IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 2882/2018
In the matter between:
SIMPIWE MEXWELL SABANI 1st Plaintiff
AKIWE TIYA 2nd Plaintiff
LWANELE NGEBULANA 3rd Plaintiff
and
MINISTER OF POLICE Defendant
JUDGMENT
Zono AJ:
Introduction
[1] The plaintiffs are three major male South African citizens who instituted
their separate action proceedings for their assault, arrest and detention by
members of South African Police Service (SAPS) under case numbers
2882/2018, 5251/2018 and 1635/2019. The defendant is sued as a nominal
defendant; as an executive authority responsible for the department of
police1. It is averred that he is liable for the delicts and wrongs of the police
or members of SAPS acting within the course and scope of their
employment with him or Department of police.
[2] In the course of time, an application for consolidation was made or brought
apparently by the plaintiffs, who were applicants therein, and that
application culminated in a court order dated 25 th February 2020,
consolidating the three separate actions under case number 2882/2018. In
recognition of the consolidation order the plaintiffs amended their
particulars of claim to, inter alia, reflect one joint action by the plaintiffs
under case number 2882/2018. The amended particulars of claim are dated
06th September 2023. That was followed by the filing of defendant’s
amended plea dated 03 rd November 2025. The amended plea also
acknowledged the fact of consolidation. No replication was delivered by
the plaintiffs.
Pleadings
[3] The plaintiffs plead in their amended particulars of claim that on 10 th
February 2018 they were travelling in a Toyota quantum (Taxi) and when
the taxi was stationary, they was approached by members of SAPS who
demanded to search it. The members manhandled the plaintiffs out of the
Taxi and assaulted them by kicking and hitting them with clenched fists
without any reasons, and then left. The plaintiffs after taking photos of
number plate of the police vehicle, drove to central police station to report
1 Section 2 of State Liability Act 20 of 1957, as amended.
the incident. The members chased the plaintiffs and caught them at central
police station where they were arrested in front of other police officers and
community members and charged for obstructing the course of justice.
They were thereafte r detained in the police cells that were extremely
unhygienic. The conditions in the cells were appalling.
[4] On 12th February 2018 the plaintiffs were taken to Mthatha Magistrate’s
Court where they were detained in the holding cells from 08:00 to 16:00 .
At 16:30 the plaintiffs were instructed by the police to go as the senior
public prosecutor declined to prosecute. The plaintiffs hold the view that
their arrest and detention were unlawful and wrongful, for the members did
not have the warrant of arrest and search warrant. They aver that they did
not commit any offence. Equally, they aver that their assault was wrongful,
unlawful and malicious.
[5] In its plea, the defendant aver that this matter belongs to Magistrate’s
Court. The defendant admits that the members arrested the plaintiffs
together with Sinoyolo Titi. The defendant avers that the plaintiffs’ taxi
was stationery on the road. However, the defendant denies ever assaulting
the plaintiffs. The defendant further avers that the members started chasing
plaintiffs’ taxi when it started swerving in front of the police van near
Cicira College. The plaintiffs insulted the members. The defendant avers
that the plaintiffs were released on 12 th February 2018 at 11:30. The
defendant denies that the arrest and detention was unlawful as they rely on
the provisions of section 40(1) (a) and (b) of the CPA in that the plaintiffs
were driving recklessly and negligently in the presence of the police. When
the police tried to stop the taxi in which the plaintiffs were travelling, it did
not stop and they chased it. When they caught it at Central Police Station
one (1) round of live ammunition was found in the taxi. The plaintiffs
refuted knowledge or ownership of the live ammunition. The defendant
further avers that the arrest was lawful because the plaintiffs violated the
Road Traffic Rules in the presence of the police.
[6] During trial the parties indicated that there shall be no separation of issues-
both liability and quantum would be dealt with simultaneou sly. It was
further agreed that the onus of proof in respect of the assault rests on the
plaintiffs, and the onus of proof in respect of the arrest and detention rests
on the defendant. However, it was further agreed that plaintiffs bear a duty
to begin2. Rule 39(13) of URC provides thus:
“13. Where the onus of adducing evidence on one or more of the issues is on
the plaintiff and that of adducing evidence on any other issue is on the
defendant, the plaintiff shall first call his evidence on any issues in respect of
which the onus is upon him, and may then close his case. The defendant, if
absolution from the instance is not granted, shall, if he does not close his case,
thereupon call his evidence on all issues in respect of which such onus is upon
him”.
[7] There is one crucial aspect that needs attention as I have alluded to above
that only Simpiwe Sabani, the first plaintiff and Akiwe Tiya, testified in
their trial. Lwanele Ngebulana did not testify. I may mention that the
plaintiffs are listed in the court process and notices in a haphazard and
confusing manner. In some instances, Akiwe Tiya is the second plaintiff
and in others he is the third Plaintiff, exchanging those positions with
Lwanele Ngebulana. For purposes of t his judgment, Akiwe Tiya is the
second plaintiff and Lwanele Ngebulana is the third plaintiff. Both Counsel
could not explain the confusing listing and reference to the two plaintiffs.
2 Rule 39(13) of URC.
However, Simpiwe Mexwell Sabani consistently remained the first
plaintiff.
Evidence
[8] The first plaintiff, Simpiwe Sabani, testified as follows: On or about 10 th
February 2018 (Saturday) at about 15H00 they, as plaintiffs, were in their
neighbours taxi from Mthatha. When they were at Chris Hani Village,
Section B, the la st commuter alighted. It is at that time the police’s mini
Bus (Nissan) emerged. The police officers therein violently approached
their taxi, asking them as to why they stopped their motor vehicle on the
road. They opened the drivers and passenger doors. T he plaintiffs were
thereafter assaulted by the police and were forcefully removed and taken
out of the taxi. He testified that he was slapped with open hands and
dragged out of the taxi as he was seated at the back seat. They then ran
away leaving the taxi on the road. They return to their taxi after the police
had left. Realizing that what the police did to them was wrong, they decided
to follow the police vehicle for purposes of obtaining its registration letters
and numbers. They would use those registration letters and numbers to lay
criminal charges of assault against the police officials who were in the
police mini bus.
[9] They saw the police vehicle next to the turn to the airport and they followed
it to the airport direction. They took the regis tration letters and numbers
and turned back. It transpired that the police saw them when they were
turning back and they also turned to chase them. The plaintiffs sped off as
they were being chased by the police. He testified also that they were
speeding to Central Police Station to lay charges. They arrived at Central
Police Station almost at the same time with the police who were chasing
them. They then ran inside the police station. As the plaintiffs ran for a
cover behind the police station counter, the police officers who were
chasing them grabbed them from behind the counter and took them outside.
