IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
Not Reportable
CASE NO. CA 25/2025
In the matter between:
THANDANI JALI Appellant
(Plaintiff in court a quo)
and
MINISTER OF POLICE Respondent
(Defendant in court a quo)
FULL COURT APPEAL JUDGMENT
BRAUNS AJ
[1] This is an appeal, with leave of the court a quo, against the dismissal of
the appellant’s claim for damages arising from his alleged unlawful arrest
and detention. The trial court dismissed the action and ordered the
appellant to pay the respondent’s costs1.
[2] The issues before this Court are whether the trial court correctly
determined the point at which the appellant was arrested, whether the
arrest was justified, whether the arresting officer was entitled to rely on
protective custody, and whether the subsequent detention was lawful.
[3] While the trial in the court a quo focused primarily on the merits, this
Court on appeal must determine both the merits and the issue of quantum.
For that purpose, it is appropriate first to set out the evidence adduced at
trial, as it informs the Court’s assessment of both aspects.
[4] The background facts are largely common cause. The appellant alleges
that he was arrested without a warrant on 5 February 2018 and detained
until 6 September 2018 2 . He contends that the arrest was malicious,
alternatively effected without reasonable grounds, and that the arresting
officer failed to exercise a proper discretion before depriving him of his
liberty.
[5] The respondent relied on section 40(1)(b) of the Criminal Procedure Act
51 of 1977, contending that the arresting officer reasonably suspected the
appellant of having committed a Schedule 1 offence. On that basis, it was
pleaded that the arrest was lawful, and that any detention beyond the
appellant’s first court appearance was by order of the magistrate.
1 It is worth indicating that the citations used for the parties in the judgment will remain as in the court
a quo.
2 This is the claim as is apparent from sub paragraph 4.2, page 6 of the index of record of the court a
Quo. However, From the evidence provided in the transcription, the plaintiff was detained from 5
February 2018 until his release on 6 September 2018 [ page 127]
[6] Against this background, the respondent bore the onus of establishing the
lawfulness of the arrest. The trial court held t hat the onus had been
discharged. The appellant contends on appeal that this conclusion was
wrong in law and in fact.
In the court a quo
Defendant’s evidence
[7] The defendant led the evidence of only one witness, Sergeant Ntanjana
“Ntanjana” as the other witness it had intended to call, Mrs Nontozana
Mary Ndabambi was deceased.
[8] The testimony under oath by Ntanjana was the following – he was
stationed at Sulenkama SAPS, and was both the arresting officer and the
investigating officer. He testified that on 5 February 2018 he attended the
scene at Gwadana locality following the fatal shooting of Novulile
Ndabambi. He arrived on the scene at the same time as the hearse and he
approached Warrant Officer Totoyi “WO Totoyi” who showed him the
place where th e deceased was shot. Ntanjana asked WO Totoyi whether
he saw the cartridge or a projectile in the house and his answer was in the
negative. No projectile or cartridge was at/ on the scene. Ntanjana
enquired as to what happened, WO Totoyi informed him that, there were
shots fired and that he had interviewed the plaintiff, who then advised
that, somebody fired shots and he did not see who it was. Ntanjana
proceeded to further inspect the scene and the deceased and then decided
to leave the scene.
[9] As Ntanjana attempted to leave, a large group of community members
blocked his vehicle, insisting he return to question the plaintiff regarding
the person who killed the deceased. Ntanjana found the plaintiff among
community members and asked him directly who fired t he shot. The
plaintiff referred to his prior statement to WO Totoyi and refused to
answer Ntanjana. The community claimed that the plaintiff was the one
who killed Novulile Ndabambi “Novulile”. Ntanjana, familiar with the
plaintiff, questioned him at the s cene. The plaintiff declined to elaborate,
stating he had already made a statement to WO Totoyi, and thereafter,
surrendered his licensed firearm at Ntanjana’s request. Gunshot residue
swabs were taken, with the plaintiff volunteering that he had washed hi s
hands after assisting the deceased.
[10] Ntanjana informed the community that the plaintiff denied knowledge.
The community insisted that if he were released, they would have to
intervene. Ntanjana then instructed the plaintiff to get into the police
vehicle to answer further questions at the station. Ntanjana regarded this
as a credible threat to the plaintiff’s life.
