REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 9472 / 2022
(1) RE PORTA BLE : NO
(2) OF INTER EST TO THE JUDG ES: Y NO
(3) REVISED.
DA TE •• 1111~ 20~ ·· ••• S:G NATU RE .~
In the matter between:
JAN MORAKA LEMEKWANE Plaintiff
And
MINISTER OF POLICE Defendant
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Delivered: This judgment is handed dow n electronically by circulation to the parties
through their legal representatives' email addresses. The date for the hand-dow n is
deemed to be 11 DECEMBER 2025.
JUDGMENT
NGCANGCAAJ
INTRODUCTION
[1] The Court is called upon to Adjudicate on a C ivil claim for damages , instituted
by the Plaintiff. The Plaintiff based his claim for damages he suffered due to
his Unlawful arrest and Detention. Which w as carried out by the Defendant or
his employees, during the scope of their duties.
[2] The Plaintiff is at such claiming damages at an amoun t of R1 M illion Rands,
for the Damages he suffered. The first aspect w ill be for the Court to determine,
if the Arrest and subsequent Detention w as Lawful and Justified as the
Defendant contend that.
BACKGROUND
[3] The Plaintiff in his Summons alledges that on the 23RD September 2021
around 19:00, at Munn ik Street Polokwane around Mall of the North vicinity
he w as unlawfully arrested by the South African Police members and
unlawfully detained until the 27TH September 2021 at Polokw ane Police cells
on suspicion that he w as in Possesion of Drugs or Nyaope and also Dea ling
w ith them or Selling.
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[4] The Defendant in it's Plea contend that, they arrested the Plaintiff after he w as
found in Possesion of Drugs or Nyaope at the area or vicinity alledged by
Plaintiff.
ISSUES // FACTS IN DISPUTE
[5] Based on the brief background, from the Plaintiff Summons and the Defendant
Plea. And cardinal aspects laid dow n by both Parties in their evidence, the
Court has to adjudicate in this ma tter, determine if the Arrest and Detention
w as Unlawful.
[6] The Defendant started to tender evidence and called the Police officer w ho
effected the Arrest of the Plaintiff. He is Constable Magano , a member of the
Provincial S.A .P.S flying squad w ith 7 years expierence as a Police officer. He
said they w ere doing patrols w ith Constable Netshikw eta driving around
Polokw ane in the evening. They stopped a VW Jetta car blue in colour and
w hich w as driven by Plaintiff.
[7] Having stopped the suspicious vehicle, he w ent to introduce himself to the
driver, w ho w as alone in the car and requested him to come outside to be
searched. His crew member Constable Netshikweta w as standing at distance
from them, but keeping observation. Nothing he found on the suspect.
[8] He proceeded to search the car inside, he found 4 big plastic bags under the
driver's seat. Inside the 4 plastic bags each bag contained about 100 small
plastic packets containing Drugs or Nyaope. He asked Plaintiff about them,
Plaintiff confirmed that is his drugs and is selling them.
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[9] They arrested the Plaintiff and called the forensic personnel, to seal the Drugs
in the presence of Plaintiff. He testified that , they w ere Drugs or Nyaope w hat
w as found in the Plaintiff car and based on his illustrated expierence of
w orking as a cop and alw ays arresting people in possession thereof and
Plaintiff confirming same . Accused constitutional rights w ere explained, he
w as take to Police station for detention and Drugs w ere booked on SAP 13 in
the Presence of Plaintiff.
[1 O] The arrest w as conducted w ithout a w arrant of arrest, he testified that he
effected it in terms of Section 49 of the Criminal Procedure Act, w hich
permit him to arrest w ithout a w arrant.
[11] At all material times, the Defendant w itness w as subjected to cross
examination by the Plaintiff legal representative.
[12] The Plaintiff testified also and cardinal in his testimony, w as new evidence
w hich he never put to the Defendant to either corroborate or dispute. Key
aspects w ere the follow ing: He alledged that Defendant w as driving alone,
w ithout Constable Netshikweta. He stopped and searched him w hile he w as
alone and found the said plastics containing Drugs or Nyaope.
[13] He further said, he w as escorted by Defendant to Netshikweta house and
w hen they arrived there, he w as subjected to horrific beating by Defendant
and Netshikw eta. There after he w as taken to the Police station for detention
and no constitutional rights w ere explained to him.
[14] Plaintiff in his testimony, he admitted being stopped at Munnik Street in the
vicinity of the Mall of the North. He said he w as given a plastic containing
loaves of bread and cold drink to provide someone in his nearby village. He
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placed the plastic on the back seat of the car and did not check if there w as
plastic inside containing Drugs.
LEGISLATION// CASE LAW
[15] The two Police officials w ere on duty doing routine patrols around Polokw ane.
It w as illogical to be expected to be in possession of a search w arrant and an
arrest w arrant, not know ing for w hich purpose / kind of offence and against
w hom. Their patrol w as directed at any form of unlawful conduct.
[17] At such Section 40 of the Criminal Procedure Act allow ed them to effect
an arrest w ithout a w arrant. The Court is firstly tempted to visit the statute
concerned. Section 40 of the said Act laid dow n a number of instances w here
an arrest can be done w ithout a w arrant by a Peace Officer. Subsection ( 1)
(a) thereof, allow s Arrest by a Peace Officer w ithout a w arrant of arrest , any
person w ho commits an offence in his / her presence or attempts to commit
offence in his / her presence.
[18] The relevant instance is listed in section 40 (1 )( b) of the said act. The section
say "a Police officer may arrest without a wa rrant any Person whom he
reasonably suspect of having comm itted an offence referred to in Schedule 1 ".