They were handcuffed and caused to stay there for some time as the police
officers were conversing to each other. They were then taken back to the
police station and the police officers said: “ these are taxi violence young
men.” They were then taken to Nelson Mandela Hospital in the police
vehicle for blood extraction to test alcohol level in the blood. However,
they were taken back to Central Police Station, leaving only the driver at
the Hospital for blood extraction.
[10] At central police station, the plaintiffs were detained. On 11 th February
2018 (the following day), their finger prints were taken. On 12 th February
2018 (Monday) the plaintiffs were taken to court, where they were kept in
the holding cells until afternoon when they were advised to go as free men.
They were never take n to court. He testified that he does not know the
charges he was facing, but when they were still at Central Police Station he
saw something written in one of the documents, “ defeating the ends of
justice”. He denied that there was ever a mention of a liv e round of
ammunition found in their taxi.
[11] In cross examination, the first plaintiff denied that they stopped their motor
vehicle in the middle of the road obstructing the traffic. He denied that the
police officers shouted, advising them to stop on the road side and that a
hooter was blown as a result of which they ran away. He testified that they
followed the police vehicle and made a U-turn just behind it after they had
taken the registration letters and numbers. He denied that they insulted the
police and attempted to block their way. He testified that they did not open
the criminal case even after they were released from police custody. They
were discouraged by their apprehension of bias as the police at the police
station did not intervene when they were roughly handled. He admitted
signing the warming statement and notice of rights, but denied that they
were advised of their Constitutional rights.
[12] Akhiwe Tiya, next testified. Akhiwe Tiya is the second plaintiff. He
testified as follows:
On 10 th February 2018 at about 15H00, he together with other
plaintiffs were passengers in a taxi from Mthatha. When the taxi was
dropping off the last passenger at Vuka Street, Chris Hani Village,
he saw a number of police officers in front of their taxi a s it was
stationery. They opened the doors and started beating them by
kicking and slapping them with open hands and they ran away to
different directions leaving the taxi on the road. They returned to the
taxi when the police officers had left. He testified that the road was
narrow, but another vehicle was and would be able to pass. As they
were returning he complained of the conduct of the police who
assaulted them. They were accused of having parked a motor vehicle
on the road when they were not drivers. They decided to follow the
police vehicle for purposes of taking its registration letters and
numbers as they wanted to open a case against the police officers for
they had assaulted them without any basis. They found the police
vehicle next to Cicira Col lege enroute to airport. He took the
registration letters and numbers with a pen and they turned back to
the direction of Mthatha. They turned back just behind the police
vehicle to rush to central police station.
[13] Apparently the police saw them and they also made a U -turn and chased
them. When the plaintiffs arrived at Central Police Station premises the
police officers were also arriving. They ran into the Police Station where
Lwanele and Simpiwe (other plaintiffs) jumped over the counter as they
thought that the police would further assault them. The police apprehended
and handcuffed them and took them to the police vehicle. As they were
there, the police conversed to each other and then called the taxi driver.
They went to the taxi with the driver and searched it. They thereafter took
the plaintiffs to Nelson Mandela Hospital for blood extraction. At Nelson
Mandela the police talked among themselves and thereafter took the driver
to one of the rooms leaving them standing at the passage. After 30 minutes,
the Police officers came back and took them to Central Police Station
where they told them to call their next of kins and advise them that they
were under arrest.
[14] They were caused to sign a document containing their rights and no one
explained those rights. They were then taken to the cells for detention. They
were charged on 11 th February 2018 (Sunday) and further detained until
Monday, 12th February 2018 when they were taken to court, where they
were kept in the holding cells. At about 11:00 the driver was taken out to
court and he came back stating that he was admitted to bail in the amount
of R850.00. A lady police officer told the plaintiffs to leave at about 16:00.
Akhiwe questioned their release without being taken to court. Nothing
thereafter happened about the case.
[15] In cross examination, Akhiwe denied that the police activated the siren and
that they shouted that the taxi must be moved from the road and that the
police alighted only when the taxi driver was not responding. He den ied
that they ran away as the police were approaching them. He added that if
the fault of wrongly stopping the vehicle was with the driver, it would not
be necessary for them to run away. He confirmed that the police vehicle
drove pass their taxi as there was a space to do so, although there were
potholes. He denied that they blocked the way of the police officers when
they wanted to search the taxi. He stated that they were in no position to
do so as they were handcuffed. The police talked with the driver about the
search, and not them. He denied that they were advised of their rights. He
denied that at police station the police found them in the taxi or next to it.
They found the plaintiffs inside the police station. He denied that the police
demanded to search the taxi when they were arriving at police station.
[16] Plaintiff’s case was closed without the evidence of Lwanele Ngebulana
who is the third plaintiff. That failure has a bearing on the nature of the
order I shall grant.
[17] The defendant ope ned his case and called the evidence of the arresting
officer, Sergeant Siyabulela Mputa, who testified that: on 10 th February
2018 he and his colleagues were on the road between Mthatha and Bedford
when they came across a taxi standing in the middle of the road with some
occupants inside. Their driver activated the siren and turned on blue lights,
shouting to the driver of the taxi to move his vehicle. The Taxi driver did
not move the vehicle and the police went out of their vehicle to establish
from the taxi driver as to the problem. Before arriving at the taxi the taxi
occupants ran away. The police looked through taxi widows and thereafter
went back to their vehicle. They drove pass the taxi and then joined R61
towards Airport as they were going to their work place at group 46. When
at Dosi junction, next to Cicira College, the same taxi emerged and drove
next and parallel to their vehicle and the youngmen inside the taxi peeped
through their windows pointing fingers and hurling insults at them. They
sometimes would attempt to bump the police vehicle with their taxi. It
then drove infront of the police vehicle and when police vehicle stopped
they turned back to Mthatha direction. The police then also turn to chase
them. They activated the siren, flickering lights with a view to stop them
to no avail. The taxi ultimately got into Central Police Station Premises.
[18] At Central Police Station premises, the police officers approached the taxi,
others towards the driver’s side and others towards the pa ssenger door.
