following values" in cluding, "human dignity, the achievement of equality and the
advancement of human rights and freedoms"
15 Masetha v President of the Republic of South Africa [2007] ZACC 20; 2008 (1) SA 566 (CC);
2008 (1) BCLR 1 at para 80
16 Peterson v Minister of Safety and Security [2009] JOL 24495 (EGG)
17 Thandani v Minister of Law and Order 1991 (1) SA 702 ( E)
18 Id at para 707 A-B

[64] Section 3 of the 1988 Act provides:

3 Hearsay evidence
(1) Subject to the provisions of any other law, hearsay evidence shall not
be admitted as evidence at criminal or civil proceedings, unless-
(a) each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(b) the person upon whose credibility the probative value of such evidence
depends, himself testifies at such proceedings; or
(c) the court, having regard to-
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon
whose credibility the probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence
might entail; and
(vii) any other factor which should in the opinion of the court be
taken into account,
is of the opinion that such evidence should be admitted in the interest of
justice."

[65] In S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) Cameron JA held : " It
is obvious that the 1988 Act , although pre -constitutional , must so far as possible be
read in the light of the Constitution and to give effect to its fundamental values. The
Constitution requires as much. O nly if the statute's provisions cannot be read
conformably with the Constitution would the question of unconstitutionality arise. In
my view Goldstein J was, however, clearly right to reject the constitutional challenge.
The statute does not license the wh olesale admission of hearsay. Long before the
Constitution came into effect the common law was alert to the dangers such an
approach would have entailed. Not only is hearsay evidence -that is, evidence of a
statement by a person other than a witness which i s relied on to prove what the
statement asserts - not subject to reliability checks applied first -hand testimony

( which dismisses its substantive value), but its reception exposes the party opposing
its proof to the procedural unfairness of not being able to counter effectively
inferences that may be drawn from it.19
For these very reasons, this Court emphasized more than four dec ades ago that
"hearsay, unless it is brought within one of the recognized exceptions, is not
evidence, ie legal evidence, at all".20

[66] Quoted the dictum of Cameron J in S v Ndhlovu and Others 2002 (2) SACR
325 (SCA) at para 14 "The 1988 Act does not change that starting point . Subject to
the framework it creates, its provisions are exclusionary. 21 Hearsay not admitted in
accordance with its provisions is not evidence at all. What the statute does is to
create supple standards within which courts may consider whether the interest of
justice warrants the admission of hearsay notwithstanding the procedural and
substantive disadvantages its reception might entail. The Act thus introduces the
very feature this Court held common law lacked, namely "a principle that the rule
against hearsay may be relaxed or is subject to a general qualification if the Cour t
thinks that the case is one of necessity" (Own emphasis)

[67] "Aside from the importance of these cautionary words, a trial court must in
applying the hearsay provisions of the 1988 Act be scrupulous to ensure respect for
the accused's fundamental right to a fair trial. Safeguards including the following are
important:

• First, a presiding judicial official generally under a duty to prevent a
witness heedlessly giving vent to hearsay evidence . (Own emphasis) More
specifically under the Act, it is the duty of a trial Judge to keep inadmissible

19 See HL Ho "A Theory of Hearsay (1999) 19 Oxford Journal of Legal Studies 402. In Lee v The
Queen (1998) 72 ALJR 1484 the High Court of Australia stated the process point thus (para 32): "And
the concern of the common law is not limited to the quality of evidence, it is a concern about the

matter of trial. One very important reason why the common law sets its face against hearsay evidence
was because otherwise the party against whom the evidence was led could not cross -examine the
maker of the statement. Confrontation and the opportunity for cross -examination is of central
significance to the common law adversarial system of trial"
20 Para 13 S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) and Vulcan Rubber Works (Pty) Ltd
v South African Railways and Harbours 1958 (3) SA 285 (A) 296F (Schreiner JA)
21 S v Ramavhale 1996 (1) SACR 639 (A) at 647 d-e per Shultz JA

evidence out, [and] not to listen passively as the record is turned into a papery
sump of "evidence". (Own emphasis).22

[68] "A further consideration bearing on the constitutionality of the statute is that
this Court has construed th e nature of the power the relevant provisions confer on
judges in a way that underscores the rigorous legal framework within any decision to
admit hearsay evidence will be scrutinised:

