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IN THE HIGH COURT OF SOUTH AFRICA, MPUMALANGA DIVISION,
(MBOMBELA MAIN SEAT)
Case No.: 1166/2021
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED YES/NO
DATE 20 February 2026
SIGNATURE
In the matter between:
NOAH MATHEBULA NKAVDZI PLAINTIFF
And
MINISTER OF POLICE 1ST DEFENDANT
NATIONAL DIRECTOR OF PROSECUTION 2ND DEFENDANT
____________________________________________________________
JUDGMENT
NGWENYA AJ
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INTRODUCTION
[1] The Plaintiff is suing the Minister of Police and the NDPP. His claim consists of
the following:
[1.1] Unlawful arrest and detention. In this regard, he’s claiming
R700 000.00 for unlawful arrest and detention; emotional shock and
psychological stress R200 000.00; and future medical expenses
R100 000.00.
[1.2] Malicious prosecution. In this regard, he is claiming R300 000.00.
[1.3] Loss of earning s. In this regard, he is claiming R100 000.00 for past
loss of earnings and R2 000 000.00 for future loss of earnings.
[2] At the beginning of the trial, Counsel for the Plaintiff abandoned the malicious
prosecution claim.
[3] Only the Plaintiff testified in support of his claim. The Minister and the NDPP did
not call any witnesses.
Plaintiff’s testimony
[4] The Plaintiff testified that he received a call from the Police (“SAPS”) to come to
the Thulamahashe Police Station on the 20th of March 2020.
[5] The SAPS officer who called him was Ms Mathebula. The latter informed him of
a criminal case against him , but was never provided with the particulars of the
case.
[6] When he reached the Police station, he was informed that there was a complaint
against him for a case of rape. Soon thereafter , the SAPS charged him and
informed him that the complainants were R[...] N[...] and I[...] N[...].
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[7] He testified that he did not know the complainants.
[8] After he was charged , he was taken to the Calcutta Police Station because the
police cells in Thulamahashe were full.
[9] On the 24 th of March 2020 , he made his first appearance in Court. The matter
was postponed to the 30 th of March 2020 , and he was taken back to Calcutta
Police Station.
[10] On the 30 th of March 2020, he was transferred to the Nelspruit Correctional
Services Centre.
[11] He further testified that, prior to the arrest, he was employed as a driver, earning
R5000.00 per month. His duties were to drive kids to school.
[12] As a result of the arrest and detention , he lost his job because his employer
hired a new driver.
[13] He sought employment, but the pending case was an impediment. He went to
the SAPS on multiple occasions to have the record cleared. The record was
eventually removed around early 2025.
[14] He testified that the arrest adversely affected him by causing him to lose his
employment and by eroding community trust in him. His health was also
affected because the cells were not in good condition. He was never taken for
counselling.
[15] He was cross-examined, but nothing really turned on the cross -examination. All
that was put to him was that the SAPS has the right to arrest on the basis of the
charges reported. He was further asked whether he had previously encountered
the arresting officer and whether there was any animosity between them . I
suspect this was intended to suggest why the police would arrest him without
cause.
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[16] In Minister of Safety and Security v Sekhoto and Another 2011 (5) S A 367 SCA,
at paragraphs 28 and 29, the SCA stated that:
“[28] Once the jurisdictional facts for an arrest, whether in terms of any
paragraph of s 40(1) or in terms of s 43 , are present, a discretion arises . The
question whether there are any constraints on the exercise of discretionary
powers is essentially a matter of construction of the empowering statute in a
manner that is consistent with the Constitution. In other words, once the required
jurisdictional facts are present the discretion whether or not to arrest arises. The
officer, it should be emphasised, is not obliged to effect an arrest . This was
made clear by this court in relation to s 43 in Groenewald v Minister of Justice.
[29] As far as s 40(1)(b) is concerned, H J O van Heerden JA said the following
in Duncan (at 818H-J):
‘If the jurisdictional requirements are satisfied, the peace officer may invoke the
power conferred by the subsection, ie, he may arrest the suspect. In other
words, he then has a discretion as to whether or not to exercise that power (cf
Holgate-Mohammed v Duke [1984] 1 All E R 1054 (HL) at 1057). No doubt the
discretion must be properly exercised. But the grounds on which the exercise of
such a discretion can be questioned are narrowly circumscribed. Whether every
improper application of a discretion conferred by the subsection will render an
arrest unlawful, need not be considered because it does not arise in this case.’