They then introduced themselves and requested to search the taxi and the
driver thereof consented. The youngmen who were passengers behind the
driver’s seat opened the door and stopped at the entrance, as they were
insulting the police. The police requested to search the motor vehicle and
their bodies. They continued with their insults and condescendence. They
refused to be searched and the search to be conducted in the taxi. The police
then told them that they are under arrest for obstructing the course of
justice. The plaintiffs were then arrested and were processed inside the
Central Police Station. They were informed of their rights and the reason
for their arrest. They signed their notices of rights.
[19] The police took the plaintiffs to the cells for detention. A police officer in
charge of the cells asked if the plaintiffs were not injured before they could
be recorded in the register and when it was clear that they were not injured
the plaintiffs were registered in the cell register. The police thereafter left
the plaintiffs in the police cells and the arresting officer, Sergeant Mputa
did not come across that case again. After cross examination of this witness
the defendant closed his case.
Discussion and Analysis
[20] As stated a bove the plaintiffs sue the defendant for the wrongs of the
members of SAPS. The defendant is sued for unlawful arrest and detention
of the plaintiffs from 10th February 2018 to 12th February 2018 as well as
the assault. I propose to deal with the claim of unlawful arrest and detention
first; and thereafter deal with the claim of assault. I will deal with the
quantum and costs at the tail end.
Unlawful arrest and detention
[21] It is trite that the onus rests on a defendant to justify an arrest 3. As Rabie
CJ explained in Hurley4
“An arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems 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.”
The parties are ad idem that the defendant herein bears the onus to prove
that plaintiffs’ arrest was justified in law. It is so because the arrest is not
in dispute and that the fact that it was carried out without a warrant is not
gainsaid. The defendant, in an attempt to discharge his onus, relied in his
3 Minister of Safety and Security v Sekhoto and another 2011 (1) SACR 315 SCA; 2011 (5) SA 367 SCA Para
7
4 Minister of law and Order v Hurley 1986 (3) SA 568 (A) at 589 E-F
plea on the provisions of section 40(1) (a) and (b) of the CPA. From the
onset it is important to state that during argument defendant’s counsel
jettisoned the defence based on section 40(1)(b) of the CPA. No reliance is
placed on those provisions. That leaves us only with a defence based on
section 40(1)(a) of the CPA.
[22] Section 40(1)(a) of the CPA provides thus:
“(1) A peace officer may without warrant arrest any person-
(a) who commits or attempts to commit any offence in his presence.”
The jurisdictional facts for section 40(1) (a) defence is that (i) The arrestor
must be a peace officer (ii) There must be an offence committed or an
attempt to commit an offence (iii) In the presence of the peace officer. The
aforesaid jurisdictional facts must all be present for an arrest to be lawful.
In the event that one jurisdictional fact is not present, the arrest is not
justified. They must all co-exist for an arrest to be justified.
[23] It is uppermost that reference must be made to the defendant’s amended
plea to establish the kind of a case that the plaintiff was called upon to
meet. Reliance on section 40(1)(a) of the CPA is underpinned by the
following pleaded facts:
“14. In amplification, the defendant avers that the arrest was in terms of section
40(1)(a) and (b) of the CP A (the Act) in that the plaintiffs motor vehicle drove
recklessly and negligently in the presence of the police officers.
15. Secondly, the when the police tried to stop the motor vehicle, it did not stop
and they started chasing it.
16. Thirdly, when the police ultimately caught the motor vehicle at the central
police station, they searched it and found one round of live am munition inside
the car.
17.Lastly, when the police questioned the occupants of the plaintiffs
motor vehicle about the ownership of the live ammunition and the licence,
they all disowned it hence the police arrested all of them including Titi Sinoyolo
who is not cited in the proceedings” (sic).
[24] In the whole tenor of his evidence, Sergeant Mputa did not advert to and
rely on the pleaded facts as the basis for the arrest. He categorically
testified that he arrested the plaintiffs solely because, at Central Police
Station, the plaintiffs refused to allow them to search or that the plaintiffs
blocked them when they sought to search them and their taxi, thereby
committing an offence of defeating the ends of justice or obstructing the
course of justice. The contents of the police docket preponderantly refer to
an offence of defeating the ends of justice. No other offence is referred to
in the docket. There is demonstrably an internal conflict in defendant’s
case. Defendant’s plea is not in synch with both the defendant’s evidence
(Sergeant Mputa) and the police docket. Warning statements and notices of
rights refer to the offence of defeating the ends of justice as an offence with
which the plaintiffs were charged. That attests clearly to the fact that the
police docket and the oral testimony of the defendant’s witness on the one
hand and the defendant’s pleas on the other are at variance.
[25] It is apposite to refer to the case of SFW5, where Nienaber JA had this
to say:
“[5] On the central issue, as to what the parties actually decided, there are
two irreconcilable versions. So too on a number of peripheral areas of
dispute which may have a bearing on the probabilities. The technique
generally employed by courts in resolving factual disputes of this nature
may conveniently be summarised 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
the various factual witnesses; (b) their reliability; and (c) the
5 Stellenbosch Farmers Winery Group Ltd and another v Martell et CIE and others 2002 (1) SA 11 (SCA) Para
5.
probabilities. As to (a), the court’s finding on the credibility of a
particular witness will depend on its impression about the veracity of
the witness. That in turn will depend on a variety of subsidiary factors,
not necessarily in order of importance, such as (i) the witness’s candour
and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii)
internal contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with established fact or with
his own extracur ial statements or actions, (v) the probability or
improbability of particular aspects of his version, (vi) the calibre and
cogency of his performance compared to that of other witnesses
testifying about the same incident or events. As to (b), a witness’s
reliability will depend, apart from the factors mentioned under (a)(ii),
(iv) and (v) above, on (i) the opportunities he had to experience or
observe the event in question and (ii) the quality, integrity and
independence of his recall thereof. As to (c), this necessitates an analysis
and evaluation of the probability or improbability of each party’s
version on each of the disputed issues. In the light of its assessment of
(a), (b) and (c) the court will then, as a final step, determine whether the
party burdened with the onus of proof has succeeded in discharging it.
The hard case, which will doubtless be the rare one, occurs when a
court’s credibility findings compel it in one direction and its evaluation
of the general probabilities in another. The more convincing the former,
the less convincing will be the latter. But when all factors are equipoised
probabilities prevail.”
I have dealt above with the internal contradictions between
defendant’s plea and Sergeant Mputa’s evidence. Defendant’s amended
plea is definitely irreconcilable with the defendant’s witness oral
testimony and that leads to a dilemma as to why were the plaintiffs arrested
testimony and that leads to a dilemma as to why were the plaintiffs arrested
and detained in the first place. It is therefore difficult to rely on the
defendant’s version and or testimony.