" A decision on the admissibility of evidence is, in general, one of l aw, not
discretion, and this Cour t is fully entitled to overrule such a decision by a
lower court if this Court considers it wrong"23 (Own emphasis)

[69] "In making the admission of hearsay evidence subject to broader, more
rational and flexible considerations, the 1988 Act's general approach is moreover in
keeping with the developments in other democratic societies based on human dignity,
equality and freedom.
The Supreme Court of Canada, for instance, has underlined the need for increased
flexibility in interpreting the hearsay rule, and subject to safeguarding the interest of
the accused, has distilled two criteria (reasonable necessity and reliability) go verning
its admission." 24

[70] "The Bill of Rights does not guarantee an entitlement to subject all evidence to
cross-examination. What it contains is the right (subject to limitation in terms of s36)
to 'challenge evidence'. Where that evidence is hearsay, the right entails that the
accused is entitled to resist its admission and to scrutinize its probative value,
including its reliability. The provisions enshrined these entitlements. But where the
interest of justice, constitutionally measured, requires that hearsay evidence be

22 Para 17 S v Ndhlovu and Others 2002 (2) SACR 325 (SCA),Bill of Rights s 35(3), S v Zimmerie en
n ander 1989 (3) SA484 (C) 492F -H (FriedmanJ, Tebbutt and Conradie JJ concurring), S v
Ramavhale 1996 (1) SACR 639 (A) 651c.
23 Para 22 S v Ndhlovu and Others 2002 (2) SACR 325 (SCA), McDonald's Corporation v

23 Para 22 S v Ndhlovu and Others 2002 (2) SACR 325 (SCA), McDonald's Corporation v
Joburgers Drive-Inn Restaurant (Pty) Ltd and another 1997 (1) SA 1 (A) 27E ( EM Grosskopf JA,
Corbett CJ, Nestadt JA, Schultz JA and Plewman AJA concurring)
24 Para 23 S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) ,), In term of s 39(1)(c) of the
Constitution, when interpreting the Bill of Rights a court "may consider foreign law" , Section 36(1)
permits limitation of a right if reason able and justifiable in an open and democratic society based on
human dignity, equality and freedom", R v Khan [1990] 2 SCR 531 (SCC)

admitted, no constitutional right is infringed. Put differently, where the interest of
justice require that the hearsay statement be admitted, the right to 'challenge
evidence' does not encompass the right to cross­ examine the original
declarant".(Own emphasis)25

[71] Quoted the dictum of Cameron J in S v Ndhlovu and Others 2002 (2) SACR
325 (SCA) at para 45: " 'Probative value ' means value for purposes of proof.
This means not only, "what will the hearsay evidence prove if admitted?', but will it
do so reliability?"26

[72] "The high probative value of the evidence in this case, and the objective
guarantees of its reliability, provide the compelling justification that must always be
sought if hearsay evidence is to play a decisive or even significant par t in convicting
an accused" (Own emphasis) 27

[73] In S v Ndhlovu and Others Cameron J cited with approval S v Ndhlovu and
others 2001 (1) SACR 85 (W) and remarked: "But, as Goldstein also observed ,
where the interest of justice require the admission of hearsay, the provision 'does not
require the absence of all prejudice'.28

[74] In McDonald's Coorporation v Joburgers Drive -Inn Restaurant (Pt y) Ltd
and Another, McDonald's Corporation v Dax Prop CC and Another; McDonald's
Corporation v Joburgers Drive -Inn Restaurant (Pty) Ltd and Dax Prop CC 1997
(1) SA 1(A) Grosskopf, JA held: "The matter of hearsay is now governed by statute.
Sec 3 of the Law of Evidence Amendment Act 45 of 1988 provides that hearsay
evidence is admissible, subject to certain exceptions Sec 3 (4) defines "hearsay
evidence" as "evidence, whether oral or in writing, the probative value of which
depends upon the credibility of any other than the person giving such evidence"29

25 Para 23 S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) Compare S v van der Sandt 1997 (2)
SACR 116 (W) 132 b-f
26 Para 45 S v Ndhlovu and Others 2002 (2) SACR 325 (SCA)
27 Para 47 S v Ndhlovu and Others 2002 (2) SACR 325 (SCA)

