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in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER:8812/2019
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO
5 December 2025
In the matter between:
NDWANDWE STHEMBILE PLAINTIFF
And
MINISTER OF POLICE FIRST DEFENDANT
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS SECOND DEFENDANT
Heard: 14 November 2025
Heads of argument filed: 18 and 20 November 2025
Delivered: 5 December 2025
JUDGMENT
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WINDELL J:
Introduction
[1] The plaintiff instituted an action for damages against the Minister of Police and
the National Director of Public Prosecutions arising from alleged unlawful arrest and
detention, and malicious prosecution. The plaintiff claims damages in the amount of R1
215 000.00 for unlawful arrest and detention, and R1 115 000.00 for malicious
prosecution.
[2] In matters of unlawful arrest and detention, the plaintiff is required only to
establish that she was arrested and detained without a warrant; once this is shown, the
onus rests upon the defendant to justify the arrest in terms of section 40(1)(b) of the
Criminal Procedure Act 51 of 1977 (“CPA”).
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[3] The position is different in respect of the claim for malicious prosecution, where
the onus throughout remains on the plaintiff to prove all the elements of the delict,
including the absence of reasonable and probable cause and that the prosecution was
instituted with malice.2
[4] At the commencement of the trial, the defendants applied to amend their plea by
deleting paragraph 4. The amendment substituted the previous denial with an
admission of the arrest and detention, coupled with reliance on statutory justification
under s 40(1)(b) and s 50 of the CPA, as reflected in the Rule 28(1) notice.
1 See Zealand v Minister of Justice and Constitutional Development 2008 (2) SACR 1 (CC).
2 Minister of Justice and Constitutional Development v Moleko [2008] 3 All SA 47 (SCA).
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[5] The amendment did not introduce a new issue, nor did it cause prejudice to the
plaintiff. The basis for the proposed amendment had been ventilated during pre- trial
engagements, and the plaintiff was at all times aware that the lawfulness of the arrest in
terms of s 40(1)(b) was the real issue for adjudication. I accordingly granted the
amendment.
[6] At the pre- trial hearing – later confirmed in open court – the parties agreed that
the plaintiff would lead evidence first, notwithstanding the allocation of the onus. The
trial accordingly proceeded on that basis.
[7] At the close of the plaintiff’s case, the second defendant applied for absolution
from the instance on the claim for malicious prosecution, which application was granted.
The only remaining issue for determination is whether the arrest of the plaintiff on 10
March 2016 and subsequent detention were unlawful.
Background
[8] On 8 March 2016, Mr M […] (“the complainant”), reported an offence of rape at
the Protea Glen Police Station involving his 14- year-old daughter. The minor child was
taken to hospital for medical examination on the same day and a J88 form was
completed by the doctor on duty. The report confirmed an old injury consistent with
vaginal penetration. The following day, 9 March 2016, the complainant made a written
statement, which appears as Annexure A1 in the case docket.
[9] On 10 March 2016, the plaintiff was arrested by Warrant Officer Mabunda. On 11
March 2016, the arresting officer completed the pointing- out and arrest statement
(Annexure A7), and the minor child also made a written statement. The plaintiff made a
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warning statement on 13 March 2016 and appeared in court for the first time on 14
March 2016.
[10] On 21 July 2016, the minor child deposed to an affidavit in which she withdrew
the allegations against the p laintiff. On 25 July 2016, the prosecutor formally withdrew
the charges against the plaintiff in court as a result of the minor child’s withdrawal
statement.
The Evidence
The Plaintiff’s Evidence
[11] The plaintiff, a 33- year- old at the time, testified that on the night of 10 March
2016 she was asleep in her bedroom at her grandmother’s house when she awoke to
voices downstairs. Two police officers entered her room, a male officer first, followed by
a female officer she knew as Refilwe. The male officer informed her that she was under
arrest. When she asked for the reason, none was given. The officers spoke to one
another in isiZulu. She was not handcuffed and was taken to the police station, which
she estimated to be about a kilometre away.
[12] At the police station she heard the officers discussing what offence to charge her
with. One suggested “ rape”, which was the first time she heard any indication of a
charge. She became frightened. The charge office was busy, with a number of people
present. From there she was taken directly to the holding cells.
[13] She was placed alone in a cell at about 22h00. The cell contained a toilet and a
concrete bench. She was handed a document explaining her constitutional rights and
signed it, although, according to her, no one explained its contents. It was at this point
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that she learned for the first time that she was being charged with rape. This
information, she said, shocked her.