[26] Sergeant Mputa bluntly and vaguely testified that they advised the
plaintiffs of their rights. The first difficulty with that testimony is that, it
is not specified as to who exactly advised the plaintiffs of their rights.
Secondly, it is not clear if the reason for plaintiffs’ arrest was imparted to
them. Even if it can be said the plaintiffs were informed of the reasons
for their arrest, it would still be difficult to understand which of the reasons
was imparted to the plaintiffs; whether the ones pleaded in the defendant’s
amended plea, or the one adduced during the oral testimony. That failure
has a bearing not only to the clear, corroborated evidence by the plaintiffs
that they were never advised of their rights and the reasons for the ar rest,
it also has a bearing on the provisions of section 39(2) of the CPA.
[27] Section 39 (2) of the CPA provides thus:
“(2) The person effecting an arrest shall, at the time of effecting the arrest or
immediately after effecting the arrest, infor m the arrested person of the cause
of the arrest or, in the case of an arrest effected by virtue of a warrant, upon
demand of the person arrested hand him a copy of the warrant”.
Nowhere in the whole tenor of pleadings and evidence does it appear that
Sergeant Mputa, as the arresting officer, advised the plaintiffs of the cause
of their arrest. That failure rendered plaintiffs arrest invalid and unlawful
from its inception 6. It is now well established in our Constitutional
jurisprudence that the r ight not to be deprived of freedom arbitrarily or
without just cause affords both substantive and procedural protection
against such deprivation7.
[28] O’Regan in Coetzee 8 deal with two aspects of freedom, namely the
substance and the procedural component in this fashion:
“[159] These are separate questions. They raise two different aspects of
freedom: the first is concerned particularly with the reasons for which the state
may deprive someone of freedom; and the second is concerned with the manner
whereby a person is deprived of freedom. As I stated in Bernstein and Others v
Bester and Others NNO [1996] ZACC 2; 1996 (2) SA 751 (CC); 1996 (4) BCLR
6 Hiemstrar’s Criminal Procedure, Page 5-4.
7 Zealand v Minister of Justice and Constitutional De velopment and Another 2008 (2) SACR 1 (CC) Para 33 -
34.
8 S v Coetzee and others 1997 (3) SA 527 (CC) Para 159.
449 (CC) at paragraphs 145 -7, our Constitution recognises that both aspects
are important in a democracy: the state may not deprive its citizens of liberty
for reasons that are not acceptable, nor, when it deprives citizens of freedom for
acceptable reasons, may it do so in a manner which is procedurally unfair. The
two issues are related, but a constitutional finding that the reason for which the
state wishes to deprive a person of his or her freedom is acceptable, does not
dispense with t he question of whether the procedure followed to deprive a
person of liberty is fair. With respect, therefore, I cannot agree with Kentridge
AJ when he states at paragraph 93 of his judgment:
“In brief, if an offence of absolute liability had been created, it would
not in itself have given rise to any question of the unfairness of the trial
of such an offence. Where the severity of such a provision has been
mitigated by allowing the accused to prove a special defence it is in my
view illogical if not perverse to say that this destroys the fairness of the
trial.”9
[29] Section 12(1)(a) of the Constitution provides that no one should be
“deprived of freedom without just cause”. Section 39(2) of CPA and
Section 12(1)(a) of the Constitution contextually and purposively require
that the arresting officer must advise the suspect of the cause and or the
reason for his arrest 10. Contrary interpretation of the two provisions
aforesaid would lead to urbsudity. The plaintiffs were apparently and
probably arrested for reasons unknown or not communicated to them. Both
the substantive and procedural components of their liberty were
unjustifiable violated.
[30] Cameron J in Kirland Investments11 aptly remarked as follows:
“[82] All this indicates that this Court should not decide the validity of the
approval. This would be in accordance with the principle of legality and also,
if applicable, the provisions of PAJA. PAJA requires that the government
if applicable, the provisions of PAJA. PAJA requires that the government
respondents should have applied to set aside the approval, by way of formal
9 De Lange v Smuts NO and Others 1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (CC) Para 18.
10 Cool Ideas 1186 (CC) v Hubbard and another 2014 (4) SA 47 (CC) Para 28.
11 MEC for Health Eastern Cape and another v Kirland Investments (Pty) Ltd 2014 (3) SA 481 at Para 82.
counter-application. They must do the same even if PAJA does not apply. To
demand this of government is not to stymie it by forcing upon it a senseless
formality. It is to insist on due process, from which there is no reason to exempt
government. On the contrary, there is a higher duty on the state to respect the
law, to fulfil procedural requirements and to tread respectfully when dealing
with rights. Government is not an indigent or bewildered litigant, adrift on a
sea of litigious uncertainty, to whom the courtsmust extend a procedure -
circumventing lifeline. It is the Constitution’s primary agent. It must do right,
and it must do it properly” (my underlining).
[31] It is further apposite to quote the wise words of Mhlantla JA (as she then
was) in Slabbert12
“11 The purpose of the pleadings is to define the issues for the other party and
the court. A party has a duty to allege in the pleadings the material facts upon
which it relies. It is impermissible for a plaintiff to plead a particular case and
seek to establish a different case at the trial. It is equally not permissible for the
trial court to have recourse to issues falling outside the pleadings when deciding
a case”.
[32] It is trite that a litigant stand or fall by his or her pleadings13. The purpose
of the pleadings is to define the issues for the other party and the court. A
party is bound by his or her pleadings14. Litigation by ambush is generally
impermissible. Ordinarily a party should not lightly be allowed to disavow
reliance on his pleading and try to establish during trial another defence.
[33] There are, however, circumstances in which a party may be allowed to rely
on an issue which was not covered by the pleadings. This occurs where the
issue in question has been canvassed fully by both sides at trial. The
absence of an averment in the pleadings would not necessarily be fatal if
the point was fully canvassed in evidence. This means fully canvassed by
the point was fully canvassed in evidence. This means fully canvassed by
12 Minister of Safety and Security v Slabbert 2010 (2) ALL SA 474 (SCA) Para 11
13 Nkume v TransUnion Credit Bureau (Pty) Ltd and another 2014 (1) SA 134 (ECM) Para 7
14 Imprefed (Pty) Ltd v The National Transport Commission 1993 (3) SA 94
both sides in the sense that the court was expected to pronounce upon it as
an issue 15. A court is not bound by pleadings if a particular issue was
canvassed during the trial16.
