IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO.: 628/2023
Reportable Yes/No

In the matter between:

NOBAHLE DAMOYI Plaintiff

and

MINISTER OF POLICE Defendant


JUDGMENT

Cengani-Mbakaza AJ
Introduction
[1] The plaintiff instituted an action against the Minister of Police (the
defendant) claiming damages in the amount of R700 000 (Seven Hundred
Thousand Rand) for the alleged unlawful arrest and detention. The arrest was
effected by the me mbers of the South African Police Services (SAPS) acting

within the course and scope of the defendant’s employment.
[2] By agreement between the parties, the trial proceeded in respect of both
the merits and the quantum.
[3] In her particulars of cla im, the plaintiff explained the facts leading to her
arrest, which are largely common cause. The defendant admits to the arrest and
subsequent detention but claims it was lawful.
[4] The law is settled, once the arrest is admitted, the defendant bears the
onus to prove lawfulness on a balance of probabilities. In Minister of Law and
Order and others v Hurley and Another1, the appellate court held that:
‘An arrest constitutes an inte rference with the liberty of the individual concerned, and it
therefore seems to be 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.’
In casu, the trial proceeded on that basis.
The evidence
[5] Around 2019, the world discovered a deadly disease known as corona
virus. Precautionary measures were developed to curb the spread of the virus.
The virus was contagious and the South African President declared a state of
disaster.
[6] During the curfew, certain regulations were put in place including the ban
of selling liquor in terms of the regulations promulgated under s 27(2) of the
COVID-19 Disaster Management Act 2002. 2 It is common cause that du ring

1 Minister of Law and Order and Others v Hurley and Another [1986] ZASCA 53 ; [1986] 2 All SA 428 (A)
paras 65-66. See also Mahlangu and Another v Minister of Police [2021] ZACC 10 ; 2021 (7) BCLR
698 (CC); 2021 (2) SACR 595 (CC) at para 32.
2Regulations issued in terms of s 27(2) of the Disaster Management Act 57 of 2002 , originally published in
Government Notice No. 318 published in Government Gazette No. 43107 of 18 March 2020, and amended by
Government Notice No. 398 published in Governmen t Gazette No. 43148 of 25 March 2020; amended by

this period, there was heavy police visibility aiming at maintaining law and
order, specifically helping to reduce the spread of the virus.
[7] On 30 April 2020, the plaintiff had some few bottles of liquor at home
and the police received a tip -off th at she was selling liquor. They visited her
home for the purpose of verifying the said information and to act accordingly.
The plaintiff was in the company of her family including her minor children.
They found the liquor as advised, however the plaintiff claimed that the liquor
was for a traditional ceremony which was planned post-curfew.
[8] The police asked the plaintiff to prepare herself for arrest. They took her
away in a police van, detained her and later gave her a J534 which is a written
notice to appear in court (the notice). According to the notice the plaintiff was
to appear in court on 29 May 2020, a date that was identified as a trial date. The
notice had an option of an admission of guilt fine of R10 000 which was
payable on or before 21 May 2020.
[9] On the date of the trial, the plaintiff went to court as advised. The
prosecutor informed her to go home as her case was not on the list of cases that
were enrolled for the day. It is therefore common cause that the arrest and
detention did not c ulminate in any formal charges or criminal prosecution
against the plaintiff.
[10] The evidence of the plaintiff and that of Constable Nkosikho Madikane
(the arresting officer) parted ways in respect of the following: The plaintiff
testified that she was detained in the police cells from the late hours of 30 April
2020 until 1 May 2020 around 1.am. Conversely, the arresting officer explained
that the plaintiff was in the police custody for at least 30 minutes and was never
detained in the police cells.

Government Notice No. 419 published in Government Gazette No. 43168 of 26 March 2020; amended by
Government Notice No. 446 published in Government Gazette No. 43199 of 2 April 2020.

[11] During cross-examination, the defendant’s counsel noted a discrepancy in
the plaintiff’s evidence pertaining to whether during her arrest she was
handcuffed or not. Despite her handcuffing being mentioned in the particulars
of claim, in cross-examination the plaintiff maintained that she was not
handcuffed.
The issues
[12] The issues for determination are whether the plaintiff’s arrest and
subsequent detention were lawful and whether she is entitled to compensation
for damages suffered as a result of the alleged unlawful arrest and detention.
The legal principles
[13] In terms of our law arrest and detention without a warrant is prima facie
unlawful unless it fits the exceptions outlined under s 40 (1) of the Criminal
Procedure Act 51 of 1977 (the CPA). In this case, it is common cause that the
arresting officer effected the arrest without a warrant. The defendant’s case
hinges on the provisions of s 40 (1) (b) of the CPA.
[14] Section 40 (1) (b) of the CPA which is couched in discretiona ry terms
provides as follows:
‘40 Arrest by peace officer without a warrant.
(1) A peace officer may without a warrant arrest any person-
(a)…
(b) whom he reasonably suspects of having committed an offence referred to in
Schedule 1, other than an offence of escaping from lawful custody…’
[15] In Duncan v Minister of Law and Order 3, a landmark case that
established the jurisdictional facts required for a lawful arrest without a warrant,