[14] The plaintiff remained in custody from Thursday night until she was taken to court
on Monday, 14 March 2016. Over the weekend her grandmother visited and brought her
toiletries and items to wash with. There was an area in the cell where inmates could
bathe. On Sunday afternoon, at around 15h00, a police officer came to take her
statement. She said he smelled strongly of alcohol. She wished to raise concern about
his condition but feared she might be perceived as rude and that it might affect how she
was treated. According to her, the officer told her she could give her version either then
or in court . He questioned her in isiZulu. The process was brief. She stated that the
officer did not read the contents back to her and that she signed it without knowing what
was recorded. She maintained that she did not give any of the incriminating information
later reflected in the warning statement.
[15] On her first appearance at court the plaintiff was unrepresented. The magistrate
explained her right to legal representation but no further questions were posed to her.
On 24 March 2016 she was represented during her bail proceedings. Bail was granted,
but she could not afford to pay it and was transferred to Johannesburg Prison. She
remained incarcerated until 30 March 2016 when bail was eventually paid. She noticed
that the charge sheet alleged that the offence occurred on 8 March 2016—a date
unfamiliar to her. She later learned that the minor child alleged the incident occurred on
1 March 2016. She maintained that on both those dates (both Sundays) she had been
at home, and that on Sundays she routinely attended church.
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[16] The plaintiff denied that she had committed rape against the minor child. She
was informed that it was the minor child who had opened the case against her. She
testified that s he knew the child from church at Green Village, where her family also
attended. She also met the complainant once because he had come to the house on
the Saturday before her arrest. He had come with Z[ …], an usher from church, whom
the plaintiff also knew.
[17] The plaintiff testified that neither the minor child nor the complainant were
present when she was arrested. Outside the house she observed several police
vehicles—about seven by her estimate—and saw a neighbour, L[…] , standing in the
street. She conceded that the child and complainant might have been in one of the
vehicles present, but stated that she did not see them herself.
[18] In due course she learned that the minor child’s first statement had been made
on 11 March 2016, but she said its contents were never put to her. The plaintiff
confirmed that she and the minor child were acquainted and they had known each other
since about 2015. She stated that the minor child would from time to time come to her
grandmother’s house to assist with chores.
[19] She further testified that she became aware of a second statement made by the
minor child in which the latter withdrew the allegations against her. In that statement the
child recorded that she had been in a relationship with the plaintiff and that she still
loved her. The plaintiff denied any such relationship.
[20] Under cross -examination the plaintiff denied ever exchanging contact numbers
with the minor child or communicating with her by phone. She could not recall ever
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having said that she had the child’s phone number but conceded that it was possible
she might have said so absentmindedly and could not remember.
[21] She maintained that she only spoke to the minor child when she came to the
house and denied ever inviting her to visit. When she was confronted with her warning
statement the plaintiff said that the police officer who took the statement was selective
in recording the information. When it was put to her that the statement contained
information such as that she and the minor child met in 2014 and referred to events in
2015, she said she could not explain how those details appeared in the statement as
she did not provide them; the officer had written it himself.
[22] It was put to her that the matter only came to light when the complainant heard
that alcohol had been taken to church. In his statement dated 10 March 2016 the
complainant stated that he opened the case after receiving this information and making
his own enquiries. He alleged that he had seen WhatsApp messages between the
plaintiff and his daughter, saved under the name “My Love.” When he asked his
daughter who the person was, she said it was the plaintiff. He said that when he asked
his daughter when the r elationship began, she said 2015, and that she admitted
sometimes telling her family she was going to school when she was actually going to
the plaintiff’s house. The complainant further alleged that his daughter said the plaintiff
had bought her liquor and dagga, made her drink and smoke, and then put her finger
into the minor child’s vagina. He said the child told him she had not spoken out earlier
because she was afraid. The plaintiff denied all of these allegations.
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[23] The minor child was examined by a doctor on 8 March who completed a J88
form. He found no external injuries except for an old tear at 3’o clock. He concluded that
the clinical genital findings were consistent with old vaginal penetration.
Evidence of Warrant Officer Mabunda
[24] Warrant Officer Mabunda testified for the defendants. She is a member of the
South African Police Service, with 21 years ’ service. She is attached to the Family
Violence, Child Protection and Sexual Offences Unit , where she has served for 19
years.
[25] She explained that on 10 March 2016 she was on duty performing suspect
raiding duties. Members of her unit would assemble at the beginning of a shift, receive
a list of outstanding suspects to be traced, and be issued with the relevant dockets for
those suspects. H er duty was to locate and arrest the persons identified in those
dockets.
