IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
(1) REPORTABLE: ;x{! NO
(2) OF INTEREST TO OTHER JUDGES: .JIS'/ NO
(3) REVISED
DATE • 4 November 2025
In the matter between:-
THABISO DICK MOKONE
AND
THE MINISTER OF POLICE
Strijdom J
JUDGMENT
CASE NO: 11971/2020
HEARD ON: 16 August 2025
JUDGMENT: 4 November 2025
PLAINTIFF
DEFENDANT
2
I. This is a civil claim for damages against the defendant arising from an unlawful arrest,
detention and assault of the plaintiff by members of the South African Police Service
(SAPS) who were employees of the defendant.
2. The plaintiff was arrested on 24 July 20 I 9 without a warrant of arrest by police
officers on an alleged charge of possession of a stolen motor vehicle.
3. The plaintiff was subsequently detained by or at the instance of the members of the
SAPS as until 26 July 2019 , after which the charges were w ithdrawn against the
plaintiff.
4. The amended plea was based on a defence contained in section 40(1)(a) of the
Criminal Procedure Act 51 of 1977, (the Act )which provided that "a peace officer
may, w ithout warrant arrest any person (a) who commits or attempts to commit any
offence in his presence.
5. The defendant further denies any liability to the plaintiff and that the members of the
SA PS never assaulted the plaintiff on the date of arrest. The members of the SAPS
only fired a warning shot with the intention of stopping the plaintiff from fleeing. The
defendant abandoned the special plea in terms of Section 3 and 4( I )(a) of Act 40 of
2002.
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6. The plaintiff has two separate claims for damages against the defendant. These claims
are as follows:
6.1 A claim for unlawful arrest and detention of the plaintiff; and
6.2 A claim for damages resulting from the plaintiff being assaulted, (shot) by
members of the SAPS.
7. The claim is premised on vicarious liability, the reason being that the police officers
committed the alleged unlawful acts during the course and scope of their employment
and whilst executing their duties.1
COl\1MON CAUSE FACTS
8. The following facts are common cause between the parties:
8.1 The plaintiff was arrested without a warrant of arrest on 24 July 2019 by
members of the SAPS.
8.2 Plaintiff was shot in his right leg by a member of the SAPS on 24 July 20 I 9;
8.3 Plaintiff was detained at hospital on a charge of possession of a stolen vehicle
from 24 July 2019 until 26 July 2019;
8.4 Charges were withdrawn against plaintiff on 26 July 2019.
1S~UES IN DISPUTE
1 K v Minister of Safety and Security 2005 (3) SA 179 (SCA)
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9. The following issues were in dispute between the parties:
9.1 Whether the arrest and detention of the plaintiff was unlawful;
9.2 Whether the plaintiff was assaulted by members of the SA PS.
EVIDENCE
I 0. Mr Semenya, a Provincial Inspector with five years in rank and nine years in the
D epartment testified that on 24 July 2019 between I 0:00 and 12:00, while on operation
in Eersterust with deceased colleague Constable Masango, he received information
about a stolen Toyota Land Cruiser from Centurion.
11. He noticed the vehicle on Alwy n Road towards Nellmapius but could not recall the
registration. Driving from Garsfontein on Alwyn Road, the Land Cruiser turned left
onto Love D rive. There were three cars behind the Land C ruiser when they approached
it. The Land Cruiser stopped on the shoulder of the road with the engine running; the
driver alighted and entered a grey Polo.
12. The Polo sped off. They activated blue lights and a siren but the Polo did not stop and
they followed. The Polo drove recklessly towards Eerstefabriek road. Inspector
Semenya heard 3 or 4 gunshots possibly from their own vehicle.
13. Whilst tht: cars were still moving , the Polo's doors opened, one passenger ran to the left
and another to the right. The police vehicle was behind the Polo. Only the driver
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remained in the Polo. Inspector Semenya pointed his firearm at the driver and instructed
him to exit with his hands up. The driver complied, opened the door, lifted hands, and
he ordered the driver to lie down.
14. The helicopter arrived searching for the other suspects. One passenger was caught and
brought back, the other passenger ran into a squatter camp but could not be located. He
intended to cuff the driver but he saw that he was bleeding as a result of being shot. An
ambulance was summo ned and assisted the injured driver (plaintiff). Semenya
confirmed that he did not shoot the plaintiff but his colleague Masango did. The plaintiff
was taken to Wilgers Hospital and the passenger to Silverton Police station.