27 Para 47 S v Ndhlovu and Others 2002 (2) SACR 325 (SCA)
28 Para 51 S v Ndhlovu and Others 2002 (2) SACR 325 (SCA)
29 McDonald's Coorporation v Joburgers Drive -Inn Restaurant (Pty) Ltd and Another,
McDonald's Corporation v Dax Prop CC and Another; McDonald's Corporation v Joburgers
Drive-Inn Restaurant (Pty) Ltd and Dax Prop CC 1997 (1) SA 1(A) page 55-56

Expert Evidence

[75] "The evidence should be admitted, it was argued, because of a scientific
nature, or alternatively, that it relates to a state of mind. In support of latter
proposition reliance was placed on Hollywood Curl (Pty) Ltd and Another v Twins
Products (Pty) Ltd 1989 (1) SA 251 J 252G.
I doubt whether either leg of this argument is correct. It is true that an expert may
sometimes refer to hearsay sources in support of his views. However, if his views
are entirely based on assertions which he obtained from somebody else, it is difficult
to contend that the probative value of his evidence does not depend on the credibility
of such other person.
And in so far as the evidence is said to relate to a state of mind, this may be true in
respect of some replies. It is not necessary, however to pur sue this matter any
further since I consider that, even if it is hearsay, the evidence should have been
admitted under one of the exceptions provided in the statute."30

[76] "This would ,however not be practical course to follow. First, it would require
the evidence of a large number of people. Second, the persons comprising such a
sample should of course have no interest in the outcome of the proceedings" 31

Evidence in Civil/Criminal Matters

[77] "I turn now to the effect to be given to the evidence. The approach of the court
a qua was to analyse each item and to show that, by itself, it has little or no probative
value. In my view this is a wrong approach. We are dealing here with circumsta ntial
evidence. In the well known case of R v De Villiers 1944 AD 495 Davis AJA, dealing
with a similar argument in a criminal crime case, said (at 508-9):


30 McDonald's Coorporation v Joburgers Drive -Inn Restaurant (Pty) Ltd and Another,
McDonald's Corporation v Dax Prop CC and Another; McDonald's Corporation v Joburgers
Drive-Inn Restaurant (Pty) Ltd and Dax Prop CC 1997 (1) SA 1(A) page 57-58
31 McDonald's Coorpo ration v Joburgers Drive -Inn Restaurant (Pty) Ltd and Another,

31 McDonald's Coorpo ration v Joburgers Drive -Inn Restaurant (Pty) Ltd and Another,
McDonald's Corporation v Dax Prop CC and Another; McDonald's Corporation v Joburgers
Drive-Inn Restaurant (Pty) Ltd and Dax Prop CC 1997 (1) SA 1(A) page 59

" The court must not take each circumstance separately and give the accused
the benefit of any reasonable doubt as to the inference to be drawn from each
one so taken. It must carefully weigh the cumulative effect of all of them
together, and it is only after it has done so that the accused is entitled to the
benefit of any reasonable doubt which it may have as to whether the inference
of guilt is the only inference which can reasonably be drawn. To put the matter
in another way; the Crown must satisfy the Court, not that each separate fact
is inconsistent with the innocence of the accused, but that the evidence as a
whole is beyond reasonable doubt inconsistent with such innocence."
Apart from the nature of the onus, the same rules apply of course in civil
cases."32

[78] In S v Libazi and Another 2010 (2) SACR 233 (SCA) D Mlambo, J held" The
ruling by the high court a nd the proper approach to s 3(1)(c) featured prominently
before us. In this regard it was argued that the statement properly construed
amounted to a confession and as such was inadmissible against anyone else other
its maker in terms of the s 217 33 of the Criminal Procedure Act 51 of 1977 (the CPA).
An alternative argument was that if it were found that the statement was not a
confession but an admission, that it was similarly not admissible against the
appellants in terms of s 219A 34 of the CPA.