[34] In this case, the docket was made available to the plaintiffs timeously and
they familiarised themselves with its contents, the issue of the offence
with which the plaintiffs were charged was not only put to the plaintiffs
who testified in this court, but was also adduced in evidence by the
defendant’s witness who was thor oughly cross examined thereon.
Plaintiffs meaningfully answered questions put to them about the
offence of defeating the ends of justice and their Counsel dealt with it
during cross examination of the defendant’s witness. It is on this basis
that I com e to a conclusion that the issue of an offence of defeating the
ends of justice or obstructing the course of justice was fully canvassed in
evidence. For that reason, I will consider and deal with this piece of
evidence.
[35] It is common cause that the plaintiffs ran away from the police twice on
that day. Firstly, at Chris Hani Village, Section B when they were
confronted by the police for allegedly stopping their taxi on the road.
Secondly, when they were chased by the police from Dosi Junction
(Next to Cicira College) up until when they were caught at Central Police
Station. It is highly probable that the plaintiffs were afraid of the police
who were chasing them. What is highly improbable is the fact that they
could have had a courage, as it had been explained by Sergeant Mputa, to
stand up to the same police officers they were afraid of and were running
15 South British insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd 1976 (1) SA 708A at 714G.
16 Minister of Safety and Security v Slabbert 2010 (2) ALL SA 474 (SCA) Para 22 per Harms DP.
away from. It is not clear how the plaintiff could have amassed the
courage to block and or prevent the same police officers they were afraid
of from searching the taxi and their bodies.
[36] The two plaintiffs corroborated themselves to make a point that they were
handcuffed by the police. Sergeant Mputa, in his unsupported evidence
denied that. He t estified that the plaintiffs were at no stage handcuffed.
That is hard to believed. The common cause evidence reveals that the
plaintiffs were running away from the police until when they were caught
at Central Police Station. It is not only logical tha t a reasonable police
officer, when catching up a suspect who has been running away would
believe that the suspects would attempt to flee and therefore make some
safeguards for such eventually not to occur. One of the normal and
usual safeguards to carb such an eventuality is handcuffing to restrict and
limit chances of fleeing or running away. Sergeant Mputa’s evidence is
not reliable and it is untrustworthy and therefore cannot be believed. It
deserves only one fate, a fate of rejection. Plaintiffs’ version in this regard
is possibly true.
[37] Flowing from the above, it is not explained to this court how the
plaintiffs would block the police when they were on handcuffs. Another
thing that is not clear from Sergeant Mputa’s evidence relates to their quest
to search the persons of the plaintiffs. He clearly did not testify about what
happened in relation to that kind of search. Plaintiffs who were afraid of
the mighty police officers who were at that stage hand cuffed could, on a
balance of probabilities, not refuse those police officers an opportunity to
search. No opportunity to search was refuse, and therefore no offence of
defeating the ends of justice or obstructing the course of justice was
committed.
[38] In any event, a very muc h confusing evidence of Sergeant Mputa was
tendered. According to him, unmentioned police officers searched the taxi
in which the plaintiffs were passengers as he and other unmentioned
officers took the plaintiffs inside the Police Station to be proces sed as
arrestees and detainees. In those circumstances, who was actually refused
opportunity to search if the unmentioned police officers searched the taxi
concerned. Sergeant Mputa’s evidence leaves much to be desired.
[39] Even if it can be said I a m wrong with the discrepancies aforementioned
above in the defendant’s evidence, I would still find against the defendant.
Assuming or accepting that there was a search requested to be conducted
and same was refused; would that be sufficient to constitute an offence of
defeating the ends of justice or obstructing the course of justice? The
answer is in the negative. The Criminal Procedure Act provides for a
search in circumstances where there is no warrant.
[40] Section 22 of CPA provides thus:
“A police official may without a search warrant search any person or container
or premises for the purpose of seizing any article referred to in section 20-
(a) if the person concerned consents to the search for and the seizure of
the article in question, or if the person who may consent to the search of
the container or premises consents to such search and the seizure of the
article in question; or
(b) if he on reasonable grounds believes-
(i) that a search warrant will be issued to him under paragraph
(a) of section 21 (1) if he applies for such warrant; and
(ii) that the delay in obtaining such warrant would defeat the
object of the search.”
Section 22(a) of the CPA confers a right to consent to the search without
a warrant. The inverse of the right to consent to the search aforesaid is the
right to refuse to the search without a warrant. These rights exists pari
passu. They should be considered side by side. A right to consent entails
and is accompanied by a right to refuse. A right exists for the bearer thereof
to exercise.
[41] This court was told by Sergeant Mputa that an offence of defeating the
ends of justice or obstructing the course of justice was committed because
the plaintiff refused to consent or grant permission when police sought to
search them and the taxi. Refusing to consent is a right available to the
person sought to be searched to exercised. When that rig ht to refuse is
exercised, that can hardly translate to a crime. All what is patent is that
refusal to consent renders the search unlawful; whilst consent renders the
same search lawful. I therefore come to conclusion that refusing to consent
to search is not unlawful. Defeating the ends of justice is defined as any
unlawful and intentional act that obstructs or hinders the proper
administration of justice. Proper administration of justice required that
consent or permission to search must be granted for a search to be lawful.
The default position is that search is unlawful if no consent or permission
to search is granted. Therefore, there was no offence committed in the
presence of the police as contemplated in section 40(1)(a) of CPA.
Accordingly, relia nce on the provisions of section 40(1) (a) of CPA is
misplaced. The main jurisdictional fact of section 40(1) A of CPA was or
is clearly not satisfied. The arrest was therefore unlawful.
[42] Therefore is yet another reason why plaintiffs’ arrest and det ention was
unlawful. It is well established that the purpose of arrest is to bring the
suspect to court for trial17. It is not clear on the facts of this case that such
purpose was fulfilled. It is not in dispute that the plaintiffs were conveyed
from the police cells on 12 th February 2018 to the Mthatha Magistrates
court holding cells. However, they were never brought before court. They
were released from the Magistrate’s Court holding cells. Mr Zilani,
Counsel for the defendant argued strongly that it must be inferred from the
act conveying inmates to the court building that, the purpose of arrest was
fulfilled or achieved. There is no merit to this argument. A clear purpose
must be to bring the suspect to justice or court or trial, not to ta ke him
from one cell to the other, and afterwards release him without any
explanation for that release18. Sergeant Mputa could not shed light on this
aspect as he was not even involved in the bringing of the plaintiffs to the
Magistrate’s court holding cells. The purpose of arrest in this case was
clearly not achieved. The plaintiffs were arrested for a purpose other than
to bring them to trial or justice. Arrest for alterior motives can never be
lawful. I therefore find that plaintiffs arrest was unlawful.