[11] At Sulenkama Police Station 3, Ntanjana told the court that he left the
plaintiff in the back of the police van while he attended to another matter4
and thereafter in the afternoon took the plaintiff to Sulenkama to be
interviewed. During the interview, the plaintiff told Ntanjana that he was
sitting with the deceased’s mother when the deceased went outside to
fetch his firearm. Gunshots were then heard. He found the deceased
3 Herein after called Sulenkama
4 In Jali’s testimony under cross-examination, he specifically disputed Ntanjana’s version about being
left in a police van:
• Jali said: he was taken from the scene to Sulenkama police station and placed directly into the cells,
not left in a police van. He denied Ntanjana’s claim that he was detained in the back of a van until
around 3–4 a.m.
• Ntanjana’s version: was that, after the arrest, he left Jali in the police van at Sulenkama while he
attended another matter, and only later (around 3–4 a.m.) returned and interviewed him one-on-one.
• Jali’s denial: he insisted this never happened; that he was taken straight into the cells upon arrival at
Sulenkama and only saw officers again the next morning.
bleeding, attempted to render assistance, and left with his firearm to seek
transport. He suggested that the deceased may have shot herself.
[12] Ntanjana observed material contradictions between the plaintiff'
explanation to h im, his earlier statement to WO Totyi, and the account
given by the deceased’s mother — who alleged that the plaintiff and the
deceased left together shortly before the shooting. Ntanjana considered it
suspicious that the plaintiff removed his firearm from the scene and
washed his hands, thereby interfering with forensic examination.
[13] Having identified no other suspects, and being satisfied that the plaintiff’s
firearm was involved, Ntanjana arrested the plaintiff on charges of
murder and defeating the ends of justice. He informed the plaintiff of his
constitutional rights. Ntanjana opposed bail in light of the seriousness of
the offence and the volatile community situation.
Plaintiff’s evidence
[14] The plaintiff was the only witness in support of his case and denied any
involvement in the deceased’s death. He testified that he was a local sub -
headman at Gwadana and knew Sergeant Ntanjana personally. On 5
February 2018, his partner Novulile was shot and killed. He testified that
he was in the kitchen with the deceased’s mother when the deceased went
outside to fetch his firearm. He heard gunshots, found the deceased
bleeding, and tried to assist her. He stated that she had earlier taken his
licensed firearm, and when he heard a gunshot, he ran to find her lying
injured. He tried to assist her and later washed his hands because they
were bloody.
[15] Police and community members arrived shortly thereafter. Community
members accused him of killing Novulile. He denied any involvement,
insisting she had shot herself with his firearm. When Ntanjana questioned
him at the scene, he declined to repeat his account, saying he had already
made a statement to WO Totoyi.
[16] The plaintiff testified that Ntanjana disarmed and arrested him, allegedly
to protect him from an angry crowd, after which he was taken to
Sulenkama, informed that he was a suspect, and later detained.He
maintained that he had never threatened Novulile, ha d no reason to harm
her, and that the police failed to investigate alternative explanations for
her death. He described his detention as harsh, citing poor cell conditions,
lack of food and bedding, and humiliation, and he claimed the arrest was
unjustified because Ntanjana had no evidence linking him to the shooting
apart from community suspicion and the fact that the gun was his.
[17] He emphasised that he had fully cooperated with police and believed the
case was mishandled from the outset. He admitted remo ving his firearm
from the scene, but explained that this was to find transport and assist the
deceased, adding that he had earlier entrusted the firearm to her for
safekeeping. He alleged that his arrest was unlawful and based solely on
community pressure rather than any reasonable suspicion, stressing that
his voluntary surrender of the firearm, willingness to submit to
questioning, and consent to residue testing showed there was no risk of
flight or obstruction of justice.
[18] The plaintiff disputed the pol ice assertion that his statements were
contradictory, contending that any discrepancies were either immaterial
or misinterpreted.
On appeal
The Grounds of Appeal
[19] Paraphrased for present purposes, the appellant’s grounds of appeal are
that the court a quo erred in the following respects:
(a) In finding that the respondent had a reasonable suspicion when
arresting the appellant,
(b) In finding that there is no legal requirement that such information
for purposes of forming a suspicion must be in writing,
(c) In finding that the respondent effected the arrest on the appellant
on the scene without verifying any information to establish its
reasonableness,
(d) Failed to reject the version of the respondent that he arrested the
applicant on the scene for his protective custody, and
(e) Failed to reject the respondent’s version that the appellant was
only arrested after he had interviewed the appellant.
