IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION MAHIKENG
CASE NO: 745/2020
Not reportable
In the matter between:
THABISO TLHONE PLAINTIFF
and
THE MINISTER OF POLICE DEFENDANT
Coram: Reddy J
Heard: 2 October 2025
Delivered: Judgment was handed down electronically by circulation to the
parties ' legal representatives by email and released to SAFLII. The date and time
for handing down ofthejudgment are deemed the 12 February 2026 at 16:00.
Summary: Unlawful arrest and detention- the application of section 40(1 )(b)
and (e) of the Criminal Procedure Act 51 of 1977- whether the juri sdictional
requirements have been met. The distinction between the provisions of section
40( 1 )(b) and ( e) of the Criminal Procedure Act 51 of 1977. The standard of
reasonable suspicion .
ORDER
1. The arrest and subsequent detention from 2 May 2017 to 4 May 2017
were unlawful.
2. The defendant is held liable for the plaintiff 's agreed or proven damages.
3. The quantum proceedings are postponed sine die to a date to be allocated
by the Registrar to be served before Reddy J.
4. The defendant is to pay the costs in terms of rule 67 A on a party and party
Scale B.
JUDGMENT
Reddy J
Introduction
[ 1] This is an action for delictual damages arising from the unlawful arrest,
detention, and search of the plaintiff, Mr Thabiso Tlhone (Tlhone). The relevant
timeframe that constitutes the basis of this action runs from 2 May 2017 to 4 May
2017. The defendant , the Minister of Police (the Minister), contended that the
arrest and detention were justifi ed within the tenets of s 40( 1 )(b) and ( e) of the
Criminal Procedure Act 51 of 1977 (the CPA). The Minister denied that Tlhone
had been searched.
[2] As agreed between the parties, the issues of liability and quantum were
separated in terms of rule 33(4) of the Uniform Rules of Court (URC). It follows
that this Court is confined to the determination of the lawfulness of the arrest,
detention, and search of Tlhone. During the trial, Tlhone jettisoned the latter
claim.
Background
[3] The Minister's case in broad strokes is as follows. On 26 April 2017, police
officers acting on information , including Sergeant Konzani (Konzani), arrived at
a premises colloquially described as "hostel-like" rooms where several
individuals were found engaged in the buying and selling of goods. Subsequently,
from these goods, windows were identified by Mr Salima as his stolen property.
Significant ly, Tlhone was not present when these goods were seized. Notably, the
Minister relied on several strands of hearsay evidence to establish a nexus
between the blue shop, the seized goods, and Tlhone.
[ 4] On 2 May 2017, Tlhone presented himself at the Mmabatho police station.
Konzani claims that Tlhone admitted to ownership of the goods seized. Konzani
surmised that there was sufficient evidence against Tlhone and arrested him
without a warrant on a charge of "possession of suspected stolen property."
Tlhone was not afforded the opportunity to proffer an explanation for the
possession of the goods seized.
[5] Tlhone closed his case without leading any evidence, predicating such
election on the Minister's failure to discharge its statutory onus.
Tlhone's Submissions
[ 6] Tlhone contends that his arrest and subsequent detention were unlawful
because the Minister failed to discharge its burden of proof. Tlhone's submissions
pivot on three pillars. First, Tlhone maintains that there existed a lack of a
reasonable suspicion at the time of his arrest. This, Tlhone advances, resulted
from his arrest for a "non-existent offence" ("Possession of suspected stolen
property") rather than the correct statutory charge under s 36 of the General Law
Amendment Act 62 of 1955. Tlhone submits that, notably, Konzani conceded he
did not ask him for an explanation before the arrest, which Tlhone suggests is
fatal to the Minister's defence. Tlhone underscores that he was not found in actual
physical possession of the goods at the time of seizure.