[43] A detention following an unlawful arrest is, as a corrollary, unlawful.
Defendant’s Counsel was constrained to concede that, as a consequence of
an unlawful arrest, a subsequent detention is quintessentially unlawful.
Plaintiffs arrest and detention from 10 th February 2018 to 12 th February
2018 is unlawful. I shall deal again with this aspect of this case when
dealing with the quantum.
17 De Klerk v Minister of police 2018 (2) ALL SA 597 (SCA); 2018 (2) SACR 28 (SCA) Para 14.
18 Kosi v Minister of Police (Appeal) (CA17/2024) [2025] ZAECBHC 6 (4 March 2025) Para 32.
Assault
[44] He who alleges must prove19. In Jagers20 Eksteen AJP held that:
“…..where the onus rests on the plaintiff as in the present case, and where there
are two mutually destructive stories, he can only succeed if he satisfies the Court
on a preponderance of probabilities that his version is true and accurate and
therefore acceptable, and that the other version advanced by the defendant is
therefore false or mistaken and falls to be rejected. In deciding whether that
evidence is true or not the Court will weigh up and test the plaintiff’ s allegations
against the general probabilities. The estimate of credibility of the witness will
therefore be inexplicably bound up with a consideration of the probabilities of
the case and, if the balance of probabilities favours the plaintiff, then the
Court will accept his version as being probably true. If, however, the
probabilities are evenly balanced in the sense that they do not favour the
plaintiff’ s case any more than they do the defendant’ s, the plaintiff can only
succeed if the Court nevertheless believes him and is satisfied that his
evidence is true and that the defendant’ s version is false”.
[45] Sergeant Mputa vehemently testified that, upon seeing the taxi stopped on
the road they only activated the siren and shouted to the driver to remove
the taxi to the roadside. Upon seeing that there was no response, though
there were occupants in the taxi, they alighted from theirs and approached
the plaintiffs’ taxi. Before they could arrive thereat, the plaintiffs ran away,
and they then proceeded with their patrol duties. What boggles one’s mind
is a simple question: what caused the plaintiffs to come out of their motor
vehicle and run away? The answer is in the account the plaintiffs gave in
this court about what happened. The maxim “ Res Ipsa lequitor” applies.
Facts speak for themselves. The police came out of their motor vehicle
shouting and asking the following; “ why are you boys stopping on the
shouting and asking the following; “ why are you boys stopping on the
road?” As they were asking this question, they opened both the drivers and
passenger doors and started to assault and grab the plaintiffs out of the taxi.
The plaintiffs managed to free themselves and ran to different directions.
19 Pillay v Krishna and Another 1946 AD 946 at 951-2.
20 National Employees General Insurance Co Ltd v Jagers 1984 (4) SA 437 at 440 E-G.
[46] Plaintiffs’ version is probably a true version and it aligns with the rules of
logic. The only probable reason why the plaintiffs could run away from the
police is that the police had assaulted them. They only came back to th eir
taxi when and after the police had left. The police version is untenable,
uncreditworthy and unreliable and stands to be rejected.
[47] Assault is a crime against bodily integrity. Section 12(2) of the
Constitution provides thus:
“2. Everyone has the right to bodily and psychological integrity….”
CR Snyman21defines Assault thus:
“Assault consist in any unlawful and intentional act or omission-
(a) which results in another person’ s bodily integrity, being
directly or indirectly impaired, or
(b) Which inspired a belief in another person that such
impairment of her bodily integrity is immediately to take
place.”
With regard to par t (b) of the definition, for an assault to be committed
when no physical impact takes place, there must be a threat of immediate
personal violence in circumstances that lead the person threatened
reasonably to believe that the other intends and has the power immediately
to carry out threat22. Even if it can be held that there was no physical impact
or application of force took place, the alternative definition of assault
would still hold. This part only required that the perpetrator must have
inspired fear that force would be applied23. The common cause fact that the
police shouted at the plaintiff, followed by them alighting from their
21 C.R Snyman: Criminal Law, Sixth Edition, Page 447.
22 R v Gondo 1970 (2) SA 306 (R) at 307 D-E.
23 C.R Snyman: Criminal Law, Sixth Edition, Page 450.
vehicle approaching the plaintiffs is sufficient to inspire fear or a belief that
interference with plaintiffs’ bodily integrity would immediately take place
and that qualifies to be an assault. Infact I had already found that more had
been done than inspiring a belief that force would be applied into the
plaintiffs’ personal bodies.
[48] Another interference with plaintif fs’ bodily integrity occurred at central
police station when plaintiffs were confronted with the police. A little
background to that is this: plaintiffs were being chased and were running
away trying to escape or avoid the catch of the police, but were onl y
apprehended in the premises of central police station. It is highly probable
for every reasonable police officer to handcuff or cuff the person who was
trying to flee or run away from a police officer. I therefore find that the
plaintiffs were handcuffed when they were finally caught trying to escape
or avoid the catch of the police. There is no merit in Sergeant Mputa’s
testimony that the plaintiffs were not handcuffed. It goes without saying
that handcuffing occurred with the application of force and in terference
with plaintiffs’ bodily integrity. That interference was not justified. In the
circumstances I find that the plaintiffs were assaulted by the members of
the South African Police service.
Third Plaintiff’s absence and failure to give evidence
[49] A crucial aspect that has a bearing on the relief this court will grant is the
fact that only two plaintiffs testified in this court. They were represented
by their Counsel Mr Gwele, who indicated that his instructing attorneys are
unaware of the third plaintiff’s (Lwanele Ngebulana) whereabouts. As they
were on record representing him as well, he informed the court that
instructing attorneys tried to locate or get hold of him in every possibly
way, but to no vail. Mr Gwele indicated that in the light of the fact that no
appearance has been shown by the third plaintiff and that no evidence had
been be tendered or adduced by him, he will make no submissions on his
behalf and even suggested that his claim may be dismissed. No submission
was made in this regard by Mr Zilani, Counsel for the defendant.