[79] " In this regard a confession is generally described as

' an unequivocal acknowledgement of guilt, the equivalent of a plea of quilty
before a court of law. On the other hand an admission is referred to as 'a

32 McDonald's Coorporation v Joburgers Drive -Inn Restaurant (Pty) Ltd and Another,
McDonald's Corporation v Dax Prop CC and Another; McDonald's Corporation v Joburgers
Drive-Inn Restaurant (Pty) Ltd and Dax Prop CC 1997 (1) SA 1(A) page 61-62
33 217 Admission of confession by accused
(1) Evidence of any confession made by any person in relation to the commission of any offence shall,

if such confession is proved to have been freely and voluntarily made by such person in his sound
and sober senses and wi thout having been unduly influenced thereto, be admissible in evidence
against such person at criminal proceedings relating to such offence·
34 This section provides: 'Admissibility of admission by accused
(1) Evidence of any admission made extra -judicially by any person in relation to the commission of an
offence shall, if such admission does not constitute a confession of that offence and is proved to have
been voluntarily made by that person, be admissible in adverse evidence is a foundational component
of the fair trial rights regime decreed by our Constitution ins 35(3).

statement or conduct adverse to the person from which it emanates.' These
definitions were approved by the Constitutional Court in S v Molimi. "35

[80] "Our Constitution requires rights to be construed generously to ensure the
widest protection possible. Rights ought not to be cut down by reading implicit
restrictions into them, In -roads into the protection that the right affords should in all
instances be justified. The right to challenge evidence against him at criminal
proceedings relating to that offence: Provided that where the admission is made to a
magistrate and reduced to writing by him or is confirmed and reduced to writing in
the presence of a magistrate, the admission shall , upon the mere production at the
proceedings in question of the document in which the admission is contained-

(a)be admissible in evidence against such person if it appears from such
document that the admission was made by a person whose name
corresponds to that of such person and, in the case of a n admission made to
a magistrate or confirmed in the presence of a magistrate through an
interpreter, if a certificate by the interpreter appears on such document to
effect that he interpreted truly and correctly and to the best of his ability with
regard to the contents of admission and any question put to such person by
the magistrate'

Cross-examination is integral in the armoury placed at the disposal of an accused
person to test, challenge and discredit evidence tendered against him. As
Schwikkard puts it in her analysis of Ndhlovu:

' The right to challenge evidence, in so far as it is an essential characteristic of
an adversarial trial and primarily directed at the truth­ seeking, goes beyond
merely establishing the reliability of hearsay in question."36

35 S v Libazi and Another 2010 (2) SACR 233 (SCA) para 8 , R v Becker 1929 AD 167 at 171 , Du
Toit et al (see footnote 52 in Molimi (CC)),S v Molomi 2008 (2) SACR 76 (CC) para 28 corresponds

to that of such person and, in the case of an admission made to a magistrate or confirmed in the
presence of a magistrate through an interpreter , if a certificate by the interpreter appears on such
document to ef fect that he interpreted truly and correctly and to the best of his ability with regard to
the contents of admission and any question put to such person by the magistrate'
36 S v Libazi and Another 2010 (2) SACR 233 (SCA) para 11, S v Zuma 1995 (2) SA 642 (CC) at
para 14; S v Mahlangu 1995 (3) SA 391 (CC) at para 9; Con stitution 3. Every accused person has a
right to a fair trial, which includes the right- j. to adduce and challenge evidence

[81] "An even more compelling consideration militating against the wholesale
application of the rule in Ndhlovu is rooted in the injunction to courts to treat co -
accused or accomplice evidence with caution. While the prejudice to the accused of
admitting the co -accused statement is very high and limits constitutional rights to
challenge evidence and remain silent, various cautionary rules operate to make the
probative value of the co -accused statement very low. In this regard, it is a widely
acknowledged rule that evidence of an accomplice should be treated with extreme
causion since, as Holmes JA put it: ' First , (the accomplice) i s a self -confessed
criminal. Second, various considerations may lead him falsely to implicate the
accused, for example, a desire to shield a culpit or, particularly where he has not
been sentenced, the hope of clemency.
Third, by reason of his inside knowl edge, he has a deceptive facility for convincing
description - his only fiction being the substitution of the accused for the culprit".37

[82] "Also apposite in this regard are the remarks of this court in Balkwell &
another v S in which it was pointed out that:' Ndlovhu too readily dismissed
concerns expressed in S v Ramavhele 1996 (1) SACR 639 (A), which cautioned (at
649C-D) that a court shoul d hesitate long in admitting hearsay evidence that plays a
decisive or even a significant part in convicting an accused person."38