PLAINTIFF'S EVIDENCE
15. The plaintiff testified that he is 31 years old, currently in property development and on
2019 operated logistics and taxi through own company Kawurepi Pty (Ltd).
16. On 24 July 2019 he and his friend were at Menlyn Shopping Centre and left at about
13:30.
17. He was driving a silver-grey Polo sedan not his own car but his friends, a mechanic by
the name of Thabiso Phuti who was fixing his car's radiator leak.
6
18. He was w ith his friend Tshepo Zu lu. He described his route as follows: he turned right
on Atterbury road, left in January Masilela, right in Lynnridge, left in Simon Vermoten
to Mamelodi; after N4, right in Alwyn road and left in Love Drive.
19. On Love drive he noticed a white Golf 7 with blue lights on, three to four cars away
behind him .
20. The Golf 7 overtook the other cars and drove directly behind him. The Go lf7 switched
on his siren, and he heard a gunshot from behind. He slowed down and pulled over to
the left side of the road. He checked the rear window, and the driver of the Golf 7
shouted: ''get out of the car".
2 1. He saw the driver in brownish police uniform, holding a gun. He slowly opened the
driver's door and stepped out of the vehicle with his right foot. Two more shots were
fired; one hit him in his upper right femur, and he fell to the ground. Police officers
came running towards him and he informed them that he could not stand because he
was shot. One of the police officers said he should have shot him in his private parts and
the other one said he should have shot him in the head.
22. The plaintiff was subsequently handcuffed and placed with his back against the vehicle.
His passenger was also handcuffed. The plaintiff was transported by ambulance to
Wilgers Hospital. I le was under police supervision whilst in hospital until 26 July 2019
when the charges were withdrawn against him.
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EVALUATION OF THE EVIDENCE
23. in Stellenbosch Farmer 's Winery Group Limited and Another v Martel CIE and Others
2it was decided that:
"The technique generally employed by courts in resolving factual disputes of this nature
might conveniently be summarized as follows: To come to a conclusion on the disputed
issues a court must make findings on (a) the credibility of the various factual witnesses
(b) their reliability, -and (c) the probabilities."
24. It was submitted by the defendant that the evidence of the plaintiff should be rejected.
No reasons were preferred why the court must reject the evidence of the plaintiff and
why the court must accept the evidence of the defendant.
25. The defendant contended that the arrest was lawful, and it was not necessary for a
warrant of arrest as the police were responding to a tip-off about a stolen vehicle.
26. It was contended by the defendant that its witness has placed evidence before the court
which shows that the plaintiff was an accomplice as he was assisting a person who was
driving a stolen vehicle. The defendant further concluded that it was necessary for the
police officer to fire a warning shot in order for the plaintiff to stop his vehicle but
2 2003 (I) SA 11 (SCA)
8
unfortunately the plaintiff was mistakenly shot. The resultant shooting of the plaintiff
was therefore lawful and justified.
27. Inspector Semenya did not impress me as a reliable and/or credible witness. His
evidence regarding the incident was not free from material contradictions and
discrepancies concerning the details.
28. He testified that wh ilst following the Polo vehicle, shots were fired. He was unable to
explain whether the shots were fired from the police vehicle or the Polo vehicle. When
he was confronted during cross-examination with his written statement,3 he conceded
that it was Constable Masango who fired shots at the Polo.
29. He did not testify that a suspect in the Polo pulled out a firearm and pointed it at them.
In paragraph 5 of his written statement he stated as follows: " The suspect that was
sitting at the rear pulled out a firearm and faced towards us; The crew took out the rifle
and fired a warning shot; then they realized that the suspect pointing his firearm or pistol
at us; that's when my crew fired the second shot which hit the driver ... "
30. It was put to the witness during cross-examination that his evidence in chief is
completely different from the version in his w ritten statement. He was proferred the
opportunity to explain the discrepancies. He answered by stating that he cannot
remember and mu~l hove forgotten v.,hat exactly happened.
3 Exhibit "A"
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31. Inspector Semenya could not explain how the plaintiff was shot in his right leg. It is
highly improbable that if warning shots were fired from behind the Polo when the
plaintiff was in the driver's seat that the plaintiff could have been shot in his right leg.
The version of the plaintiff is more probable that he wa s shot in the right leg when he
alighted from the vehicle.