[50] In the interests of justice I am inclined to reconsider the ruling
consolidating the three matters and grant a ruling that is unconsolidating
third plaintiff’s matter (Case No: 5251/2018) and separate it from these two
consolidated matters under Case No: 2882/2018. The third plaintiff has not
withdrawn his claim. The fact that his legal representatives are unable to
get hold of him is insufficient to found a basis for the adverse disposal of
his matt er. Had he been found by his legal representatives he would
probably have availed himself to give his evidence. The fact that the
evidence led herein is overwhelmingly against the defendant weighs
heavily.
[51] Accordingly, a court order dismissing third plaintiffs claim, on a mere say
so of plaintiff’s Counsel cannot be just. It bears repetition that this matter
raises issues of Constitutional importance namely, dignity24, Liberty25 and
bodily integrity26. A just and equitable relief this court may make in terms
of section 172(1)(b) of the Constitution is to separate and postpone third
plaintiff’s matter under case no 5251/2018. I say this in the context of the
provision of section 34 of the Constitution which provides that:
24 Section 10 of the Constitution.
25 Section 12(1)(a) of the Constitution.
26 Section 12(2) of the Constitution.
“Everyone has the r ight to have any dispute that can be resolved by the
application of law decided in a fair public hearing before a court or, where
appropriate, another independant and impartial tribunal or forum
[52] Fair public hearing is unimaginable and inconceiv able if a party’s case is
adversely decided in his absence when it is clear to the court that he is
unaware that he should have been in court. Equally, it would be unfair to
decide a party’s case against him when it is clear to all and sundry that his
legal representatives are not at fault. He is not at court through no fault of
his or his legal representatives. Therefore, it is plain that the defendant will
suffer no prejudice if third plaintiff’s matter is postponed as it will still be
available to him to settled it without incurring any further costs, if so
advised; whereas on the other hand the third plaintiff will suffer severe
prejudice if his matter can be dismissed or adversely disposed of. It will
therefore be encumbent upon the defendant to endevou r to settle third
plaintiffs’ claim without incurring further costs, if so advised.
[53] Parties were invited to submit written submissions to deal specifically with
this aspect. Both Counsel complied and heeded the request, for that I am
thankful. In r esponse to a request for written submissions, Mr Gwele
helpfully referred to Rule 10(5) of the URC which reads as follows:
“(5) Where there has been a joinder of causes of action or of parties, the court
may on the application of any party at any time o rder that separate trials be
held either in respect of some or all of the causes of action or some or all of the
parties; and the court may on such application make such order as to it seems
meet”.
Factors that may be taken into consideration in the ex ercise of the court’s
discretion includes27:
(i) The interests of the applicant in seeking to enforce his remedy.
(ii) the prejudice to the opposite party if a separation of trials is
ordered;
(iii) the possibility of lengthy delay if the separation is refused,
compared with the probable minimum delay of a separation is
ordered;
(iv) the question of costs, including the salvage costs already
incurred in the matter, as well as the additional costs that may
be occasioned by a separation of trials;
(v) the conduct of parties, including the bona fide of the applicant;
(vi) the balance of convenience (although this may already be
covered by other items in the preceding catalogue. I have
sufficiently dealt with those considerations in the preceding
paragraphs.
[54] Rule 11 of URC provides for consolidation of actions and also provides
that:
“(b) the provision of rule 10 shall mutatis mutandis apply with regard to the action so
consolidated;”.
This succinctly means that separation of consolidated trials in terms of
Rule 11 is a discretion reposed of the court in terms of Rule 10(5) of URC.
It is unequivocal from Mr Gwele’s written submissions that he is applying
27De Polo v Freyer 1990 (2) SA 290 (W) at 295 H -296 B; Caltex Oil (SA) (Pty) Ltd v Govender’s Fuel
Distributors (Pty) Ltd 1996 (2) SA 552 (N) at 556H- 557D
for separation of third plai ntiff’s trial, hence reference to Rule 10(5) of
URC. Reference to application in the subrule does not mean formal
application on notice of motion. Section 172(1)(b) of the Constitution and
a prayer in the amended particulars of claim for further and altern ative
relief have an overarching effect. They afford this court a discretion to
grant further and or alternative relief that is just and equitable.
Conclusion on Liability
[55] In the amalgam of all this, I have found that the defendant is liable to the first
and second plaintiffs for all the damages arising from their unlawful arrest
and detention from 10 th February 2018 to 12 th February 2018. Plaintiffs
arrest and detention aforesaid was unlawful. Similarly, the defendant is
liable for the damages ar ising from their assault by members of South
African Police Service on 10th February 2018. In what follows I deal with
the quantum.
Quantum
[56] Plaintiffs’ deprivation of liberty at the instance of the Police occurred
from 10 th February 2018 until 12 th February 2018. When the plaintiffs
were released from custody on 12 th February 2018 they had been in
custody for two (2) days. Alternatively, they spent two (2) nights in the
cells. Plaintiffs’ rights to freedom or liberty and human dignity were
unjustifiably violated. The detention constitutes an in -road into the
freedom and the right to human dignity of an individual 28. The right to
liberty is inextricably linked to human dignity29 .
[57] In Du Plessis30 the SCA remarked as follows:
“15. Our new Constitutional Order, conscious of our oppressive past, was
designed to curb intrusions upon personal liberty which has always, even
during the dark days of apartheid, been judicially valued, and to ensure that the
excesses of the past would not recur.3 The right to liberty is inextricably linked
to human dignity. Section 1 of the Constitution proclaims as founding values,
human dignity, the achievement of equality and the advancement of human
rights and freedoms. Put simply, we as a society place a premium on the right
to liberty.
[58] Section 12 deals with freedom and security of the person. Importantly it
provides as follows in relevant parts:
“Everyone has the right to freedom and security of the person, which includes
the right-
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private
sources;
(d) not to be tortured in any way; and
………
(2) Everyone has the right to bodily and psychological integrity…….”
Section 10 deals with dignity as follows:
“Everyone has inherent dignity and the right to have their dignity respected and
protected”.
28 Thandani v Minister of Law and Order 1991 (4) SA 904 (A).
29 Minister of Police v Du Plessis 2014 (1) SACR 217 (SCA); Zealand v Minister of Justice and Constitutional
Development 2008 (4) SA 458 (SCA) Para 25.
30 Minister of Police and another v Du Plessis 2014 (1) SACR 217 SCA Para 15.
[59] In Diljan31Makaula AJA had the following to say:
“[18] The acceptable method of assessing damages includes the evaluation of
the plaintiff’ s personal circumstances; the manner of the arrest; the
duration of the detention; the degree of humiliation which encompasses
the aggrieved party’ s reputation and standing in the community;
deprivation of liberty; and other relevant factors peculiar to the case
under consideration.