[83] "For all the aforegoing it is apparent that I do not regard the Ndhlovu
approach as all encompassing. The matter at hand is a case of the classical 'absent
witness' as opposed to Ndlovu and Molimi where the makers of the statements
testified disavowing the statements attributed to them. In our case, Shasha was
clearly an accomplice and did not testify. This effectively emasculated the court from
evaluating the evidence in the statement and applying the necessary cau tionary
rules. This, in my view, clearly mitigated against the admission of the statement as

rules. This, in my view, clearly mitigated against the admission of the statement as
hearsay evidence against the appellants. I also am not persuaded by the state's
argument that the failure by Shasha to testify was mitigated by the evidence of

37 S v Libazi and Another 2010 (2) SACR 233 (SCA) para 14, S v Hlapezula & Others 1965 (4) SA
439 (A) at 440 D-E. See also S v Gentle 2005 (1) SACR 420 (SCA) ; S v Scott -Crossley 2008 (1)
SACR 223 (SCA); S v Makeba and another 2003 (2) SACR 128 (SCA); DT Zeffertt, A P Palzes, A St
Q Skeen The South African Law of Evidence 2003 pp 801-804.
38 S v Libazi and Another 2010 (2) SACR 233 (SCA) para 15

Mbulawa who, the state asserted, could have been cross-examined on the statement
as his evidence, so the submission went, was similar to that contained in the
statement, Strickly speaking this is not factually correct.
Fundamentally, however, Mbulawa was not the author of the statement and he could
conceivably never be cross-examined on its contents,"39

[84] Mashago Dumisani Promise v Passenger Rail Agency of South
Africa …M R Phooko , AJ held" It is now settled that the standard of proof in a civil
case is proof on the balance of probabilities. This entails that the Plainntiff, who
bears the burden of proof, must prove that his version is more probable than that of
the Defendant. Even though the Defendant has some duty to adduce evidence, the
burden of proof remains on the Plaintiff throughout the trial. As was correctly stated
by Van der Spuy in Salamolele v Makhado,:

'It is common cause that the plaintiff bears the overall onus of proof ... it may
be that the defendant has some duty of adducing evidence in support of the
latter version but the onus of proof in the overall case never shifts and
remains on the plaintiff."40

[85] In Zealand v Minister for Justice and Constitutional Development [2008]
ZACC 3; 2008 (2) SACR 1 (CC); 2008 (6) BCLR 601 (CC) at para 25 the
Constitutional Court held that:

" It has long been firmly established in our common law that every
interference with physical liberty is prima facie unlawful. Thus, once the
claimant establishes that an interference has occurred, the burden falls upon
the person causing that interference to establish a ground of justification. In
Minister van Wet en Orde v Matshoba , the Supreme Court of Appeal again
affirmed that principle, and then went on to consider exactly what must be
averred by an applicant complaining of unlawful detention. In absence of any
significant South African authority, Grosskopf JA found the law concerning the

39 S v Libazi and Another 2010 (2) SACR 233 (SCA) para 16

39 S v Libazi and Another 2010 (2) SACR 233 (SCA) para 16
40 Mashago Dumisani Promise v Passenger Rail Agency of South Africa para 12 ; Pillay v
Krishna and Another 1946 (AD) 946 at 952-3; Salamolele v Makhado 1988(2) SA 372 (V), at 374

rei vindication a useful analogy. The simple averment of the plaintiff's
ownership and the fact that his or her property is held by the def endant was
sufficient in such cases. This led that Court to conclude that, since the
common law right to personal freedom was far more fundamental than
ownership, it must be sufficient for a plaintiff who is in detention simply to
plead that he or she is b eing held by the defendant. The onus of justifying the
detention then rest on the defendant. There can be no doubt that this
reasoning applies with equal, if not greater, force under the Constitution."

[86] In Hurley41, the Supreme Court of Appeal stated the following:

"An arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems to be fair and just to require that the person
who arrested or caused the arrest of another person should bear the onus of
proving that his action was justified in law.42

[87] In paragraph 70 of this judgement the Supreme Court of Appeal said in S v
Ndlovu and Others 43 the Bill of Rights contains the right to challenge evidence.
Where that evidence is hearsay, the right entails that t he accused is entitled to resist
its admission and to scrutinize its probative value, including its reliability. The
provisions enshrined these entitlements.

[88] In paragraph 71 of this judgement Cameron J in S v Ndlovu and Others said
at para 45 ; " Pro bative value ' means value for purposes of proof. This means not
only, "what will the hearsay evidence prove if admitted?', but will it do so reliability?"