[7] Second, Tlhone posits that Konzani exercised his discretion improperly in
that the police officer failed the Mabona 1 test by not assessing information
critically and failing to verify facts. Moreover, Tlhone maintains that Konzani did
not consider less drastic measures to secure his attendance at court, such as a
summons, despite there being no urgency and the fact that Tlhone, having a fixed
address, had cooperated .
[8] Third, Tlhone claims that his further detention became unlawful because
he was not informed of his right to police bail as evinced in s 59A of the CPA as
soon as reasonably possible, which is a peremptory constitutional injunction.
Tlhone proposes that there was also contradictory evidence regard ing whether he
was taken to court on the release date, suggesting th e arrest may not have been
for the sole purpose of securing his attendance at court.
1 Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE)
The Minister's Submissions
[9] The Minister maintains that the arrest of Tlhone was lawful in terms of s
40(1)(b) or 40(l)(e) of the CPA, underscoring that the jurisdictional threshold of
these requirements was met.
[l OJ Significantly, the Minister avers that the police acted on information from
a reliable source and found property at Tlhone's premises. The property was
identified by complainants using unique marks, keys, and invoices. The Minister
argues that the standard for "reasonable suspicion" is low and only requires
specific and articulable facts, which threshold was met.
[ 11] The Minister states that while Tlhone was not physically present during the
search, he was in control of the business premises where the goods were found
and later confirmed ownership . This possession, the Minister alleges, is legally
sufficient for the application of s 40(1 )(e) of the CPA and s 36 of the General Law
Amendment Act 62 of 1955.
[ 12] The Minister suggests that Tlhone's case suffered a procedural
shortcoming . The Minister continues that this was caused by the failure of Tlhone
to have properly and correctly exercised his right to cross-examination. This was
laid bare by Tlhone's failure to have challenged material evidence in the
Minister's case and crucially by an informed election not to put Tlhone's version
to same. The Minister contends that failure to observe these canons of cross
examination should result in the undisturbed evidence in the Minister's case being
accepted as true. As a side issue, the Minister was concerned that Tlhone had
improperly raised new issues for the first time in his heads of argument. While
this may be so, nothing really turns on it.
[ 13] The Minister claimed Tlhone was arrested to secure his court attendance
and was informed of his rights. He was taken to court within forty-eight ( 48)
hours, where the matter was not enrolled .
Legal Prescripts
[14] It is trite law that every interference with physical liberty is prima facie
unlawful. Once a plaintiff establishes the fact of arrest, the onus shifts to the
defendant to justify the lawfulness of that arrest. In this matter, the Minister
placed exclusive store on s 40( 1 )(b) and ( e) of the CPA to negate the unlawfulness
of Tlhone's arrest.
[15] For a warrantless arrest under section 40(1)(6) of the CPA to be lawful, the
following jurisdictional requirements must be present: the arrestor (i) must be a
peace officer; (ii) must entertain a suspicion; (iii) the suspicion must be that the
suspect committed an offence referred to in Schedule 1 of the CPA; and (iv) the
suspicion must rest on reasonable grounds. In Minister of Safety and Security v
Sekhoto2, the Supreme Court of Appeal elucidated that once these juri sdictional
factors are present, a discretion to arrest arises. A peace officer is not obliged to
arrest if a less intrusive alternative is available that can secure the attendance, but
the burden shifts to the plaintiff to prove that the arrest was exercised irrationally.
[16] Under section 40(1)(e) of the CPA, the suspect must be found in
possession of property reasonably suspected to be stolen, and the arrestor must
reasonably suspect the person of having committed an offence in respect of that
2 (2011) I SACR 315 (SCA) paragraph 6.
property. In Minister of Police v Ose3, the court held that the mere possession of
goods is insufficient; the peace officer must have objective grounds for the
suspicion, such as an inability to provide a satisfactory explanation at the time.
