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[2026] ZAGPJHC 115
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Mametje and Others v Minister of Police (21947/2020) [2026] ZAGPJHC 115 (13 February 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number: 21947/2020
(1)
REPORTABLE: /NO
(2)
OF INTEREST TO OTHER JUDGES: NO
In
the matter between:
GEORGE
MAMETJE AND OTHERS
PLAINTIFF
and
MINISTER
OF POLICE
DEFENDANT
JUDGMENT
MOTHA J
Introduction
[1]
The land question is like a revolver that
South Africa keeps playing Russian roulette with. This hot
potato leaves South Africans
stupefied. Unless the adults in the room
wake up from their slumber and deal decisively with it, it is
destined to explode when
least expected. As with the atomic bombs in
Hiroshima and Nagasaki, I am afraid no one will be spared the
catastrophic comeuppance.
[2]
At the peak of COVID-19, on 25 June 2020,
twenty-four people were incarcerated for occupying parcels of land
and erecting shacks.
Twenty-one of them brought an action for damages
arising from the alleged unlawful arrest and detention. Mercifully,
the parties
reached a settlement with respect to seventeen (17)
plaintiffs. Regarding Joaquim Pedro Lambo, Easy Mphahlele, Vincent
Thenga,
and Reginald Maluleke (the four plaintiffs), the Minister of
Police (the defendant) denied arresting them. Furthermore, the
defendant
denied assaulting Lethu Loveman Masoka (Masoka).
[3]
Therefore, before this court, the issues
for adjudication are circumscribed to whether the above-mentioned
four were, indeed, arrested
with the seventeen and whether Masoka was
assaulted.
[4]
Since
the defendant denied depriving the four plaintiffs of their liberty
by either arresting or detaining them, the burden to prove
otherwise,
on a balance of probabilities,
[1]
rested
with them. Accordingly, the four plaintiffs agreed to commence
proceedings.
[5]
In proving their claims, they, together
with Masoka, testified, and called two witnesses, Tshepo Ngobeni, one
of the seventeen,
and Dr. Khan, the medical doctor who examined
Masoka upon his release from the cells.
[6]
For the defendant, two witnesses testified,
Beauty Van Rooyen (Van Rooyen) and Nthabiseng Moleko (Moleko).
The summary of the
evidence
Joaquim Pedro Lambo
[7]
First to take the stand was Joaquim Pedro
Lambo. In his evidence-in-chief, he informed the court that on 25
June 2020, he left his
residence on foot and headed to a nearby veld
to cut wood. Whilst walking in the open veld, he noticed that yonder
a group of people
had gathered, and even police officers were amongst
them.
[8]
As he continued walking, a female police
officer called him. She instructed him to sit on the ground with
others who were already
seated. When a police van arrived, they were
all transported to De Deur police station. After confiscating their
phones and belts,
the police recorded their full names and detained
them in a single cell.
[9]
Inside that cell, he counted twenty-four
people, and two had to share one blanket. The cell, including the
toilet, was filthy. For
the entire five days of their detention, he
did not bathe. On the fifth day, they were driven to court; however,
they were released
without appearing before a magistrate.
[10]
At the police station, he was informed that
he had been arrested for trespassing. A police officer in civilian
clothes asked for
his name and surname. He gave him the name Joaquim
Pedro Lambo. When the police officer asked him to write his name and
surname,
he revealed that he could neither read nor write. Since the
police officer could not write the name, he provided another name and
surname, George Nkomo.
[11]
He did not know if he had written it
correctly, since he is illiterate. Finally, he testified that he was
not shown any court order.
Cross-examination
[12]
Under cross-examination, he confirmed that
the notice of rights in terms of the Constitution was shown to him
and he signed it.
Confronted with his assertion that he could not
write, yet he had signed the notice of rights, he said he could not
write his name,
but he could move a pen. Therefore, his signatures
differ across documents. Responding to a question about why he did
not use a
thumbprint, he insisted that he could move a pen but could
not sign.
[13]
In response to a claim that the signature
on the document was not his, he stated that it was only slightly
similar to the one on
his identity document. When asked about the
signature on his passport, which was markedly different from the one
on the document,
he said he had written it because he could not
write. When pressed to explain, he gave a tangential response and
said that regarding
signatures, he knew what to do.
[14]
He accepted that he had given the police an
incorrect name and surname and added that he did so because neither
he nor the police
could write his correct name.
[15]
When asked about his date of birth, he
stated that he could not recall whether he had provided it to the
police. Nevertheless, he
testified that he was born on 6 February
1982 in Nyambani, Mozambique, and he resided at 5[… V[…],
L[…] S[…],
at the time of the incident.
[16]
Defendant’s counsel asked him for an
explanation for the contradictions between his particulars and George
Nkomo’s statements
to the police. The contradictions were:
·
George Nkomo was born on 25 June 1982. In
response to this contradiction, he said the police might have erred.