The parties’ submission on appeal
[20] Mr Sintwa, for the plaintiff argued that the removal of the plaintiff from
the scene and being placed into a police vehicle constituted an arrest and
that there was no threat to the plaintiff’s life because just before Ntanjana
placed the plaintiff in the vehicle, Ntanjana was already leavingthe scene
as there was no suspect at that stage.
[21] Mr Sambudla, when questioned by the court regarding the deprivation of
liberty of the appellant at the scene already, conceded that it in fact
constituted an arrest. This after Ntanjana had already decided that there
was in fact, no suspect and that further i nvestigation would have to be
done. There was accordingly no suspicion let alone a reasonable
suspicion at the time the appellant was actually arrested
Legal Framework
[22] It is the arrestor effecting an arrest without a warrant in terms of s40(1)
(b) of the CPA that bears onus to justify the arrest 5 . In doing so the
arrestor must establish the jurisdictional facts for s 40(1)(b) as stated in
Minister of Safety and Security v Sekhoto 6 in the following terms: “As
was held in Duncan v Minister of Law a nd Order 1986 (2) SA 805 (A)
(1986 (2) SA 805 (a) at 818G -H), the jurisdictional facts for a s 40(1)(b)
defence are that (i) the arrestor must be a peace officer; (ii) the arrestor
must entertain suspicion; (iii) the suspicion must be that the suspect (the
arrestee) committed an offence referred to in Schedule 1; and (iv) the
suspicion must rest on reasonable grounds….”
[23] In Mabona and Another v Minister of Law -and-Order 7 the court
explained that the suspicion must be formed on factual grounds that
would sa tisfy a reasonable person, and not merely on an officer’s
intuition or community sentiment. As the Court held (at 658E–F):
5 Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A)
6 and Another 2011 (1) SACR 315 (SCA)
7 1988 (2) SA 654 (SE)
“The test is not whether the arresting officer believed that he had reason
to suspect, but whether on an objective assessment of the facts at his
disposal, a reasonable person would also have suspected that an offence
had been committed.”
[24] Writing for the majority in De Klerk v Minister of Police 8, Theron J said:
The lawfulness of the respondent’s arrest and detention are an issue
before us and it is necessary to re -iterate the general principles relating to
a claim under actio iniuriarum such as the present.
‘[14] A claim under the actio iniuriarum for unlawful arrest and
detention has specific requirements:
(a) the plaintiff must establish that their liberty has been interfered with;
(b) the plaintiff must establish that this interference occurred
intentionally. In claims for unlawful arrest, a plaintiff need only show
that the defendant acted intentionally in depriving th eir liberty and not
that the defendant knew that it was wrongful to do so;
(c) the deprivation of liberty must be wrongful, with the onus falling on
the defendant to show why it is not; and
(d) the plaintiff must establish that the conduct of the defendant must have
caused, both legally and factually, the harm for which compensation is
sought.’
[25] Furthermore, in a judgment of this division, per Mbenenge JP in Van
Rooyen v Minister of Police 9 the following was stated: “ The onus of
justifying the detention r ested on the respondent, (the Minister of
Police)”. It follows therefore that if the arrest was unlawful the detention
8 2020 (1) SACR 1 (CC)
9 2020 (2) SACR 608 (ECM)
until the first appearance in court would be unlawful. It is now settled that
the purpose of arrest is to bring the arrestee before the c ourt, for the court
to determine whether the arrestee ought to be detained further for
example pending further investigations or trial.
Analysis
[26] In the case of Minister of Police v Mjali 10, the respondents, over and
above proving the fact of their arrest and detention by the members of the
defendant, also had to establish that they suffered damages as a result of
the said arrest and detention ( factual causation ) and that the wrongful
conduct of the appellant was closely connected to the harm they suffered
(legal causation). This had to be done by way of adducing oral evidence.
[27] In determining the lawfulness of the arrest and detention, what is required
to be proven by the party who bears the onus is whether they took place
within the confines of what the l aw allows, and whether they violated the
constitutionally enshrined right to personal liberty. When the issue to be
determined is the quantum of damages to be awarded for the violation of
a person’s liberty, evidence of the conditions under which a person was
arrested and detained plays a significant part11.
[28] The issue on appeal is whether Ntanjana, acting on behalf of the
defendant, had a reasonable suspicion as contemplated in section 40(1)(b)
of the CPA when arresting the appellant, without a warrant on a charge of
murder.
10 CA91/2022) [2023] ZAECMHC 58 (7 November 2023)
11 op cit para 35
[29] Ntanjana, at the scene of the crime took the appellant and placed him at
the back of his vehicle, this was the point at which there was a
deprivation of liberty of the appellant and not when the appellant was
already at the police station. The interview was conducted well after the
fact that Ntanjana had declared that there was no suspect.