[19] Whilst, as a general rule, regard may be had to previous awards, sight
should, however, not be lost of the fact that previous awards only serve
as a guide and nothi ng more. As Potgieter JA cautioned in Protea
Assurance Co. Ltd v Lamb:
‘It should be emphasised, however, that this process of
comparison does not take the form of a meticulous examination
of awards made in other cases in order to fix the amount of
compensation; nor should the process be allowed so to dominate
the enquiry as to become a fetter upon the Court’ s general
discretion in such matters. Comparable cases, when available,
should rather be used to afford some guidance, in a general way,
towards assisting the Court in arriving at an award which is not
substantially out of general accord with previous awards in
broadly similar cases, regard being had to all the factors which
are considered to be relevant in the assessment of general
damages. At th e same time, it may be permissible, in an
appropriate case, to test any assessment arrived at upon this
basis by reference to the general pattern of previous awards in
cases where the injuries and their sequelae may have been either
more serious or less than those in the case under consideration.”
[60] In Tyulu32 the Supreme Court of Appeal held:
“[26] In the assessment of damages for unlawful arrest and detention, it is
important to bear in mind that the primary purpose is not to enrich the
aggrieved party but to offer him or her some much-needed solatium for
aggrieved party but to offer him or her some much-needed solatium for
his or her injured feelings. It is therefore crucial that serious attempts
be made to ensure that the damages awarded are commensurate with
the injury inflicted. However, our courts should be astute to ensure that
the awards they make for such infractions reflect the importance of the
right to perso nal liberty and the seriousness with which any arbitrary
deprivation of personal liberty is viewed in our law. I readily concede
31 Diljan v Minister of Police (746/2021) [2022] ZSCA 103 (24 June 2022) 22 JDR 1759 SCA Para 18-19.
32 Minister of Safety and Security v Tyulu 2009 (5) SA 58 (SCA); 2009 (2) SCAR 282 (SCA); 2009 (4) ALL SA
38 Para 26.
that it is impossible to determine an award of damages for this kind of
injuria with any kind of mathematical accuracy. Althoug h it is always
helpful to have regard to awards made in previous cases to serve as a
guide, such an approach if slavishly followed can prove to be
treacherous. The correct approach is to have regard to all the facts of
the particular case and to determine the quantum of damages on such
facts (Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA)
325 para 17; Rudolph & others v Minister of Safety and Security &
others (380/2008) [2009] ZASCA 39 (31 March 2009) (paras 26-29).”
[61] The first and second plaintiffs are major unemployed males33 respectively
born on 27 th July 1991 and 02 nd September 1992. They describe the
conditions in Prison where they were detained as appalling and unhygienic.
They were detained without trial and that is reminiscent of the dark days
of apartheid, a past a modern soci ety is not proud of. Practises under
apartheid like detention without trial, were crimes against humanity.
[62] In Diljan the Supreme Court of Appeal awarded R120 000.00 as fair and
reasonable amount for appellant’s deprivation of liberty for three (3) days.
When dividing that amount by three (3) days, one gets R40 000.00. In
Madyibi34 an amount of R35 000.00 was awarded for twenty (20) hours
detention. In Ncume35 this court awarded R45 000.00 as fair and reasonable
compensation for arrest and detention for approximately eighteen (18)
hours. Taking into account the circumstances and conditions of plaintiff’s
detention or deprivation of liberty, I am satisfied that the defendant is liable
to the plaintiff in the amount of R80 000.00 as fair and reasonable
compensation for deprivation of liberty for approximately two (2) days.
33 At the time of institution of these proceedings the second plaintiff was self-employed.
34 Nel v Minister of Police (Case No CA 62/2017) [2028] ZAECGHC.
34 Nel v Minister of Police (Case No CA 62/2017) [2028] ZAECGHC.
35 Andile Ncume v Minister of Police (Case No 3219/2021) Eastern Cape, Mthatha.
[63] Assault without justifiable basis by the police invariably amounts to
torture36 and abuse of power. The police in our societies hold an honourable
position clothed with fiduciary duties. They should be trusted and not be
feared for. They have a higher duty to protect the society37 and not to abuse.
With regard to assault, infringement of one’s bodily integrity is inextricably
linked to one’s dignity. Humiliation and embarrassment are incidences and
consequential upon the incident of assault. I am therefore satisfied that each
plaintiff is entitled to a fair and reasonable compensation of R40 000.00
for a claim of assault. No injuries were sustained by the plaintiff.
Costs
[64] The general rule is that costs must follow the result. I have not been
persuaded that there should be deviation from the general rule that costs
should follow the event. Accordingly, the plain tiffs are entitled to their
costs. With regard to third plaintiff’s matter no further and separate costs
were incurred as a result of its postponement.
Order
[65] In the result I make the following order:
1. The defendant is liable to pay first and second plaintiffs an
amount of R80 000.00 each for their arrest and detention from
10th February 2018 to 12th February 2018.
36 Section 12(1) (d) of the Constitution.
37 Section 203 of the Constitution.
2. The defendant shall pay interest on the amount referred to in
paragraph 65.1 above (R80 000.00) at a prescribed legal rate
calculated from the date of this judgment to the date of final
payment.
3. The defendant is liable to pay first and second plaintiffs an
amount of R40 000.00 each in respect of their assault by the
members of the defendant on 10th February 2018.
4. The defendant shall pay interest on the amount referred to in
paragraph 65.3 above (R40 000.00) at a prescribed rate
calculated from the date of this judgment to the date of final
payment.
5. The defendant shall pay first and second plaintiff’s costs of suit.
6. Third plaintiff’s action under case number 5251/2018 is hereby
separated and postponed sine die.
________________________________
A.S ZONO
JUDGE OF THE HIGH COURT (ACTING)
APPEARANCES:
For the Plaintiff :Adv Gwele
Instructed by :L.MTHAMBO ATTORNEYS
66 Stanford Terrace
Mthatha
Tel: 060 528 2775
Ref: SMS/LM/18/C
Email:mthambol@yahoo.com
For the Defendants :Mr Zilani
Instructed by : M ZILANI ATTORNEYS
No 19, 5th Floor, Sanlam Building
Mthatha
Tel: 083 505 6400
Ref: 1619/18-A2K
Email:zilaniattorneys@gmail.com
Matter heard on : 18, 19 and 20 November 2025
Delivered on : 09th December 2025