·
George Nkomo was born in Tzaneen. He
responded that it could have been a mistake because another George,
born in Tzaneen, had been
arrested. It is noteworthy that he did not
know the surname of the second George.
·
George Nkomo resided at 5[…] V[…]n.
Confronted with discrepancies in the addresses, he acknowledged that
George Nkomo’s
address was different from his own.
[17]
In response to a question regarding his
relationship with the second George, he stated that he met him at the
place where they cut
wood. He accepted the proposition that the
second George was his friend.
[18]
Counsel confronted him with the particulars
of the second George (SAP 3M). The second George was born in Limpopo,
and his surname
is Mametjie. In reply, he simply reiterated that the
police erred in stating that he was born in Tzaneen.
[19]
When it was put to him that only two
Georges had been arrested on the day in question, he insisted he was
George Nkomo.
[20]
Having repeated that he had been arrested
for trespassing, counsel showed him the notice of rights, which
recorded that George Nkomo
had been arrested for contempt of court.
[21]
He testified that he could count because he
deals with money. Accordingly, he could determine that 24 people were
inside the cell.
Re-examination
[22]
When asked why he chose the name George, he
said that in the township, they could not pronounce Joaquim, so they
used George instead.
The name Pedro in his passport referred to his
father’s name. He said that all Mozambican passports contain
both one’s
name and one’s father’s name.
[23]
During his interaction with the court, he
was surprised to learn that the surname Lambo was listed among his
names on the passport.
He stated that his surname was Koma, but it
does not appear on his passport. He latched onto his counsel’s
suggestion that
Lambo was his clan name.
Analysis of his
evidence.
[24]
His explanation for lying about his name
and surname was unsound. If he could not write his name, Joaquim
Pedro Lambo, he certainly
could not write George Nkomo. A false name
would not cure illiteracy. I found him an unreliable witness, given
to lying whenever
the shoe pinched. He admitted he did not tell the
truth. He was ill at ease and hesitant in his answers. It seemed to
me that he
formulated his version as the case progressed. To me, it
was patent that George Nkomo and the plaintiff were two different
people,
given the incorrect dates of birth, addresses, and places of
birth, to name but a few. He was not a credible witness, and his
version
seemed improbable.
Easy Mphahlele
[25]
Easy Mphahlele testified that on 25 June
2020, he was at home when he received a phone call reporting that
police officers and SANDF
members were arresting people. He decided
to find out what was happening. On his way to the incident, he met
Bongani Mkhize, a
resident of his street, and hitched a ride in
Mkhize's van. Upon arrival at the scene, he was arrested because he
could not flee,
as there were soldiers. Along with others, he was
taken to De Deur police station, where he was detained and his cell
phone confiscated.
[26]
It was his testimony that women and
children were also arrested; however, they were not brought to the
police station. His detention
spanned from Thursday to Monday, when
he was transported to court. The cell conditions were atrocious, and,
to make matters worse,
it was during COVID-19. COVID-19 regulations,
such as social distancing, were not followed, and they drank water
from the toilet
tap using a single cup. There was no toilet paper,
the sleeping blankets were dusty, and two people had to share a
sleeping sponge.
They were given a single meal per day.
[27]
During his evidence-in-chief, he testified
that he gave the police an incorrect name, Thabo Motaung, because he
was angry about
being arrested for no reason. When it came to
furnishing his identity number and physical address, he provided the
correct details.
Cross examination
[28]
Having conceded that he had lied to the
police officers, he acknowledged that the signature on Thabo
Motaung’s document was
not his. When questioned about the
signature in the notice of rights, he hesitated to answer and
eventually said it was not his
signature. He, moreover, stated that
he did not remember signing that way.
[29]
Regarding the notice of rights (Exhibit
AA), he said the detainee's signature on the document was his. When
asked whether that signature
was the one he usually used to sign
documents, he answered in the negative. He then abruptly changed and
denied ever signing the
notice of rights.
[30]
Referring
to
my
brother Wright's directive dated 07 June 2023 (exhibit EE), counsel
questioned him about his statement. He admitted that the
signature on
the statement was his. Further, he was compelled to accept that the
signature differed markedly from that on the notice
of rights and the
statement regarding the interview with the suspect, Thabo Motaung.
[31]
He had to be told several times to speak
up. He said he was staying at both Vlakfontein and Phumulamqashi.
During the incident,
he had been in Phumulamqashi since 2018 but did
not know his address.
[32]
Referring to the statement the plaintiff
gave to his lawyers, counsel confronted him with several
contradictions, namely:
·
He conceded that his testimony differed
from his statement to his lawyers. He wrote that on the day in
question, he was at Shoprite,
but in court he testified that he was
at home.
·
In his statement, he said he was with
Tshepo Ngobeni and Bongani Mncube and that he went to the location
because he owned a plot
and his family members had been arrested.
