REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOU TH AFRICA ,
GAUTENG DIVISION, JOHANNESBURG
CASE NO : A2024-14040 7
( l) REPORT AB LE: NO
(2) OF INTEREST TO OTHER JUDGES : NO
(3) REVISED: NO
24 N ove m ber 2025
In the m atter between
CLEMEN T MAFELO MOGOMOT SI
Appellant
And
MOGALE CITY LOCAL MUNICIPALIT Y
JUDGMENT
Respondent
Mdalana -Ma yisela J
Introduction
[1] This is an appeal against the who le of the judgment and order of Magistrate
F Ishmael sitting in the Mohale City Magistrate's Court, Krugersdorp, delivered
on 25 July 2024. The trial court dismissed the appe llant's action for dam ages
arising from his alleged unlawful arrest and detention on 16 March 2020.
[2] The application for condonation for the late filing of the appea l record is
unopposed. The affidavit of M r. Naidoo sets out a satisfactory explanation for
the delay, which was primarily due to administrative and logistical challenges
in obtaining a complete and compliant transcript from the transcribers and the
court. The application is granted.
Bac kground
[3] The material facts are largely common cause. On 16 March 2020, the
appellant. together with four other passengers, w as driving from Maga lies burg
to Kagiso township. He was stopped by the respondent's traffic officers for a •
routine vehicle check. He was requested to produce his driver's license, and
he comp lied. The officers determined that the font size on his vehicle's number
plates did not conform to SABS specifications. Officer Seiso proceeded to issue
a summons in terms of section 56 of the Criminal Procedure Act 51 of 1977 ("the
CPA") .
[4] The central dispute of fact at the trial concerned the events that followed.
The appellant testified that he provided his name and address, but Officer
Seiso stated he was speaking too fast. Upon repeating his details, the appellant
addressed Officer Seise as "muna" [an informal term for "my man"). Officer
Seiso took offence, deemed this disrespectful, and thereafter ignored the
appellant. The appellant. aggrieved by this conduct, informed Officer Seiso
that he was leaving to report him to the Krugersdorp traffic department and
then did so.
[5] The respondent's version, as given by Officers Seiso and Matlhaga, was that
the appellant refused to provide his address, became aggressive, tried to grab
his driver's license back, and then fled the scene without warning.
[6] It is a common cause that the appellant drove directly to the respondent's
Traffic Department. The very officers he had encountered at the roadside
arrived shortly thereafter and arrested him. He was detained at the
Krugersdorp police station from approximately 16:40 on 16 March until his
release on police bail around 17:00 on 17 March 2020. The charges against him
were subsequently withdrawn.
The judgment of the court a quo
[7] The trial court accepted the respondent's version in material respects. It
found that the appellant, by speaking fast, knew the officer would be unable
to write down his particulars, and that this was "tantamount to not complying."
It further found that leaving the scene without permission was unlawful. On this
basis, citing the offences of the non-compliant number plate and failure to
comply with instructions, it concluded that the arrest was lawful.
Grounds of appeal and issues for determination
[8] The appellant raises numerous grounds of appeal, which can be expressed
in the following core issues:
[8.1] Whether the trial court misdirected itself in its factual findings and its
application of the principle for resolving disputed facts as set out in
Stellenbosch Farmers' Winery Group Ltd and Another v Martell & Cie SA and
Others 1.
[8.2] Whether the trial court erred in law by finding that the respondent had
discharged the onus of proving that the arrest was lawful under section 40 of
the CPA.
1 (427/01) [2002) ZASCA 98; 2003 (1) SA 11 (SCA) para 5.
[8.3) What the appropriate quantum of damages is, should the a ppeal
succeed.
Evaluation
[9] It is trite that the Court of Appeal should not lightly interfere with the factual
findings of a trial court. It must recognize and respect the advantages which
the trial court enjoyed by virtue of having seen, heard, and appraised the
witnesses, and it must accept the trial court's findings of tact, in the absence
of a demonstrab le and ma terial misdirection by the trial court. However, this
principle is not absolute. Where a trial court's assessment of facts is
fundamentally flawed, or where it has drawn inferences that are not supported
by evidence or the probabilities, an Appeal Court is not only entitled but
obliged to intervene.2
[ l O] The trial court committed a material misdirection on the facts. Its key
factual finding, that the appellant's act of talking fast was a deliberate ploy to
avoid comp liance, canno t be sustained. This inference is not only speculative
but is also overwhe lm ingly contradicted by the objective probabilities. The
mo st compelling objective fact is that the appellant, immedia tely after leaving
the scene, drove directly to the Traffic Department. This conduct is entirely
consistent with his version of how he intended to file a complaint. It is who lly
inconsistent with the conduct of a person who was seeking to evade the
issuance of a fine. The trial court's failure to afford this crucial fact the we ight it
deserved constitutes a clear misdirection.