[26] On that day, at about 9:00, she reported for duty and was issued with a docket
numbered Protea Glen CAS 187/02/2016, w hich related to an alleged rape involving a
14 ear-old-girl. The suspect identified in the docket was a female, and the complainant
was the child’s father.
[27] According to Warrant Officer Mabunda, when she received the docket it already
contained the complainant’s statement, a completed J88 medical report, and a form
authorising the medical examination. From the statement , she gathered that the child
had been involved in a relationship with an older woman and that the matter was
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reported after the family learned that alcohol had been brought to church and that the
child had been visiting the suspect’s home.
[28] She testified that she first proceeded to the complainant’s address where she
interviewed both the complainant and the minor child. After she confirmed the rape
allegations with the minor child, she went to the plaintiff’s address together with other
officers. The complainant and the minor child accompanied her to the plaintiff’s house.
[29] At the plaintiff’s house they found her asleep. They introduced themselves to the
plaintiff. The minor child pointed the plaintiff out as the perpetrator. She informed the
plaintiff that she was under arrest for rape of a minor child and took her to the police
station. She denied that any improper conduct occurred during the arrest.
[30] According to her, the plaintiff was later detained and processed in accordance
with procedure. She confirmed that the plaintiff was detained over the weekend and
appeared in court on the first court day. She was later released on bail. She was not
directly involved in the taking of the plaintiff’s warning statement and could not comment
on what transpired during that process. She stated that she understood her role to be
locating and apprehending the suspect, and that she believed there were reasonable
grounds to arrest based on the contents of the docket.
[31] Under cross-examination, she maintained that she acted within her powers and
in good faith. She acknowledged that t he minor child’s written statement was only taken
after the arrest and that she was not the one that took down the written statement . She
was therefore not aware of its contents at the time of the arrest. She persisted that she
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acted on the docket information available to her and that she regarded it as sufficient to
justify the arrest.
[32] When questioned about her interview with the minor child prior to the arrest,
Warrant Officer Mabunda explained that she told the child that her father had laid a
complaint and asked her to explain, in her own words, what had happened. The child
told her that she knew the plaintiff through church and that they had exchanged phone
numbers and begun communicating. She further stated that the plaintiff had invited her
to her home. Once there, they sat and watched a movie, and at some point the plaintiff
paused the movie and said they needed to talk. The plaintiff then started kissing her and
inserted her finger in the child’s vagina. This happened a few times on different days.
One day she was visiting the plaintiff as usual and she did not want to have sex. The
plaintiff then forcefully undressed her and inserted her finger in her vagina.
[33] The witness was asked why she interviewed the minor child before the arrest.
She explained that at that stage the docket contained only the complainant’s statement
and the medical documents, but no statement from the minor child herself. She
therefore spoke to the child to obtain her version.
[34] During the interview, the child confirmed what the complainant had told the police
— namely, that the plaintiff sometimes bought her alcohol and dagga. On the strength
of that information, Warrant Officer Mabunda said she was satisfied that a crime had
been committed. She described the child as scared and unsettled, although she could
not say whether this was because of the incident itself or fear of the suspect.
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[35] She explained that after the arrest she took the complainant and minor child
home. She asked the complainant to return with the child the following day after school
so that a formal statement could be taken. After she dropped them off she made her
own written statement in the early hours of the morning. She accepted that the
statement was brief and that it did not record everything she has now testified to. She
said she did not anticipate litigation at the time and focused on noting the pointing- out
by the child and the fact that she had effected the arrest, knowing she might be required
to testify. In the end she was not called as a witness in the criminal case.
[36] She further testified that she did not apply for a warrant of arrest as a police
officer is empowered to arrest without one in terms of the CPA. After speaking to the
complainant and the minor child , and in view of the doctor’s report and Form 308 (in
which the minor child gave a version to the doctor before she was examined) , she was
satisfied that a crime had been committed and that an arrest was justified.
The Applicable Legal Principles
[37] Section 40(1)(b) of the CPA permits a peace officer to arrest without a warrant
any person reasonably suspected of having committed a Schedule 1 offence. Rape is
such an offence. The jurisdictional requirements, as summarised in Duncan v Minister
of Law and Order 3are: (a) the arrestor must be a peace officer; (b) he or she must
entertain a suspicion; (c) that the suspect committed a Schedule 1 offence; and (d) the
suspicion must be based on reasonable grounds.
3 1986 (2) SA 805 (A).