·
When asked where his plot was, he said
Doornfontein. Upon further questioning, he said he made a mistake; it
was in Elandsfontein.
·
In his statement, he said he had three
meals a day, contrary to the single meal per day he mentioned in his
evidence in chief. In
his response, he said that they sent the police
to buy meals for them outside the police station. Therefore, when he
referred to
a meal, he meant the one provided by the State.
[33]
Finally, it was put to him that the country
was at Alert Level 3, which restricted people's movements and caused
fear of the police.
In response, he said they were not arrested for
COVID-19 and that those rules did not apply where he lived.
Analysis of the
evidence.
[34]
Like Joaquim Pedro Lambo, he offered no
credible explanation for giving a false name and surname. Anger is no
reason to lie; people
tend to tell the truth when angry. It is
counterintuitive to go where the police are arresting people. Beyond
the differences in
names and surnames, the differences between his
signature and Thuto Motaung’s cannot be ignored. The
inconsistencies between
his statements to his lawyers and the
evidence in court are most concerning. I found his evidence
improbable. He was hesitant and
lowered his voice when asked probing
questions. I found him unreliable.
[35]
What happens when Thuto Motaung comes
forward and makes claims against the defendant? Would the court pay
for two Thutos? It is
common cause that 24 people were arrested, and
some did not lodge claims.
Reginald Maluleke
[36]
He testified that he left his home to fetch
wood. After crossing a nearby bridge, he saw metro police, SAPS and
the SANDF approaching.
Since he had committed no crime, he continued
walking toward the area teeming with law enforcement authorities. He
was carrying
an axe, with which he cut wood. A police officer called
him and ordered him to get inside a police van. He did not flee
because
he was near the police and could be shot. They were
transported to De Deur police station.
[37]
He was never given a reason for his arrest.
During this incident, he was walking with others, including his
brother-in-law, who
managed to run away and evade arrest. When the
police recorded their names and surnames at the station, he gave them
an incorrect
name and surname, Tsunduka Chauke. He did this because
he was scared; it was his first time in jail, and he was arrested in
a strange
manner.
[38]
He could not remember which date of birth
he gave to the police. However, he remembered and confirmed that he
had signed documents
at the police station. The police informed him
that he was arrested for trespassing. When his counsel referred him
to the signature
on the notice of rights and asked whether he had
signed the document, he denied any knowledge of the signature and
said he did
not remember signing it.
Cross-examination
[39]
He conceded that he had lied about his
names and added that he had done so because he was frightened, and
that it was the only lie
he told the police. On 25 June 2020, he said
he had been residing at Phumulamqashi for 4 months and did not know
the address because
it was a new place.
[40]
Counsel put to him that he could not be
Tsunduka Chauke because he was born in 1988, whereas the plaintiff
was born in 1987. He
accepted the differences.
[41]
Furthermore, he conceded that Tsunduka
Chauke’s address was different from his.
[42]
Having not been in possession of a permit,
Counsel put it to him that people could not walk around without a
permit during that
period; he said he did not remember.
[43]
He acknowledged that the signature on the
notice of rights differed from the one on his statement.
[44]
When reminded that, in his evidence in
chief, he said he used his correct signature at the police station,
he said he could have
made a mistake because he did not remember. But
he remembered using the name and surname Tsunduka Chauke.
[45]
He conceded that paragraph 2.1 of his
statement contradicted his evidence in chief, in that it stated they
were on their way to
the 4-way stop to look for odd jobs, while he
testified that he was going to look for wood. He added that it was
his brother-in-law
who was seeking odd jobs.
[46]
He could not answer a simple question about
whether Vincent Tenga was his brother-in-law. He laughed and shook
his head, then said
he was. When questioned by the court about his
conduct, he said the incident had occurred a long time ago and that
his memory had
faded.
[47]
Counsel reminded him that he had stated his
brother-in-law had run away and was not caught. He said he wanted to
explain and put
it right. When the police called him, his
brother-in-law was behind him. When he arrived at the police station,
he found him there
because they had not traveled in the same van.
[48]
He conceded that he had said his
brother-in-law was not caught. Counsel put it to him that he was
lying to the court, just as he
had lied to the police. Responding, he
said it was his first time in court and that he was trying to calm
himself, but he was behind
him and he did not look back.
[49]
It was put to him that he was not arrested
on the day in question. He insisted that he was put in a van.
Analysis of his
testimony
[50]
He failed to explain why he gave a false
name and surname. His brother-in-law testified that he was walking
ahead of him. Accordingly,
he should have seen that he never ran
away. Furthermore, his brother-in-law testified that they were
together when the police told
them to demolish shacks. He never
mentioned demolishing shacks. He was not a credible witness.