[19] The Defendant testified that, the Plastic containing Drugs w as found inside the
motor vehicle the Plaintiff w as driving. Plaintiff did not dispute that, but to
alledge that he w as given it by someone w hom he told him w as containing
bread to deliver.
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The element of Possesion or control either physical or mental by Plaintiff w as
existing. Plaintiff admitted to have know ing the Plastic and did receive the
Plastic, though he w as told it had bread not contained Drugs.
[20] Section 49 (1 )(b) of the Criminal Procedure Act 51 of 1977 is the key
legislation governing arrest w ithout a w arrant. Persuasive judgmen ts
considered by the Court w ere the follow ing: (1) EDWARD DITSELE AND 3
OTHERS II MINISTER OF POLICE AND OTHER FREE STATE HIGH
COURT CASE NO: 80512019 (25 JANUARY 2023) Plaintiffs w ere arrested
for selling alcohol w ithout license and possession of dagga. Plaintiffs w ere
seen by Police selling alcohol in Mangaung Tow nship from the back of their
bakkie.
Police parked their unmarked vehicle opposite the Plaintiffs car, people w ere
seen flocking there and coming back w ith liquor quantities. After a w hile, they
w ent to the said car and found many quantities of alcohol and lots of cash.
Plaintiffs did not had a license to sell alcohol, packets of dagga w ere also
found.
Arrest w as effected for illegal sale of alcohol and possession of dagga. The
action of the Police in arresting the Plaintiffs, w ere held to be reasonable,
justifiable and follow ed by rational suspicion w hich w as confirmed.
The action by Plaintiffs for unlawful arrest and detention w as dismissed. The
Police had follow ed up the suspicion of illegal sale of alcohol, observed the
operation / selling process, w ent to search the car and found large quantities
of alcohol, lots of cash and dagga.
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[21] Another case w hich is binding to be follow ed until overturned by Constitutional
Court is: SANDILE BIYELA // MINISTER OF POLICE. SCA (1017 /2020 )
ZASCA 36 . Heard on 15 January 2022 and delivered on :01 April 2022
In this case, the Magistrate Court had aw arded damages for unlawful arrest
and detention in favour of Biyela. He w as arrested together w ith a group of
persons w ho w ere seen in Durban CBD damaging a parked Bus, w hile they
w ere travelling in a Taxi.
The scene of the crime and commission thereof, w as seen by CCTV operator
in the CBD w ho is a Police officer. He dispatched information to his coullegues
w ho w ere patrolling the streets. Acting on that information, Police traced the
Taxi and found it and searched it. Inside the Taxi, they found bricks, stones
and knob kerries w hich w ere used to damage the Bus and all occupants w ere
arrested including the Appellants.
Appellants, lodged Unlawful arrest action in the Magistrate Court and damages
w ere aw arded to them. Main reason, for the aw ard according to the Court w as
that the alledged CCTV operator did not had exact recollection of the incident
w hen he testified in Court.
On Appeal at the Provincial Division of the High Court, in Petermaritzburg due
to dissenting view s of the Court. The case w as referred to Appeal Court on
special petition.
At the Court of Appeal, the Judgement of the Magistrate Court w as set aside
and Dissmised. The Court held that, the credibility of the CCTV operator w as
not an issue w hich the Court w as supposed to have considered w hen
aw arding Damages. The Court held that, the conduct of the Police w ho
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effected an arrest w as important. They investigated the allegations, and found
stones, bricks and knob kerries w hich w ere linked to damaging the Bus and
effected the arrest.
ANALYSIS OF FACTS BY PARTIES AND THE LAW
[35] The Defendant informed the C ourt about the search conducted on the Plaintiff
car, w ho w as driving and alone. Plastic being found and containing drugs,
w hich w ere further opened at Police station and sealed in the presence of the
Plaintiff.
That possession w as never denied, but for the Plaintiff to say he w as given the
plastic by another person w ho informed him it contained bread to deliver .The
Plaintiff w as in control and possessed the said plastic w ith drugs. O w nership
thereof w as denied by the Plaintiff.
But for the suprising testimony of the Plaintiff, being that he w as arrested by
only one Constable Magano w ho w as doing the patrol alone. And upon arrest
he w as taken to Mr Netshikw eta house , only for him to be assaulted due not
respecting.
Aspect w hich this C ourt is finding to be impossible, given that it w as not
disputed or put to the Defendant Constable Magano w hen he testified that, he
w as w ith Mr Netshikw eta w hen Plaintiff w as arrested.
[ 36 ] Section 40 (1) (b) has been to have been complied w ith by Defendant, he
opened the plastic contents in the presence of Plaintiff and further w ent to seal
them in his presence after he had satisfied himself that they w ere Drugs.
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At all material times, Plaintiff was in possession and control of those Drugs.
Defendant acted reasonably in confirming that according to his knowledge and
expierence the contents he found were Drugs.
RULING// COURT FINDINGS
[37] Firstly the Court has to consider the ambit of Section 40 (1 )(b) of the Criminal
Procedure Act 51 of 1977, where a Peace Officer can effect an Arrest if they
reasonably suspect that a person has comm itted a schedule 1 offence , except
escaping from lawful custody.
[ 38 ] Defendant is a Police officer and classified as a Peace officer.
[ 39] The Plaintiff testimony, only confined itself in denying Ownership of Drugs not
possession.
ORDER
[46] Plaintiff's Claim is hereby dismissed with costs.
<
L.K. NGCANGCA
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
FOR PLAINTIFF
FOR DEFENDANT
HEARD ON
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APPEARANCES
ADV. MAKGOPA
POLOKWANE
ADV.RAKGOHO ,STATE ATTORNEY (POLOKWANE)
: 22 AUGUST , 12 &29 SEPTEMBER , 20 OCTOBER 2025
JUDGEMENT DELIVERED ON : 11 DECEMBER 2025