[30] It is trite that any depriva tion of liberty is prima facie unlawful, and the
onus rests on the arresting officer to justify such arrest 12. While section
40(1)(b) permits a peace officer to arrest any person reasonably suspected
of having committed a Schedule 1 offence, such suspicion must be
objectively reasonable and based on specific, verifiable facts rather than
conjecture or community sentiment13.
[31] While Sergeant Ntanjana testified that he perceived a threat from the
community and removed the plaintiff from the scene for his own s afety,
the act of placing him in a police vehicle without consent, informing him
that he would be questioned, and subsequently detaining him overnight
— all without legal justification — constituted an arrest.
[32] The Criminal Procedure Act does not recognise "protective custody" as a
lawful ground for arrest under section 40(1)(b). Arrest must be predicated
on a reasonable suspicion of a Schedule 1 offence, not on speculative
threats or fears of mob justice.
[33] In Minister of Police v Du Plessis 14, the SCA conf irmed that even a
benign motive for deprivation of liberty cannot override constitutional
and statutory safeguards. The end cannot justify the means. The police
could have ensured the appellant’s safety by alternative, less invasive
12 Minister of Law and Order v Hurley 1986 (3) SA 568 (A) at 589E–F
13 Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 819I
14 [2014] ZASCA 119 at para 21
means — including escorting him or arranging temporary safe housing —
short of arrest.
[34] The courts have emphasised that arrest on an untested or speculative
suspicion is impermissible. In Ramakulukusha v Commander, Venda
National Force 15 , it was held that, where circumstances pe rmit,
reasonable steps must be taken to verify a suspicion before resorting to
the extraordinary power of arrest without a warrant. Manala v Minister of
Police16 reaffirmed that readily available information must be evaluated
before exercising the power to arrest. Similarly, Montjane v Minister of
Police 17 held that an exculpatory explanation provided by a suspect
should, where feasible, be investigated before the decision to arrest. Fear
of vigilante action, however pressing, is not a lawful justification f or
arrest under section 40(1)(b).
Applying these principles, the evidence shows that the arrest of the
appellant was effected before any substantive interview or verification of
his account. Ntanjana was confronted by an angry community demanding
the appe llant’s arrest. At that point, nothing implicated the appellant,
Ntanjana conceded as much since he was stopped by the community
whilst leaving the scene without having identified any suspect or forming
any suspicion.
[35] The only trigger for the arrest was accordingly community pressure, not
specific and articulable facts that would justify a reasonable suspicion of
murder.
15 1989 (2) SA 813 (V)
16 2021 (2) SACR 38 (GJ)
17 2015 (2) SACR 255 (GP)
[36] On an objective assessment, Ntanjana did not have reasonable grounds to
suspect the plaintiff of having committed a Schedule 1 offence at the time
of arrest. The suspicion was premature, formed before minimal
investigation, and improperly influenced by public sentiment.
[37] South African jurisprudence is clear that the absence of a proper inquiry
renders suspicion flighty or arbitrary 18Community fear cannot convert
speculation into reasonable suspicion 19 . While the threshold for
reasonable suspicion is low 20 , it nonetheless requires specific and
articulable facts capable of objective evaluation. These were lacking at
the time the appellant was deprived of his liberty.
[38] The defendant has therefore failed to discharge the onus of showing that
the arrest was lawful under section 40(1)(b) of the CPA. The arrest was
arbitrary and in violation of the plaintif f’s constitutional right to freedom
and security of the person under section 12 of the Constitution.
[39] In accepting that the defendant has failed to discharge the onus of proving
the lawfulness of the initial arrest and detention, it follows that the appeal
must succeed. The Court accordingly turns to the period of detention and
the issue of quantum, which must be determined in light of the
appellant’s unlawful arrest and detention.
[40] It is first, also necessary to distinguish between the plaintiff’s initial
detention by the police from 5 to 6 February 2018, when he was held
overnight at Sulenkama, and his subsequent prolonged incarceration as an
awaiting-trial prisoner until 6 September 2018. The first period of
18 FN 11, 12 and 13
19 FN 4 at para 28
20 Duncan v Minister of Law-and-Order 1986 (2) SA 805 (A) (1986 (2) SA 805 (a) at 818G-H)
detention, though brief, remains unlawful if the arrest itself was unlawful,
and it frames the later question of whether the extended incarceration can
be said to flow from the initial arrest.