His testimony was unreliable and riddled with
inconsistencies. In short, it was improbable. Whenever the shoe
pinched, his answer
gravitated to two responses: either he erred in
his testimony, or it was an issue of memory.
Vincent Tenga
[51]
On 25 June 2020, he
left
his house to look for work, accompanied by his brother-in-law,
Reginald Maluleke. While on their way and about to cross a bridge,
a
bakkie and a police vehicle suddenly emerged. The police called them.
He tried to run but could not because he was carrying tools,
a pick,
and a spade. The police ordered them to lie flat on the ground,
joining others already on the ground. They were instructed
to do
push-ups. Later, they were told to demolish shacks on the open land.
[52]
Thereafter, they were transported in a
police vehicle to De Deur police station. At the police station, he
was told that he had
been arrested for trespassing. He was detained
for four (4) days without appearing in court. The cell was not a good
place, and
there was only one blanket for many people. Inside the
cell, which he said was 6 by 4 feet, there were 22 of them.
Throughout his
stay, he never bathed.
[53]
He stated that Reginald Maluleka was
present when they were told to lie down. In the notice of rights, he
gave the police the name
Fhumulani Tshirhula out of fear. After
confirming that the signature on his identity document was his, he
stated that he had signed
the notice of rights with an incorrect
signature because it was his first arrest and he was scared.
[54]
Regarding meals, he said they did not eat
on the first day. On the second day, they were fed soft porridge.
When they were
taken to court, they did not enter the courtroom.
Cross-examination
[55]
Having confirmed that he was walking with
Reginald Maluleka, his brother-in-law, he testified that when the
police called them,
he walked ahead of Reginald Maluleka and did not
attempt to run. Reginald had a panga to chop wood. When the police
told them to
demolish the shacks, Reginald Maluleka was present. They
separated when Reginald went to the higher part of the land to
demolish
shacks. They did not board the same police car on the way to
the police station. The police took Maluleka’s panga and his
shovel.
[56]
He reiterated that he never ran away. In
the cell, he estimated that there were 22 to 23 people. He conceded
that he lied to the
police by providing an incorrect identity number,
name and surname.
[57]
When asked about the meals, he said they
were provided with three meals a day, save for the first day. He
testified that food from
outside the prison was not allowed, and that
no one paid them a visit. Even the police did not buy them food.
[58]
He struggled to explain where the toilet
was located inside the cell. He said there were two slabs, one on
which people sit and
another at the corner. There was no door to the
toilet. He used the toilet but never took a bath.
[59]
When counsel pointed out that in his
statement, he said he had one meal on the first day, he attributed
the inconsistency to a memory
lapse.
Re-examination
[60]
He drew a rough sketch of how the cell was,
describing it as consisting of two slabs and a toilet in the middle,
which had two walls
without a door. The toilet walls were estimated
to be two meters high. The bathroom had a tap but no soap, and there
was no toilet
paper.
Analysis of his
testimony
[61]
His testimony was at odds with his
brother-in-law’s testimony. Contrary to his testimony, his
brother-in-law testified that
he ran away. It is common cause that
Tshepo Ngobeni was arrested, yet contrary to Tshepo Ngobeni’s
testimony that the toilet
in the cell was in a corner, he testified
that it was in the middle. Contrary to both Tshepo and Masoka’s
testimony, he testified
that they were given three meals a day.
Beyond lying about his name and surname, there was an imprint of
inconsistencies and contradictions
in his evidence, especially when
juxtaposed with evidence
aliunde
.
He was not a credible witness.
Assault
Tshepo Ngobeni
[62]
The next witness to testify was Tshepo
Ngobeni (Tshepo), a community leader. He was at home when he received
a call that police
officers were at the plots. He decided to head to
the scene. On his way, he was given a lift in a Toyota bakkie driven
by a man
who was with Tumelo and heading to the scene. Upon arrival,
they parked the car about 4 meters away, and he walked to the scene.
[63]
At the scene, there were police officers,
members of the SANDF, and white people. A police officer grabbed his
right arm and ordered
him to sit down. Already seated were three
ladies and some guys. He also mentioned Tumelo, Lethu Masoka,
Vincent, and Mkhize.
[64]
He said that he was victimized like his
friend Lethu Masoka, who was kicked and beaten until an overweight
police officer came to
his aid. Masoka was kicked and slapped with an
open hand whilst asking him why he was taking a video. A lady, the
station commander,
started off the assault by slapping him, and two
male officers joined her.
[65]
When asked whether he could describe the
four plaintiffs if he saw them, he said that, because several people
had been arrested
and their minds were not right, he could not
describe them, except to say that Mkhize was a dark-skinned bakkie
driver and Tumelo
was short and looked like a colored person.
[66]
In the cell, there were more than twenty
people, and he could not remember any of them except his friends.
Cross-examination
[67]
He repeated that he saw a lady smacking and
kicking Masoka, joined by two guys. They were wearing boots and
injured his shin.