[89] From the above two mentioned paragraphs the right to challenge evidence,
the probative value, what evidence will proof as well as reliability plays a huge role in
deciding whether hearsay evidence be admitted.


41 Minister of Law and Order v Hurley (1986) ZASCA 53; 1986 (3) SA 568 (A) (Hurley)
42 Id at 589 E-F
43 S v Ndhlovu and Others 2002 (2) SACR 325 (SCA)

[90] The first question to be answered is whether the plaintiff was lawfully arrested
and detained in terms of section 40(1)(b) of the CPA.

[91] If one looks at the requirements as setout in paragraph 54 of this judgement,
one needs to answer each question on its own.

[92] The Paintiff was arrested by D/W/O Homu, who was a policemen in duty of
SAPS and meets the first requirement of a peace officer arresting the accused
(Plaintiff).

[93] The second requirement is that the arrestor (D/W/O Homu ) must entertain
suspicion. The suspicion of D/W/O Homu is one aspect that could not be answered
by himself, since D/W/O Homu is deceased and could not testify at this trial. The
suspicion of D/W/O Homu must be entertained by the evidence of one of his
colleagues ( W/O Marthiharini Jonas Shikwambana), which brings in the question of
hearsay evidence and as to allow it in terms of section 3(1)(c) of Act 4 5 of the Law of
Evidence.

[94] In cross examination W/O Marthiharini Jonas Shikwambana was asked if he
could assist the court to the suspicion of the deceased D/W/O Homu to which he
replied statement of another witness who testified in this trial before t his court a
certain Tinyiko Annickie Dumela.

[95] The third requirement is the suspicion must be that the suspect committed a
schedule 1 offenc e. To answer this question one has to look at the evidence of the
first witness Sgt Jonas Alex Malunganyi who wa s one of the first witnesses to testify
in this trial. The evidence of the witness was that "on their arrival (at the scene of the
crime) they saw the deceased was already assaulted and the assault continued
while they were at the crime scene. They enquire d from the bystanders at the crime
scene as to who assaulted the deceased but no -one came forward to testify as to
what occurred at the crime scene." The question as to whether the crime was a
schedule 1 offence is clearly answered by this witness. It howe ver doesn't answer

schedule 1 offence is clearly answered by this witness. It howe ver doesn't answer
the question as to the suspicion of the arrestor as to the crime of schedule 1 offence.
The evidence given by Tinyiko Annickie Dumela in her statement as setout in

paragraph 36 of this judgement is: "On Tuesday 2013.04.30 I submitted two
statements, I mention the names of Rodney and Sadike and I can confirm that they
are two different people who both participated in the assault of the deceased." This
confirms what was said in paragraph 95 of this judgement.

[96] The fourth requirement t o be answered is: " the suspicion must rest on
reasonable grounds". To answer this question one has to answer the question what
is reasonable grounds. Is reasonable ground, a statement by one witness alleging
what happened at the crime scene enough to arrest a person without a warrant when
two of the suspects who was arrested on the basis of one statement, in their own
statements to the police deny their involvement in the crime.

[97] The aspect of reasonable grounds is discussed in paragraph 57 of this
judgement and as I saw it necessary to repeat the paragraph:" In Mabona and
Another v Minister of Law and Order and Others 44, Jones J held: "The test of
whether a suspicion is reasonable entertained within the meaning of section 40(1)(b)
is objective (S v Nel and Another 1980 (4) SA 28 Eat 33E -H). Would a reasonable
man in the second defendant's position and possessed of the same information have
considered that there were good and sufficient grounds for suspecting that the
plaintiff was guilty of consp iracy to commit robbery or possession of stolen property
knowing it to have been stolen? It seems to me that in evaluating his information a
reasonable man would bear in mind that the section authorizes drastic police action.
It authorizes an arrest on the strength of a suspicion and without the need to swear
out a warrant, i.e. something which otherwise would be an invasion of private rights
and personal liberty. The reasonable man will therefore analyse and assess the
quality of the information at his dis posal critically, and he will not accept it lightly or
without checking it where it can be checked. It is only after examination of this kind

without checking it where it can be checked. It is only after examination of this kind
that he will allow himself to entertain a suspicion which will justify an arrest. This is
not to say that the info rmation at his disposal must be of sufficiently high quality and
cogency to engender in him a conviction that the suspect is in fact guilty. The section