[17] From the above, it is trite that an officer is not oblige d to arrest merely because
the jurisdictional facts of section 40(1) of the Criminal Procedure Act hav e been
established. In addition, the officer must exercise discretion as to whether to
effect the arrest.
[18] In this case, the Minister of Police has not called the officer who effected the
arrest to explain the factors considered in effecting the arrest.
arrest to explain the factors considered in effecting the arrest.
[19] Given that the Plaintiff was released without prosecution, it follows that the arrest
was unwarranted and therefore unlawful.
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Quantum on arrest and detention
[20] In Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA) at paragraphs
26 and 27, where it was held that:
“[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 s ome 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 personal liberty and the
seriousness with which any arbitrary deprivation of personal liberty is viewed
in our law. I readily concede that it is impossible to determine an award
of damages for this kind of injuria with any kind of mathematical
accuracy. Although 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).
[27] Having given careful consideration to all relevant facts, including the age
of the respondent, the circumstances of his arrest, its nature and short
duration, his social and professional standing, the fact that he was arrested for
an improper motive and awards made in comparable cases, I am of the view
that a fair and appropriate award of damages for the respondent’s unlawful
arrest and detention is an amount of R15 000.”
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[21] The Plaintiff seeks R30 000.00 for each day he was in custody. I find that this is
a fair amount , considering the latest case of Amaojuyi v Minister of Police
(536/2023) [2025] ZANWHC 77 (2025), in which the North West High Court ,
Mahikeng, awarded R150 000.00 for 5 days in custody.
Quantum on loss of earnings
[22] It is correct that the arrest caused the Plaintiff to lose his employment; however, I
question whether, during the COVID -19 pandemic, when there was a hard
lockdown between March and the end of 2020, the Plaintiff was truly employed
at that time. The Defendant did not raise this point or challenge the Plaintiff’s
assertion that he was employed during that time.
[23] I have studied the reports from the Industrial Psychologist and the Actuary. The
Industrial Psychologist states that the Plaintiff's earnings were at the midpoint
between the lower quartile and the median of skilled workers. On the other
hand, the Actuary says that the Plaintiff was in the upper quartile for semi-skilled
workers. I prefer the findings of the Industrial Psychologist to those of the
actuary. In any event, the findings of the Actuary must be premised on the
report of the Industrial Psychologist.
[24] I do not agree that the Plaintiff suffered future loss of income , as the arrest did
not affect his ability to work or obtain future employment. All that the arrest did
was to interrupt his employment ; therefore, I find that he suffered only the past
loss of income.
[25] His prior loss of income is the 2-year period during which he was not employed.
In that regard , I will award the amount claimed in the particulars of claim , i.e.
R100 000.00 for past loss of earnings.
[26] In the premises, I make the following order:
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1. The first Defendant is ordered to pay the Plaintiff the sum of R1 560 009.00,
together with interest for unlawful arrest and detention at the prescribed rate
from the date of summons..
2. The First Defendant is ordered to pay the Plaintiff the sum of R100 000.00
for past loss of income with interest at the prescribed rate form date of
summons;
3. The First Defendant is ordered to pay cost of experts;
4. The First Defendant is ordered to pay the costs of litigation on a party -to-
party basis on the High Court scale C.
____________________
NGWENYA AJ
JUDGE OF HIGH COURT, MPUMALANGA DIVISION,
MBOMBELA (MAIN SEAT)
Appearances:
Date of hearing: 18 June 2025
Date of judgment: 20 February 2026
Counsel for the Plaintiff: Adv MC Phathela
Instructed by: Matyeka Attorneys
513A Thulamahashe
Post Office Street
Tel : 063 943 4146
Email Address info@ramarumolpattorneys.co.za
Counsel for the Defendant: Adv SP Nkosi
Instructed by: State Attorney
52 Samora Machel Drive
R104 West Acres
Administration Building
8
3rd floor
Mbombela High Court, Mbombela
Tel : 013 101 3722
Email Address TMasete@justice.gov.za