He saw that Masoka had bruises from the assault.
[68]
He said they were fed once a day. On
Sunday, a kind-hearted white police officer took pity on him and
drove him home to fetch his
medication. He estimated the cell's size
at 6 x 3 feet.
[69]
When questioned by the court, he stated
that on Monday, they were driven to a veld and remained there for 30
minutes. Eventually,
they were driven to court and released without
appearing before a magistrate.
[70]
Contrary to what Vincent Tenga told the
court, he stated that the shacks were demolished by the police and
the SANDF. On the day
in question, he met Mkize near Shoprite when
his friend, Masoka, called him. In his area, the COVID-19 lockdown
was not observed;
people went about their businesses as usual. At the
scene, he said there were white people wearing shorts and displaying
AWB paraphernalia.
[71]
The food rationing was once a day,
contradicting the witnesses who said they were fed three meals a day.
He never ate that food,
and the police, taking pity on them, would
bring them bread only at night.
[72]
He provided the court with a rough sketch
of the cell. In his sketch, the toilet was located at the corner, not
in the middle.
[73]
Under re-examination, he suddenly could not
remember and repeatedly stated that he could not remember, as his
testimony was contrary
to the plaintiffs'. For example, he testified
that the shower had a shower head, which was contrary to what others
said.
Analysis of his
evidence
[74]
His testimony was coherent and logical
until he was re-examined. He began to lose his memory during
re-examination, especially when
he had to explain the differences
between what he testified to and what the plaintiffs, particularly
Vincent, said. Regarding Masoka’s
assault, his testimony
corroborated him in material respects, and the cross-examination did
not shake it. When talking about the
assault, he became animated and
demonstrative about how it occurred. I found him credible in his
narration of the assault.
Loveman Masoka
[75]
He was at Vlakfontein when he received a
call that the police, JMPD, and soldiers were heading to where they
had installed shacks.
He went there to check whether his shack had
not been demolished. He called Tshepo to inform him that their shacks
were being demolished.
Whilst on the way and talking to Tshepo on the
phone, a police officer, assisted by a soldier, arrested him,
accusing him of being
on a video call. He was put inside a police
van. After remaining in the car for some time, more people were
brought in, and finally,
they were driven to De Deur Police Station.
[76]
At the De Deur Police Station, he was
confronted by a female officer who accused him of being on a video
call. After denying he
was on a video call, he asked the police why
it would be wrong if they were acting legally. A female police
officer slapped him
with an open hand and swore at him in Sesotho.
[77]
Another female police officer and male
police officers joined in the assault. An overweight police officer
opened the cell door
for him to enter. He tried to run away,
but they continued beating him until he wet his pants and started
bleeding.
[78]
The same police officer, who helped him by
opening the cell, castigated his colleagues. He requested to talk to
the station commander.
When he was taken to the station commander,
she told him that the police officers were not stationed in De Deur
and she could not
help him. He was taken back to the cell, which was
about 8 by 5 feet.
[79]
The cell, including the toilet with no
toilet paper, was dirty. Following Tsepho’s suggestion, they
took a jacket from one
of the detainees and swept the place clean.
They were fed twice a day. Early in the morning, they were given tea
and bread. At
midday, they were given rice with tiny pieces of meat.
[80]
There were blankets and mattresses covered
with plastic. Two people shared one blanket.
[81]
He mentioned that besides sustaining a blue
eye on his left eye, he also has scars on his shin from the assault.
[82]
He was informed that he had been arrested
for trespassing.
[83]
Following their release from custody, he
visited a medical doctor who treated him with tablets. His left leg
still troubles him.
Cross examination
[84]
He testified that his assault occurred at
De Deur police station. Under cross-examination, he said that six
police officers assaulted
him. The other detainees witnessed his
assault. He was beaten inside by three police officers, and outside
the cell they were six.
Tshepo testified that he was assaulted by two
male officers and one female officer. He said that was a lie. He also
denied that
he was assaulted by a station commander, contrary to
Tshepo’s testimony.
[85]
He said under his eye he had a black mark
and did not bleed. The swelling lasted for two weeks. He was
questioned about Tshepo’s
failure to mention a swelling, even
though he mentioned that he saw a bruise on his face.
[86]
For the first time, he said that he had
been beaten on the body during cross-examination. Again, under
cross-examination, he stated
that he had hidden his left leg during
the assault because it had pre-existing injuries.
[87]
His left leg had a fracture from a prior
incident. He explained that blood trickled from his shin for five
days. He agreed that
the scars on the left leg have faded and are
faint.
[88]
Counsel put it to him that he was not
injured; hence, the station commander did not refer him for medical
treatment.
[89]
When asked why he did not lay criminal
charges against the police, he said he returned to the police station
after two days, only
to be laughed at.
[90]
He said it was not allowed for the police
to buy food for them, but they did so only at night.