The Fundamental Distinction Betweens 40(l)(b) and (e)
[ 1 7] Section 40( 1 )(b) is tethered strictly to Schedule 1 offences; in contrast, s
40(1 )( e) is a specific power related to possession . It does not require the
underlying crime to be Schedule 1. It triggers when a person is found with
property that is reasonably suspected to be stolen and the person is suspected of
having committed an offence in connection with that property.
[ 18] A further differential in respect of these provisions is what can be referred
to as the objective of the suspicion. In s 40(1 )(b ), the peace officer's suspicion
must be directed to the suspect's conduct, referring with specificity to the offence
which was committed. In contrast, ins 40(l)(e), the suspicion is anchored to the
property itself, which axiomatically extends to the person in possession of same.
Principal Issues
[ 19] The dispute before this Court crystallises into a fundamental inquiry, that
is, whether the warrantless arrest and subsequent detention ofTlhone were lawful
within the purview of s 40(1)(b) or (e) of the CPA.
Discussion
[20] The evidence of Konzani is key to the determination of whether the
Minister cleared the initial hurdle by proving the jurisdictional requirements that
3
(CA70/2023) (2024] ZAECMHC 78(11 June 2024) paragraph 19.
constitutes 40(1)(b) or (e) of the CPA. Central to this finding is whether Konzani
acted on a suspicion based on reasonable grounds.
[21] The test to be applied to whether a suspicion is reasonable is an objective
one- the suspicion, to qualify as a reasonable one, must be objectively
sustainable.
[22] In Mahana v Minister of Law and Order and others-1, Jones J described
what this entails in the following way:
"Would a reasonable man in the second defendant's position and possessed of the same
information have cons idered that there were good and sufficient grounds for suspecting that
the plaintiffs were guilty of conspiracy to commit robbery or possession of stolen property
knowing it to have been stolen? It seems to me that in evaluating his information a reasonable
man wou ld bear in mind that the section authorises drastic police action. It authorises an arrest
on the strength of a suspicion and without the need to swear out a warrant , i.e., something
which otherwise would be an invasion of private rights and personal liberty. The reasonable
man will therefore analyse and assess the quality of the information at his dispo sal critically,
and he will not accept it lightly or without checking it where it can be checked. It is only after
an examination of this kind that he will allow himself to entertain a suspicion which will justify
an arrest. This is not to say that the information at his disposal must be of sufficiently high
quality and cogency to engender in him a conviction that the suspect is in fact guilty. The
section requires suspicion but not certa inty. However, the suspicion must be based upon solid
grounds. Otherwise , it will be flighty or arbitrary, and not a reasonable suspicion."
4 Ibid 658 G-H.
[23] In Biyela v Minister of Police,5 the standard of a reasonable suspicion was
stated as follows:
"The standard of a reasonable suspicion is very low. The reasonable suspicion must be more
than a hunch; it should not be an unparticularised suspicion. It must be based on specific and
articulab le facts or information. Whether the suspicion was reasonab le, under the prevailing
circumstances, is determined objective ly.
What is required is that the arresting officer must form a reasonable suspicion that a Schedule
1 offence has been committed based on credible and trustworthy information. Whether that
information would later, in a court of law, be found to be inadmissible is neither here nor there
for the determination of whether the arresting officer at the time of arrest harboured reasonab le
suspicion that the arrested person committed a Schedule 1 offence.
The arresting officer is not obliged to arrest based on a reasonable suspicion because he or she
has a discretion. The discretion to arrest must be exercised properly. Our legal system sets great
store by the liberty of an indiv idual and, therefore , the discretion must be exercised after taking
all the prevailing circum stances into consideration."
[24] Konzani is a police official who is included under the definition of a peace
officer. Therefore , this jurisdictional fact has been met. It is common cause that
Tlhone was not present when the goods were seized on 26 April 2017. Konzani
grounded his suspicion that Tlhone was the owner of the goods entirely on
hearsay evidence. Biyela endorses this approach; however, Biyela advocates that
hearsay evidence can ground reasonable suspicion if it is corroborated by other
evidence. Of course, it follows that the reliability and the source of the hearsay
are critical features that must be given due consideration in the assessment of the
hearsay.
s (1017/2020) [2022] ZASCA 36; 2023(1) SACR 235 (SCA) (1 April 2022) paragraphs 34 -
36.