44 Mabona and Another v Minister of Law and Order 1988(2) SA 654 (SE) at 654 E -H; also
Shaaban Bin Hussein and Others v Chang Fook Kan an d Another (1969) 3 All ER 1627 (PC) the
court held: " Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is
lacking; " I suspect but I cannot prove." Suspicion arises at or near the starting point of an
investigation of which the obtaining of prima facie proof is the end"

requires suspicion but not certainty. However, the suspicion must be based upon
solid grounds. Otherwis e, it will be flightly or arbitrary, and not a reasonable
suspicion"

[98] If one looks at the requirement of reasonable grounds one comes to the
conclusion that it is something that cannot be considered lightly.

[99] If reasonable grounds cannot be considered lightly, the question to be
answered then as discussed in paragraph 80 of this judgement and I quote: "Cross -
examination is integral in the armoury placed at the disposal of an accused person to
test, challenge and discredit evidence tendered against him. As Schwikkard puts it in
her analysis of Ndhlovu:

'The right to challenge evidence, in so far as it is an essential characteristic of
an adversarial trial and primarily directed at the truth­ seeking, goes beyond
merely establishing the reliability of hearsay in question."

[100] The evidence lead in this trial and the caselaw quoted in this judgement
makes it clear that the plaintiff was not lawfully arrested and the suspicion is not a
reasonable suspicion and is it flightly and arbitrary as mentioned by the Honourable
Jones J in the Mabona and Another v Minister of Law and Order and Others.

[101] The second question to be answered is: Is the Defendant liable for the Plaintiff
continued detention from date of arrest.

[102] In JE Mahlangu and Another v Minister of Police 45 at paragraph 43 the
Constitutional Court held: " It is now trite that public policy is informed by the
Constitution.46 Our Constitution values freedom, and understandably so when regard
is had to how before the dawn of democracy freedom for the majority of our people
was close to non­ existent. The primacy of" human dignity, the achieveme nt of
equality and the advancement of human rights and freedoms" is recognized in the
founding values contained in section 1 of the Constitution. Section 7(1) of the

45 JE Mahlangu above n 11

45 JE Mahlangu above n 11
46 Barkhuizen v Napier [2007] ZACC 5; 2007(5) SA 323 (CC); 2007 (7) BCLR 69] at para 57

Constitution provides that the Bill of Rights "enshrines the rights of all people in our
country and affirms the democratic values of human dignity, equality and freedom".
These constitutional provisions and the protection in section 12 of the right of
freedom and security of person are at the heart of public policy considerations."

[103] In Woji v Minister of Police 47 the Supreme Cou rt of Appeal said: " In the
context of section 12(1)(a) of the Constitution and the decision by the Constitutional
Court in Zealand , an examination , of the legality of the manner in which the
Magistrate's discretion to further detain Mr Woji was exercised, cannot be precluded
simply by the existence of the Magistrate' order. The Constitutional Court in Zealand
did not require the decisions of the respective Magistrates to be set aside, before the
lawfulness of the appellant's detention could be determined . Once it is clear that the
detention is not justified by acceptable reasons and is without just cause in terms of
section 12(1)(a) of the Constitution, the individual's right not to be deprived of his or
her freedom is established. This would render the i ndividual's detention unlawful for
the purposes of a delictual claim for damages".

[104] In JE Mahlangu and Another v Minister of Police 48 the Constitutional Court
said; "The Minister is therefore, liable to compensate t he applicants for the period of
their detention from the date of their arrest, being 30 May 2005, to the date of their
release on the 10th February 2006".

[105] The witness W/O MJ Shikwambana testimony in paragraph 22 of this
judgement is that the Plaintiff was denied bail due to SAPS 69 indicating that the
Plaintiff had previous convictions for the offence of assault with the intent to do
grievous bodily harm.

[106] The question to be answered is not if the Magistrate rightfully refused the bail
but as stated in Woji49 " if the detention is not justified by acceptable reasons and is

but as stated in Woji49 " if the detention is not justified by acceptable reasons and is

47 Woji v Minister of Police [2014] ZASCA 108; 2015 (1) SACR 409 (SCA) at para 27. See also
Zealand v Minister for Justice and Constitutional Development [2008] ZACC 3; 2008 (2) SACR 1
(CC) ; 2008 (6) BCLR 601 (CC)
48 JE Mahlangu above n 11 at para 49
49 Woji above n 47 at para 27

without just cause in terms of section 12(1)(a) of th e Constitution, the individual's
right not to be deprived of his or her freedom is established."