[91]
He stated that he visited the doctor once.
He said he had known Easy Mphahlele, who was known as Tumelo
Mphahlele, since 2015.
Analysis of his
testimony
[92]
He came across as a self-assured man. He
did not exaggerate the extent of his injuries. He took the court into
his confidence and
volunteered that he had a preexisting injury to
his left leg. Dr. Khan’s notes showed that he told him the same
version he
had given to the court. Overall, he was a credible witness
and his testimony was not impeached during cross-examination.
Dr. Mohammed Moosa
Khan
[93]
He testified that he examined Loveman
Masoka on 29 June 2020, and his clinical findings included bilateral
leg abrasions, that is,
bruising on both legs. He also found a
swelling on Masoka's left eye, which was from a blunt injury.
Cross-examination
[94]
Under cross-examination, he said the wound
was not open and there was no bleeding. He stated that the swelling
could last three
to five days or a week. He could not say how long
the swelling had been present at the time of his examination. He
accepted that
the injuries might have resulted from a fall.
[95]
He testified that Masoka told him he had
been arrested for trespassing and that his injuries were from being
kicked and assaulted
by the police officers.
Analysis of his
evidence
[96]
Dr. Khan’s testimony was clear and
coherent and was not shaken by the cross-examination.
The
first defendant’s witness
: Beauty
Suzan Van Rooyen
[97]
In June 2020, she was employed at De Deur
Police Station as a Captain. Her duties included serving as an
operational commander of
O kae molao,
overseeing crime-prevention operations, and issuing directions.
[98]
On 8 June 2020, she was working at the
Client Service Centre (CSC) when a gentleman called Clinton came to
lodge a complaint about
people invading their properties. In
addressing the complaint, she drove to the plots in Elandsfontein
with the sector commander,
Mr. Mayile.
[99]
On their arrival, she noticed a shack, at a
corner, labelled: “Office”. Clinton told them that a
certain gentleman,
Tshepo, was selling the land to the invaders. She
advised him that a court order was necessary for the police to evict
the invaders.
[100]
Clinton called her repeatedly with the
complaint. She decided to visit the place again and found people
building half-shacks and
fences. She asked why they were there, and
they told her Tshepo had sold them the land. She advised them to
obtain a court order
or a title deed to see who the real owners were.
[101]
One weekend, the landowners dug a ditch
between the bridge and the plots to prevent the invaders from
crossing into the plots, but
that very Sunday, the ditch was closed.
She said the police went to the place several times.
[102]
On 24 June 2020, six landowners, assisted
by the MMC Motsamai, obtained a court order. Accompanied by the
sector commander and the
MMC, she assisted the Sheriff in serving the
court order. First, the Sheriff served it to the two people found
inside the corner
shack, “Office”. Second, they went to
plots 138, 139 and 154, where people were busy erecting shacks, and
gathered
them to explain the contents of the court order.
[103]
Whilst the Sheriff was busy
explaining the court order, in English, seTswana, seSotho, and
isiZulu, and handing copies to them,
Tshepo Zwane arrived. He told
the invaders not to panic because they had title deeds for that land,
and some tore up the court
orders.
[104]
After serving the court order, she returned
to De Deur Police Station and drafted an operational plan, as she
realized the invaders
would not respect it. The operation called
O
kae molao
was to be put into effect the
following day. She reached out to other police stations for
assistance.
[105]
The following day, she met the Police, red
ants (invited by the sheriff), Afri-guard, SANDF, and JMPD, and
paraded at Chris Hannie
Stadium in Orange Farm. The country was
on COVID-19 alert level three (3).
[106]
During the parade, she briefed the members
on the court order and instructed them to arrest anyone who violated
it. She told them
that dockets of trespassing were still being
processed. Led by the SANDF, they headed to Elandsfontein plots 138,
139, 163, 158, 142,
and 156. There, they arrested 24 invaders
who were installing shacks.
[107]
After the red ants had demolished the
structures, she said they drove to De Deur Police Station. She denied
arresting passers-by.
[108]
Referring to the occurrence book (OB), she
said an injured person would be booked out to the hospital. They took
their names down
and read them their rights
[109]
She was asked about the four whose names
were not in SAP10. She mentioned that she never arrested the four
plaintiffs.
Cross-examination
[110]
She was cross-examined at length, but not
about the four plaintiffs. She was asked about the return of service
and whether the contempt
of court and trespassing were part of
schedule one. She said the Sheriff knows about the return of service,
and the two charges
were not part of schedule one.
[111]
She never gave the police officer copies of
the court order. The entire place was not fenced. She did not go
inside the shack by
the plots.
[112]
She conceded that they could have arrested
people who were not mentioned in the court order.
[113]
She stated that she did not possess a red
wig and only had blond and black wigs.
[114]
She denied knowledge of any assault.