( 11] Furthermore, the respondent's own evidence was contradictory. Officer
Seizo initially testified that the appellant refused to give his address, yet the OB
entry and the notice of rights, both comp leted by the respondent's officers,
contained the appellant's correct full name . Officer Mat lhaga's evidence on
who received the phone call and the precise reasons for the arrests was
inconsistent with that of Officer Seiso. The trial court did not adequa tely
inconsistent with that of Officer Seiso. The trial court did not adequa tely
2 Sonia m Bpk v Bid dulph 2004 (5) SA 586 (SCA) (23 March 2024).
address these material contradictions, which undermine the credibility and
reliability of the respondent's witnesses.
[12] The lawfulness of the arrest is the cornerstone of the appeal. The
respondent bore the burden of proving that the arrest was lawful. For a
warrantless arrest under section 40( 1) of the CPA, the arresting officer must
have had reasonable suspicion that a Schedule 1 offence had been
coll)mitted or must have witnessed the commission of an offence.
[13] The respondent's pleaded justification was the "failure to furnish
information" and "escaping from the scene whilst the officer is issuing a
summons." The court a quo added "failure to comply with instructions" and
the initial number plate infringement.
[14] None of these grounds, individually or collectively, justify the arrest in the
circumstances of this case for the following reasons:
[14.1] The number plate infringement was a minor traffic offence, for which the
section 56 summons being prepared was the prescribed and proportionate
response. An arrest for such a minor infringement is disproportionate and
unlawful.
[14.2] Failure to furnish information (s 41 of the CPA ) or failure to comply with
the instructions of the traffic officer (s 3J of the National Road Traffic Act 93 of .
1996) are regulatory offences. They are not Schedule 1 offences and, in the
context of a minor traffic stop where the offender's identity is known (via his
driver's license), do not warrant the severe intrusion of an arrest. The finding
that "talking fast" constitutes an offence justifying arrest is a fundamental error
of law.
[14.3] Escaping from the scene or leaving without permission is not, in these
circumstances, the equivalent of escaping from lawful custody. The appellant
was not under arrest at the roadside. His conduct, even on the respondent's
version, was at worst disrespectful and uncoop erative, but it did not rise to the
level of a serious offence justifying the drastic step of a warrantless arrest.
[15] The constitutional context is paramount. Section 12(1 )(a) of the
Cons titution of the Republic of South Africa provides that everyone has a right
to freedom and security of the person, which includes not to be deprived of
freedom arbitrarily or without just cause. As reiterated in Minister of Safety and
Security v Sekhoto,3 while peace officers have a discretion to arrest, that
discretion must be exercised properly and rationally. Arrest is a measure of last
resort, not a first port of call for securing a-person's attendance in court for
minor offences, especially where, as here, the person's identity and address
are readily ascertainable.
(16} The arrest of the appellant at the Traffic department, the very place he
had gone to assert his rights, was, in the circumstances, arbitrary and punitive.
The respondent failed to prove the existence of any jurisdictional fact under
section 40( l) of the CPA that could render this arrest lawful. Consequen tly, the
arrest and the ensuing detention were unlawful.
Quantum
[ 17} The appellant claimed damages in the sum of R 175,000. 00. The primary
purpose of such an award is to provide so/atium for the injured feelings of the
plaintiff, the indignity, humiliation, and loss of personal liberty.
[ 18} I have considered the circumstances: the appellant was detained for
approximately 26 hours; the conditions of his detention were described as
atrocious, involving overcrowding, dirt, and a non-functional toilet; the arrest
itself was aggravated by its context, occurring while he was attempting to
lodge a complaint. I have also considered the comparative case law provided
by both parties.
(19] The respondent's contention that an award of R20,000.00 would be
app ropriate is so detached from contemporary awards for similar deprivations
of liberty that it is untenable. Recent authorities, such as Diljan v Minister of
Police, 4 support significantly higher awards. Having considered all the factors,
3 2011 {1) SACR 315.
3 2011 {1) SACR 315.
4 (2022] ZASCA 103 (24 June 2022).
including the duration, conditions, and aggravating features of the arrest
context, I find that an award of R50,000.00 is fair and commensurate with the
injury suffered.
ORDER
[20] In the result, the follow ing order is made;
1 . The application for condonation for the late filing of the appea l record is
granted.
2. The appeal is upheld with costs.
3. The judgment of the Magistrate's Court for the district of Mogale City,
Krugersdorp, under the case number 2752/20, is set aside and replaced with
the following.
"l. The plaintiff's arrest on 16 March 2020 and his subsequent detention until 17
March 2020 are declared unlawful.
2. The defendant is ordered to pay general damages to the plaintiff in the sum
of RS0,000.00 (fifty thousand rand) together with interest thereon at the legal
rate calculated from 25 July 2024.
3. The defendant is ordered to pay the plaintiff's costs of suit in the lower court."
I agree
MMP Mdalana-Mayisela
Judge ofthe High Court
Gauteng Division
J Dre er
Acting Judge of the High Court
Gauteng Division
Digitally delivered by uploading to Caselines and emailing to the parties.
Date of hearing: 7 August 2025
Date of delivery: 24 November 2025
Appearances:
For the appellant: Mr L Naidoo
Instructed by: Logan Naidoo Attorneys
For the respondent: Adv S Mfeka
Instructed by: Ntanga Nkuhlu Incorporated