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[38] The test is objective. In Mabona and Another v Minister of Law and Order 4, the
court stressed that the suspicion must rest on “solid grounds” and not be “flighty or
arbitrary”. The Constitutional Court in Sekhoto 5 confirmed that the discretion to arrest
must still be exercised rationally and in a manner consistent with the Bill of Rights, but
emphasised that once the jurisdictional facts exist, the arrest is lawful and the court will
not impose extraneous constraints.
Evaluation
[39] It is common cause that the plaintiff was arrested on 10 March 2016, without a
warrant, on a charge of rape. On the arresting officer’s evidence, the following
information was available to her prior to effecting the arrest: the complainant had
reported allegations involving his 14-year-old daughter (statutory rape as well as sexual
assault); the SAPS 308 form reflected multiple prior incidents; the J88 recorded genital
findings consistent with penetration; a specific incident was said to have occurred on 1
March 2016; and the minor child herself reported the rape to her and identified the
plaintiff as the perpetrator.
[40] Mr Lebea, appearing for the plaintiff, argued that at the time of arrest neither the
minor child’s formal statement nor the complainant’s statement had yet been
commissioned, and that the mother of the minor child had not been interviewed. That is
correct as a matter of chronology. However, the absence of sworn statements or further
interviews at that stage is not dispositive. The law does not require the police to
complete their investigation or to possess statements under oath before arresting a
4 1988 (2) SA 654 (SE)
5 Minister of Safety and Security v Sekhoto 2011 (1) SACR 315 (SCA).
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suspect. The enquiry is whether, on the information then available, the arresting officer
held a reasonable suspicion that the plaintiff had committed a Schedule 1 offence. A
suspicion need not be based on evidence that would sustain a conviction; it must
merely be grounded in objectively verifiable facts capable of inducing such suspicion in
a reasonable officer.
[41] When the information available to the arresting officer is viewed cumulatively, it
amounted to what Mabona v Minister of Law and Order 6 describes as “solid grounds”
for suspicion. The allegations involved a 14- year-old child, the SAPS 308 reflected
multiple prior incidents, the J88 supported concern of possible sexual misconduct, and
the minor child pointed out the plaintiff as the person involved. No reasonable officer
would have dismissed allegations of this nature. The suspicion held was therefore
objectively reasonable.
[42] Counsel for the plaintiff submitted that a less intrusive method, such as a
summons or warrant, ought to have been used. Section 40(1)(b) of the CPA , however,
authorises arrest without a warrant where a reasonable suspicion exists. The Supreme
Court of Appeal in Sekhoto
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securing attendance does not render an arrest unlawful where the statutory
requirements are met. The allegations concerned sexual misconduct against a minor —
a grave offence involving urgency and vulnerability. In those circumstances, the
decision to arrest without a warrant was within the bounds of lawful discretion.
Conclusion
6 1988 (2) SA 654 (SE) at 658.
7 2011 (1) SACR 315 (SCA).
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[43] I am satisfied that the first defendant has discharged the onus of establishing that
the jurisdictional facts for a lawful arrest under section 40(1)(b) existed. The arresting
officer had multiple, corroborating sources of information pointing to repeated sexual
conduct with a minor; she obtained identification of the plaintiff at the scene; and she
acted within both the statute and the constitutional framework.
[44] The plaintiff has therefore failed to establish that her arrest and detention were
wrongful or unlawful.
Costs
[45] The general rule that costs follow the result applies. The plaintiff has been
unsuccessful in her remaining claim. However, I need to place the following on record.
[46] The State did not fully comply with the directive previously issued by this Court
regarding the preparation and filing of certain documentation. They also failed to attend
a further pre- trial ordered by Court. Although this did not affect the outcome, it
contributed to some procedural inefficiency and resulted in additional work for the
plaintiff’s legal team. In these circumstances, and to avoid adding unnecessary
harshness to the result, it would not be just to impose a punitive or elevated cost burden
on the plaintiff.
[47] Taking these factors into account, the most equitable order remains that costs
follow the result, but with the express acknowledgment that nothing in this judgment
reflects adversely on the manner in which the plaintiff’s attorney advanced the case.
[48] In the result the following order is made:
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1. The action is dismissed with costs on Scale B.
_______________________________
L WINDELL
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Delivered: This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand down is deemed to be 5 December 2025.
Appearances
For the plaintiff: M Lebea
Instructed by: Mohale Lebea Attorneys
For the respondents: M. Nduli
Instructed by: The State Attorneys,
Johannesburg
Date of Hearing: 14 November 2025
Date of Judgment: 5 December 2025