[41] The initial detention followed directly from the unlawful arrest and
constituted a deprivation of liberty whi ch the respondent bore the onus to
justify. Having failed to do so, this period of detention must be regarded
as unlawful.
[42] The law is clear that detention by the police up to the first court
appearance forms part of the arrest and must be justified by the arrestor21.
Where the arrest is unlawful, the concomitant initial detention is equally
unlawful. The appellant’s overnight detention from 5 to 6 February 2018
is therefore compensable and will be taken into account in the assessment
of quantum.
[43] When th e appellant appeared in court for the first time, there was a
statement by the deceased’s mother which contradicted the appellant’s
version given to Ntanjana and there was also a discrepancy between the
version given to the two officers. The appellant fail ed to demonstrate that
it was the wrongful conduct of the police that led to his further detention
by the court.
Quantum
21 see De Klerk v Minister of Police 2020 (1) SACR 1 (CC); Van Rooyen v Minister of Police 2020 (2) SACR
608 (ECM)
[44] The Constitutional Court in De Klerk 22confirmed that police liability for
detention usually extends until the first court appearance. Beyond that
point, responsibility for continued incarceration lies with the court, not
the arresting officer unless proven otherwise. This principle has been
affirmed in Van Rooyen 23 and applied consistently in subsequent
jurisprudence. In this matter, the appellant’s detention after 6 February
2018 resulted from the magistrate’s remand orders following the refusal
of bail. That later incarceration cannot be laid at the door of the
respondent and does not form part of the compensable period.
[45] The relevant period for damages is thus the overnight police detention
from 5 to 6 February 2018. Although brief, it constituted an unlawful
deprivation of liberty and was ag gravated by the conditions of detention
described by the appellant — overcrowded and unhygienic cells, no
bedding, inadequate food, and the humiliation of being treated as a
criminal despite his standing as a community leader24.
[46] An award of R 35,000 aligns with comparable case law. In Seymour25, the
Supreme Court of Appeal reduced an award for five days’ detention to
R90,000, underscoring that damages must be fair and not unduly
generous.
Costs
22 FN 07
23 Minister of Police 2020 (2) SACR 608 (ECM)
24 South African courts have recognised that even short unlawful detentions are a serious affront to
dignity and personal liberty (Zealand v Minister of Justice and Constitutional Development 2008 (4) SA
458 (CC); Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA)).
25 FN 25
[47] As to costs, the general principle under South African law is that costs
follow the result, meaning that the successful party is ordinarily entitled
to an award of costs 26.This principle, however, is flexible and subject to
judicial discretion depending on factors such as a party’s conduct, the
technicality of success, or the nature of the litigation27.
[48] In the present appeal, there are no circumstances warranting a deviation
from the general rule, and it is equitable and consistent with jurisprudence
that the successful appellant, be entitled to his costs both in this Court and
in the court a quo, which should include the costs of counsel.
[49] Resultantly the following order is made: -
1. The appeal is upheld.
2. The order of the court a quo is set aside and replaced with the
following-
a. The defendant is liable for damages suffered by the
plaintiff resulting from his unlawful arrest and detention
from 05 February 2018 to 06 February 2018.
b. The defendant, to pay, within 30 days from the date of this
order, an amount of R 35 000,00 for dama ges suffered by
the plaintiff resulting from his unlawful arrest and
detention.
26 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others [1996] ZACC 27; 1996
2) SA 621 (CC); 1996 (4) BCLR 441 (CC)) SAFLI.
27 R v City of Matlosana [2016] ZAGPPHC 658; para 17–18) SAFLII
c. This award of damages shall attract interest at the
prescribed legal rate calculated from the date of this
judgment to date of payment.
3. The defendant is ordered to pay the appellant’s costs of the
appeal, including the costs of counsel on Scale A of Rule 67A.
_________________
L R Brauns
ACTING JUDGE OF THE HIGH COURT
I AGREE,
_________________
FBA DAWOOD
JUDGE OF THE HIGH COURT
I AGREE,
_________________
N CENGANI-MBAKAZA
ACTING JUDGE OF THE HIGH COURT
DATE OF APPEAL : 04 August 2025
DATE OF JUDGMENT : 06 November 2025
Appearances:
Counsel For Plaintiff : S Sintwa with N Gama
Attorneys for Appellant M. Velembo Attorneys Inc.
Counsel For Respondent : LL Sambudla with N Mtshizana
Attorney for Respondent The State Attorney – Mthatha