32. In S v Mafaladisoe en Andere4 the fol lowing was decided in respect of material
differences between witness's evidence and previous statement:
" ... the contradictory versions must be considered and evaluated on a hot istic basis. The
circumstances under which the versions were made , the proven reasons for the
contradictions, the actual effect of the contradictions, with regard to the reliability and
credibility of the witness, the question whether the witness was given a sufficient
opportunity to explain the contradictions and the quality of the explanations and the
connection between the contradictions and the rest of the witness' evidence amongst
other factors, to be taken into consideration and weighed up.''
33. No evidence was tendered by the defendant to corroborate the evidence of inspector
Semen ya. Constable Masango could not testify as he is deceased.
4 2003 (I) SACR 583 (SCA) .
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34. The plaintiff was charged with possession of a stolen motor vehicle. Inspector Semenya
conceded that the Polo was not reported as stolen. He further conceded that he wasn't
the arresting officer and that the plaintiff did not sign the notice of rights in terms of the
Constitution.
35. The plaintiff gave a detailed and thorough account of the incident in a straightforward
manner. He was not seriously cross-examined by counsel for the defendant. He made
a favourable impression on me as an intelligent witness whose account was truthful and
reliable. There is nothing to cast doubt on his veracity concerning the actual incident.
His evidence was credible and free from contradictions and discrepancies.
36. In assessing the probabilities the conclusion seems to me to be inescapable that of the
two versions before me as to what occurred on the day of the incident, the plaintiffs
version is the more probable.
THE ARREST AND DETENTION
37. The defendant relies on section 40(1 )(a) of the CPA which states that a peace
officer may without a warrant of arrest, arrest any person (a) "who commits or
attempts to commit any offence in his presence."
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38. It is trite that arrest and detention are prima facie unlawful in the absence of valid
justification. 5 Once arrest and detention have been admitted or established the .
onus of proving lawfulness rests on the defendant.6
39. The uncontested evidence of the plaintiff indicates, he was driving his mechanic's
Polo vehicle with one passenger, pulled over voluntarily after a warning shot was
fired, and was shot in his right leg while exiting the vehicle.
40. Having accepted the version of the plaintiff, there is no evidence that the plaintiff
comm itted or attempted to commit an offence in the presence of a peace officer.
41 . The test is an objective one and the question to be answered is whether the
arresting officer had direct personal knowledge of sufficient facts at the time of the
arrest on the strength of wh ich it can be conceded that the arrestee had prima facie
comm itted an offence in his presence.
42. Inspector Sememya wasn 't the arresting officer. C onstable Masango who is
deceased was the arresting officer. No evidence was tendered by the arresting
officer that the plaintiff committed an offence or attempted to commit an offence in
his presence. The evidence of inspector Semenya was rejected by this Court. No
evidence was tendered that the plaintiff was in possession of a stolen vehicle.
THE ASSAULT
s G ellman v Minister of Safety and Security Case no: A3009 /2007, SAFLI , par 51
6 Cele v Minister of Safety and Security [2007] 3 ALL SA 365 (D)
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43. It is trite that every infringement of the bodily integrity is prima facie unlawful. Once
the infringement is proved, the onus rests on the defendant to prove grounds of
justifying the assault.
44. It is common cause that the plaintiff was shot in his right leg by the police and was
subsequently taken to the hospital.
45. The uncontested evidence of the plaintiff is that he was shot in the upper right femur
after complying with an order to exit his vehicle. It is also common cause that the
plaintiff was not in possession of a firearm.
46. No evidence was tendered by defendant to show that the plaintiff poses a threat of
violence to the arrestor or any other person. The assault on the plaintiff in my view
was not reasonably necessary and proportional in the circumstances.
47. On a conspectus of all the evidence before me I concluded that the defendant failed
to discharge its onus to prove on a balance of probabilities that the arrest, detention
and assault on the plaintiff was lawful.
48. In the result, the following order is made:
( 1) The defendant is held liable for 100% of the plaintiff's proven or agreed
damages for unlawful arrest and detention.
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(2) The defendant is held liable for 100% of the plaintiffs proven or agreed
damages for the assault suffered by the plaintiff.
(3) Costs of the suit, including costs of counsel on scale B.
& ~omJJ
Judge of the Hight Court, South Africa
Gauteng Division, Pretoria
Apf.iearances:
For the plaintiff: Adv RA Britz
Instructed by: Branden Swanepoel Attorneys
For the defendant: Adv LB Maphelela
Instructed by: State Attorney, Pretoria