[115]
She confirmed that no noticeboard was
erected on the plots.
[116]
She stated that there were six cells and
that the detainees were placed in different cells; however, she
acknowledged that she was
not a cell commander and did not see them
placed. And she conceded that she did not know about the cell
arrangements.
[117]
She noticed there were 31 people in the
cells and said they were cleaned regularly. She drew a rough sketch
of the cell, and the
toilet was in the corner.
[118]
She estimated the largest cell to be 7 by 4
feet.
[119]
She rejected the idea that people were made
to sit and lie down while waiting for police vehicles. She reiterated
that every law
enforcement officer was there.
Analysis of her
testimony
[120]
She insisted that the four plaintiffs were
not arrested. Her testimony was not challenged, as she was never
cross-examined on the
four plaintiffs. She was challenged regarding
the seventeen, which led to the settlement. I have no reason to
reject her uncontested
version regarding the four plaintiffs.
Nthabiseng Moleko
[121]
On 25 June 2020, she was on duty conducting
operations
O kae molao
.
At a parade, she was amongst those briefed by Captain van Rooyen
about a court order. They were expected to assist the sheriff
and
given instructions to arrest anyone who disobeyed it.
[122]
They proceeded to the plot in a convoy.
Upon arrival, she saw people erecting poles, and others were adamant
that they owned the
land. She went to one adult male and had him
arrested. She told him he was arrested for trespassing and that his
name was Aubrey
Machanyela.
[123]
As a female police officer, she asked her
male colleague to arrest Aubrey. In explanation, she informed the
arrestee that he had
been arrested for trespassing and asked a male
colleague to search him and place him in the police vehicle.
[124]
Minutes later, she arrested Felix, who was
busy cleaning a plot. She told him he had been arrested for contempt
of court and trespassing.
He was adamant that he had bought the
place.
[125]
The suspects were transported to De Deur
Police Station. She testified that she did not witness any assault,
and it was impossible
for a police officer to detain someone with
injuries.
Cross examination
[126]
She confirmed that she never saw the court
order. She asserted that if a crime was committed in her presence,
she would effect an
arrest. She observed one plot, 154, marked with a
number and a sign that read: “Private property, do not enter.”
However,
she did not arrest anyone there.
[127]
She conceded that an arrest outside the
ambit of the court order would be unlawful.
[128]
It was put to her that she did not know the
plot numbers nor where they were located. In answer, she stated that
SANDF had cordoned
off the area. She insisted that Aubrey was not a
passer-by. She testified that she did not observe any noticeboards on
the plots.
Analysis of her
evidence.
[129]
Like her counterpart, she was not
challenged on the four plaintiffs.
The law
[130]
Arrest is elucidated in s 39 of the
Criminal Procedure Act 51 of 1977 (CPA) as follows:
“
39
Manner and effect of arrest
(1)
An arrest shall be effected with or without a warrant and, unless the
person to be arrested submits
to custody, by actually touching his
body or, if the circumstances so require, by forcibly confining his
body.
(2)
The person effecting an arrest shall, at the time of effecting the
arrest or immediately after effecting
the arrest, inform 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.
(3)
The effect of an arrest shall be that the person arrested shall be in
lawful custody and that he shall
be detained in custody until he is
lawfully discharged or released from custody.”
[131]
In
casu,
the
court is confronted with mutually destructive versions. On the one
hand, the four plaintiffs alleged that they were arrested
along with
the seventeen others. On the other hand, the defendant denies that
the four plaintiffs were arrested.
[132]
In
resolving
two
irreconcilable versions
,
the court
in
Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et
Cie and Others
,
[2]
held
that:
“
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 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 extracurial 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.”
[3]
Discussion
[133]
The conspectus of evidence shows that the
four plaintiffs lied to the police in various ways, including
providing incorrect signatures,
addresses, names, and surnames.
Further, there were numerous discrepancies between their evidence and
the statements they made
to their lawyers. Notably, Tshepo Ngobeni
testified that all the detainees witnessed the assault on Masoka and
were shouting at
the police to stop assaulting him. Yet not one of
the four plaintiffs mentioned the assault. Naturally, anyone in the
cell would
have mentioned such a traumatic incident. Given the
abundance of challenges in the four plaintiffs' respective cases, it
cannot
be said that they have discharged the onus of proving, on the
balance of probabilities, that they were indeed arrested. The
overwhelming
probabilities are that they were never arrested and
detained with the other 17 plaintiffs. The four plaintiffs are the
authors
of their own misfortunes by being mendacious. Consequently,
their claims must be dismissed.
[134]
Regarding Masoka’s saga, there is a
groundswell of evidence that indicates that he was assaulted by the
police at the police
station. His account was corroborated by Dr.