3 1986 (2) SA 805 (A) at 818.

the following was stated: that the person making the arrest mu st be a peace
officer as defined under the CPA; the peace officer must entertain a suspicion
that an offence has been committed; the suspected offence must be one listed
under Schedule 1 and that the suspicion must be based on solid grounds.
[16] The test for reasonable suspicion is objective. The question is whether a
reasonable person in the peace officer’s position with the same information
would have suspected the person of having committed a schedule 1 offence.
Essentially, the legal position is that the suspicion s hould not be more than just
a hunch or a unparticularised suspicion.4
The court’s analysis of evidence
[17] In the case under consideration, there is no doubt that the arresting officer
was a peace officer as contemplated under s 40 (1) of the CPA. Notwithstanding
this, more is required to establish whether he acted within the confines of the
law.
[18] Our courts have consistently held that the justification to arrest requires a
responsible official to point to the specific statute or statutory regulatio n
conferring the power to arrest or detain. They must demonstrate that they acted
within the scope of the power conferred; and show that they observed the
relevant provisions of the statute or regulations that empowered them to take
such action.5
[19] A conspectus of facts clearly demonstrates that there was no evidence
that liquor was sold in the house. The plaintiff’s explanation regarding the
presence of few liquor bottles at home sounds plausible in the absence of
evidence demonstrating that liquor was sold. This therefore weakens the case
for a reasonable suspicion.

4 Mabona v Minister of Police 1988 (2) SA 654, 658 E-H
5 Madyibi v Minister of Police (4132/17) [2020] ZAECMHC 11;2020(2) SACR 243 (ECM) (17 March 2020).

[20] Moreover, a proper evaluation of the list of Schedule 1 offences reveals
that only serious offences are included under this Schedule. In my opinion, the
legislature would not have anticipated that covid 19 or corona virus would arise,
warranting the listing of illegal selling of liquor under Schedule 1. Therefore,
the regulation that the plaintiff allegedly violated did not fall under Schedule 1
in the list of offences in terms of the CPA.
[21] A similar finding was made by Sibiya AJ in Shobede v Minister of
Police6 where the court explicitly stated that the offence of selling liquor in
contravention of the regulations which were issued in gazette notice 43107 on
March 2020 is not listed as Schedule 1 offence in terms of the CPA.
[22] Moreover, the fact that the regulation in question allows for an admission
of guilt fine suggests that this offence was categorised as a less serious offence.
Notably, these regulations were promulg ated on an emergency basis for a
specific and brief period. In any event, under cross -examination, the arresting
officer did not even know what Schedule 1 entailed. Although this is very much
understood, the defendant’s reliance on s 40 (1) (b) of the CPA which requires
the offence allegedly committed to be listed under Schedule 1 was misplaced.
Therefore, the requirements set out in Duncan7 were not satisfied, rendering the
arrest and subsequent detention unjustified.
Quantum of damages
[23] The freedom and security of persons is safeguarded by the Constitution. 8
Section 12 of the Constitution provides that:
‘ (1) Everyone has the right to freedom and security of the person, which includes the right

6 [2025] ZAKZDHC 53 at paras 29-30.
7 Fn 3 supra.
8 The Constitution of the Republic of South Africa, 1996.

(a) not to be deprived of freedom arbitrarily or without just cause.
(b) not to be detained without a trial.’
[24] In Minister of Safety and Security v Tyulu 9, the SCA stated that 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 needed solatium for his or her injured feelings. Therefore, the
damages awarded should be commensurate with the injury inflicted.
[25] Notwithstanding this, the basic principle is that the courts should be
astute to ensure that the award made reflects the importance of the right to
personal liberty and the seriousness with which any arbitrary deprivation of
liberty is viewed.10
[26] In Rahim and Another v Minister of Home Affairs 11, the SCA stated the
following:
‘The deprivation of liberty is indeed a serious matter. In cases of non -patrimonial loss where
damages are claimed the extent of damages cannot be assessed with mathematical precision.
In such cases the exercise of a reasonable di scretion by the court and broad general
considerations play a decisive role in the process of quantification. This does not of course,
absolve a plaintiff of adducing evidence which will enable a court to make an appropriate and
fair award. In cases involv ing deprivation of liberty, the amount of satisfaction is calculated
by the court ex aequo et bono interalia the following:
(i) the circumstances under which the deprivation took place;
(ii) the conduct of the defendants;
(iii) the nature and duration of the deprivation.’