[25] Tlhone was never found in actual possession of the property. There is no
objectively verifiable evidence to confirm Tlhone's possession in our law in any
form.
[26] The Minister's contention that Tlhone admitted to the possession of the
seized goods is not borne out by the facts. Strictly speaking, the timeline
contradicts the existence of any admission by Tlhone as regards his possession.
Konzani's statement of arrest deposed to on 2 May 201 7 is legally deficient in
this material respect. Put differently, Tlhone makes no admission regarding his
possession.
[27] In a startling turn within the body of the investigation, is an undated
statement deposed to by Tlhone where he states as follows:
"On 26/04/2017 my place of residence was searched, during that time I was not at home and
my properties were confiscated by police, during that time there was no tenant at place,
everything that was confiscated at my yard belongs to me that is all."
[28] The veracity and authenticity of this affidavit is brought into sharp focus
on several levels. First, there is no date. Second, on 2 May 2017, Tlhone was
arrested. He made no admissions. Third, in his interview with a police officer on
3 May 2017, Tlhone elected to make a statement before a magistrate or in the
presence of his legal representative. Fourth, the existence of this statement is left
hanging by a thread by an entry on 28 February 2018 made by the overseeing
prosecutor which reads:
"It must be clarified who exactly rented the property and which rooms exactly. Was the whole
yard rented or only parts? Obtain detailed statement from the owner."
[29] Moreover, Konzani harboured profound reservations regarding the merits
of the case. Differently put, Konzani intended to refer the case to a detective to
provide an independent review of the merits of the case to ensure objectivity. The
ineluctable inference is that Konzani was doubtful regarding whether Tlhone was
properly linked to the offence.
[30] In sum, Konzani's evidence is inadequate on the reasonableness of his
suspicion. Our law uses the Mabona test to determine if a suspicion is reasonable.
This test requires a reasonable person to "analyse and assess the quality of the
information at his disposal critically" and not accept it "lightly or without
checking it where it can be checked."
[31] In my view, a reasonable officer in possession of the same information as
Konzani would have investigated the nexus between Tlhone and the seized goods
more purposely, more especia lly given Tlhone's absence during the seizure and
the nature of the "hostel-like" premises. Moreover, Konzani failed to meet the
low standard in that he did not investigate whether the rooms where the goods
were found were being rented out to third parties notwithstanding the "hostel
like" nature of the building. The lack of evidence of "possession" ( either actual
or constructive) at the time of the seizure renders the suspicion unreasonable.
[32] Accordingly, the Minister failed to establish the jurisdictional facts
required for a lawful arrest either in terms of s 40( 1 )(b) or ( e) as the suspicion of
Konzani was not based on objective facts. It is self-evident that the arrest and
subsequent detention were therefore unlawful.
Costs
[33] While costs are at the discretion of the court, the genera l principle is that
costs follow the result. I am unpersuaded that there exists any basis to deviate
from this principle.
Order
[34] Resultant ly, I make the following order:
1. The arrest and subsequent detention from 2 May 20 l 7 to 4 May 2017
were unlawful.
2. The defendant is held liable for the plaintiff's agreed or proven
damages.
3. The quantum proceedings are postponed sine die for a date to be
allocated by the Registrar to be served before Reddy J.
4. The defendant is to pay the costs in terms of rule 67 A on a party and
party Scale B.
' )D\i
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Appearances:
For the p laintiff:
Instructed by:
For the defendant:
Instructed by:
Advocate H D Du Plessis
Labuschagne Attorneys
Mahikeng
Advocate M Moagi
The State Attorney,
Mahikeng