[107] The detention doesn't start at the Magistrate refusal to deny bail but starts at
the arresting officer D/W/O Homu decision to arrest the Plaintiff and t o keep him in
detention till first date of appearance in court. If D/W/O Homu exercised the caution
that was necessary described in Mabona and Another v Minister of Law and
Order and Others 50 , th e Plaintiff would have never been detained and the
Magistrate decision would never have come into play.

[108] The result of the decision of D/W/O Homu was detention for the Plaintiff for
three (3) years and six(6) months and nineteen (19) days whereafter he was found
not guilty to any crime committed on the 28th April 2013.

[109] The third question to be answered is: The allowance of Hearsay Evidence -
Section 3(1)(c) of Act 45 Law of Evidence.

[110] Paragraph 64 till paragraph 74 in this judgement broadl y discussed the issue
of hearsay evidence and the circumstances under which to allow it as evidence in a
trial.

[111] As already mentioned in paragraph 100 of this judgment, this court doesn't
allow the hearsay evidence on the basis of suspicion.

[112] Section 3(1)(c ) of Act 45,1988 of the Law of Evidence sets out seven aspects
of which the trial court must be aware as to allow hearsay evidence. The first aspect
is nature of the proceedings . The claim in this case is one of delictual damages
caused by an illegal arrest and detention. The second aspect is the nature of the
evidence. The evidence is that of a written statement made by the deceased who
was the arresting officer of the Plaintif. The third aspect is the purpose for which the

50 Mabona and Another v Minister of Law and Order 1988(2) SA 654 (S E) at 654 E -H; also
Shaaban Bin Hussein and Others v Chang Fook Kan and Another (1969) 3 All ER 1627 (PC) the

Shaaban Bin Hussein and Others v Chang Fook Kan and Another (1969) 3 All ER 1627 (PC) the
court held: " Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is
lacking; " I suspect but I cannot prove." Suspi cion arises at or near the starting point of an
investigation of which the obtaining of prima facie proof is the end"

evidence is tender ed. The evidence tendered as hearsay evidence plays a decisive
role in determining the question whether the evidence could be accepted against the
Plaintiff as to whether the arresting officer (deceased) of the Plaintiff legally arrested
the Plaintiff in t erms of the CPA. The fourth aspect is the probative value of the
evidence. This is clearly setout in paragraph 71 of this judgement and I quote:
Probative value ' means value for purposes of proof. This means not only, "what will
the hearsay evidence prove if admitted?', but will it do so reliability?" The fifth aspect
is the reason why the evidence is not given by the person upon whose credibility the
probative value depends. The reason why this evidence is not given by the person is
because the person is deceased. The six aspect is to a party which the admission of
such evidence might entail . The Plaintiff's claim would not succeed if this evidence
was allowed. The seventh aspect is any other factor which should in the opinion of
the court be taken into ac count. This court is of the opinion that no such evidence
exist.

[113] This court also doesn't allow the hearsay evidence when considering all seven
aspects of the allowance of hearsay evidence.

[114] The evidence in this trial and the caselaw quoted in this judgement makes it
clear that the plaintiff is to be compensated for the period of his detention that is from
the date of its arrest, being 29 th April 2013 to the date of his release on 17 th
November 2016.

In the circumstances the following order is made:

1. The Plaintiff's arrest by the Defendant was unlawfull;
2. The Plaintiff's detention from the 29 th April 2013 to the 17 th November
2016 was unlawful!;
3. The Defendant to pay cost as agreed between the parties alternatively
as allowed by the Taxing Master.
4. The quantum hearing of this action is postponed sine die.

JUDGE STROH AJ


Appearance:

For the Plaintiff: R Sithole
Instructed by: Sithole Risuna Attorneys, Polokwane

For the Defendant: P Malatji
Instructed by: State Attorneys, Polokwane

Dates Heard: 22nd-23rd October 2024 and 16th July 2025
Date Reserved: 16th July 2025
Date Delivered: 10th October 2025