9 [2009] 4 All SA 38 (SCA) at para 26.
10 Tyulu supra at para 26.
11 [2015] 3 All SA 425 (SCA) at para 27.

[27] In the circumstances of this case, the police seriously infringed the
plaintiff’s right to dignity and privacy. The police visit was conducted at night
without any valid justification. The arresting officer acted on a tip-off and failed
to apply his mind objectively.

[28] The fact that the arrest was effected in full view of the minor children is
concerning. There was a clear disregard for the paramountcy of the best
interests of the minor children. The children were left at home at night
unattended. In her testimony the plaintiff explained how this arrest and
subsequent detention affected her emotional state. She testified that she was
very hurt and concerned about a 14 -year-old she left at home. She explained
that the 14-year-old is mentally challenged.

[29] The plaintiff testified that she was confronted by the community
members asking her to explain why she did not inform them that she was selling
liquor. She explained that the arrest and detention affected her physical well -
being. As a person suffering from arthritis, she felt very cold during her period
of detention.

[30] Regarding the duration of detention, this court accepts that the plaintiff
was arrested around 21:00 and released in the early hours of the morning around
1 a.m. This period is calculated at approximately 4 hours.

[31] The question is whether R700 000 (Seven Hundred Thousand Rand)
which is the amount claimed for damages is justified in the circumstances of
this case. The SCA 12 has recently warned legal practitioners to exercise caution
not to lend credence to the incredible practice of claiming unsubstantiated and

12 Dijan v Minister of Police [2022] ZASCA 103 (23 June 2022) at para 20.

excessive amounts in the particulars of claim. The SCA further cautioned the
courts to refrain from awarding exorbitant amounts lavishly.

[32] A similar remark was made in Pitt v Economic Insurance Co Ltd13, where
Holmes J remarked as follows:

‘I have only to add that the Court must take care to see that its award is fair to both sides – it
must give just compensation to the plaintiff but must not pour our l argesse from the horn of
plenty at the defendant’s expense.’

[33] Despite the pain and suffering caused by the unlawful arrest and
detention, I conclude that an amount of R700 000 is not justified in the
circumstances of this case. However, I have taken cognisance of all the factors
cumulatively including the awards in previous cases. 14 I therefore conclude that
an amount of R140 000 (One Hundred and Forty Thousand Rand) is justified.
Order:
[34] In the result, the following order shall issue:
1. Judgment is granted in favour of the plaintiff against the defendant.

13 1957 (3) SA 284 (D) at 287E-F.
14In Peterson v Minister of Safety and Security [2009] ZAECGH 65, Plasket J awarded
R60 000 for unlawful arrest and detention despite the plaintiff only having been in custody for eight hours, on
the basis of the indignity of the situation: the Plaintiff was arrested in a state of undress, observed by people in
the street and subjected to malicious conduct on the part of his arrestor; In an unreported judgment of Hermanus
Arnodus Barnard v The Minister of Police and Helgard Potgieter, Case no: CA98/2022, ECD, Makhanda
delivered on 3 May 2022, the Appellant was awarded a sum of R25 000 after he was unlawfully arrested and
detained for approximately six hours.

2. The defendant shall compensate the plaintiff an amount of R140 000
(One Hundred and Forty Thousand Rand) for damages suffered as a
result of unlawful arrest and detention.
3. The defendant shall pay interest at the above amount, calculated at the
legal rate, from the date of the judgment to the date of payment.
4. The defendant shall pay costs of this action on Scale A pursuant to
Rule 67A read with Rule 69 of the Uniform Rules of Court.
_______
N CENGANI-MBAKAZA
ACTING JUDGE OF THE HIGH COURT

APPEARANCES:

Counsel for the Plaintiff : Adv M Somandi
Instructed by : MSITSHANA INCORPORATED
Makhanda

Counsel for the Defendant : Adv Mzamo
Instructed by : State Attorney
Gqeberha

Heard on : 10 November 2025
Judgment Delivered on : 20 January 2026