Khan in material respects. Tshepo’s testimony bolstered his
evidence. Even the
contradictions noted by counsel for the defendant
reinforced the conclusion that he was assaulted. It is of no moment
that Tshepo
said he sustained a bruise while he testified that he
sustained a swelling under his left eye. A courtroom is not an
English-spelling-test
classroom. It is a place where wheat is
separated from the chaff, using brains, not English. IsiZulu can do
just as well. In short,
these contradictions highlighted by the
defendant are not material, nor do they affect the probative value of
his testimony.
[135]
Dr.
Mohammed Moosa Khan’s testimony was untested and corroborated
Masoka’s. On the balance of probabilities, Masoka
was assaulted
and deserves compensation for the assault. The defendant’s
reliance
on
Minister of Safety and Security v Slabbert
[4]
is fallacious, especially if regard is had to para 12, which reads:
“
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 the
trial”.
In
South British
Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd
, this court
said:
“
However,
the absence of such an averment in the pleadings would not
necessarily be fatal if the point was fully canvassed in evidence.
This means fully canvassed by both sides in the sense that the Court
was expected to pronounce upon it as an issue”.
[136]
Masoka’s assault was canvassed at
great length by both parties. It would be bizarre for the court not
to make a ruling. Masoka
suffered huge humiliation in front of
his friends and strangers when he wet himself. He sustained injuries
to his shin and left
eye.
[137]
Assault
is recognized in the law of delict as
actio
iniuriarum
.
It is defined as an infringement of the right to bodily integrity
(physical and psychological). In
Minister
of Justice v Hofmeyer
[5]
the court stated:
“
One
of an individual’s absolute rights of personality is his right
to bodily integrity. The interest concerned is sometimes
described as
being one in corpus, but it has several facets. It embraces not
merely the right of protection against direct or indirect
physical
aggression or the right against false imprisonment. It comprehends
also a mental element.”
[138]
Having
accepted that Masoka suffered the indignity of assault at the hands
of the police officers, the court is alive to what was
said in the
matter of
Safety
& Security v Seymour
[6]
,
endorsing what was said in
Protea
Assurance Co Ltd v Lamb
[7]
,
namely:
“
It
is settled law that the trial judge has a large discretion to award
what he in the circumstances considers to be a fair and adequate
compensation to the injured party for these sequalae of his injuries
...”
[8]
[139]
The defendant referred the court to a
number of case dealing with damages in assault cases. These are:
·
In
EL
v Minister of Police and Another
[9]
the awarded R80 000.00 for assault by police officers which
resulted in a fractured 9
th
rib and hip injury.
·
Gcumisa
and Others v Minister of Police
[10]
the
court awarded R25 000.00 for assault.
·
Jombile
v Minister of Police
[11]
the
court found that the plaintiff did not present any evidence that
physical injuries sustained were of permanent nature, the court
awarded an amount of R50 000.00.
[140]
In my opinion, a sum of R50 000.00 is
an appropriate compensation for the unlawful assault on Masoka by the
police.
[141]
All that remains is the question of costs.
It is trite that the costs follow the results, and there is no reason
to stray from that
well-trodden path. In the result, I make the
following order.
Order
(a) The four
plaintiffs’ claims are dismissed; and
(b) The four
plaintiffs are ordered to pay costs jointly and severally, the one
paying the other to be absolved, on a party
and party scale B.
(c) The defendant
is ordered to pay R50 000.00 to Masoka in respect of the
unlawful assault by the police and costs
on scale B.
(d) By agreement
between the defendant and the seventeen plaintiffs, the defendant is
ordered to pay R100 000.00 to
the seventeen plaintiffs,
including Masoka,
(e) The defendant
shall pay interest at the rate of 7% per annum calculated from the
date of the summons to the date of payment.
Dated at Johannesburg on
this 13
th
day of February 2026
M. P. MOTHA
JUDGE OF THE HIGH
COURT,
JOHANNESBURG
Date
of hearing:
Date
of judgment:
17,18,19,20
and 21 November 2025, and
03
December 2025
13
February 2026
APPEARANCES:
For the Plaintiffs:
instructed by
:
For the Defendant:
instructed by:
Adv
R. Mthembu
Attorneys
MN Mnkansi Incorporated
Adv
O.
Legae
State
Attorney
[1]
Pillay
v Krishna
1964 AD 946
at 952.
[2]
[2002]
ZASCA 98
;
2003 (1) SA 11
(SCA) (6 September 2002
[3]
Supra
para 5.
[4]
(668/2009)
[2009] ZASCA 163
;
[2010] 2 All SA 474
(SCA) (30 November 2009)
[5]
[1993]
ZASCA 40
;
1993 (3) SA 131
(A) at 145H-I.
[6]
2006
(6)
SA 320
(SCA)
[7]
1971(1) SA 530
[8]
Seymour para 11
[9]
2025 ZAGPJHC 148
[10]
[
2020]
JOL 48615 (KZP)
[11]
[2
024]
JDR 1126 (GP)