IN THE HIGH COURT OF SOUTH AFRICA,
MPUMALAGA DIVISION, MBOMBELA (MAIN SEAT)
CASE NO: 483/20
(1) REPORTABLE: YES@
(2) OF INTEREST TO OTHER JUDGES: YES/NO
~ ~l ~ [EVISED: YES/N
DATE SI
In the matter between:
NKOSI SELLO NKOSINATHI PLAINTIFF
and
MINISTER OF POLICE DEFENDANT
JUDGMENT
NsibandeAJ
Introduction
[1] This is a delictual claim of unlawful arrest and unlawful detention. The Plaintiff
was arrested by members of the South African Police Service ("SAPS") 06 October
2017 and was released 07 December 2017.
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Facts
[2] On 06 October 2017, the Plaintiff was arrested by members of the SAPS on
charges of rape and housebreaking. The rape and house breaking occurred on the
04th October 2017.
[3] The Plaintiff was pointed out by the victim and complainant in this matter on
charges for rape and housebreaking.
Issue for determination
(i) The Court is called upon to make a determination, firstly as to
which version of events is probable on a balance of
probabilities between the version of the Defendant and that of
the Plaintiff after the arrest.
(ii) The Court is also called upon to make a determination of
whether or not the arrest and detention of the Plaintiff was
lawful or unlawful.
[4] Should it be found that the arrest and detention were unlawful, the Court is
called upon to determine just and equitable redress.
Defendant's case
It is common cause to prove on a balance of probabilities that the arrest and the
subsequent detention were lawful. In proving its case the Defendant called on a
witness, Detective France Sando, who testified as follows:
6.1 That , he is a Sergeant member of the SAPS, and he attached to the FSC Unit,
Family Violence Child Protection and Sexual offences Unit.
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[8] He has been with the SAPS for 18 years and has been with the above unit for
a period of 8 years.
[9] He confirmed that he is the arresting officer in CAS No. 31/10/2017, for which
the Plaintiff was arrested .
[1 OJ He testified that he received the CAS docket from the charge office for
investigation. He stated that in his investigations, he visited the crime scene.
[11] According to the officer, in this matter, there were two complainants and two
perpetrators, and one of the perpetrators is a brother to both of the victims.
[12] He was informed by the victims that on the morning of 05 October 2017, the
first victim was asleep and was awakened by a light shone on her face, she shouted
and the second victim, younger than the first victim, awoke .
[13] The perpetrator ordered the younger victim to cover herself with a blanket.
[14] While covering her face, the younger victim heard the older victim calling out
the name of her brother.
[15] The first perpetrator insisted the younger victim open her legs and he
raped her. The second perpetrator held a knife, the other perpetrator was at
the door, allowing light into the room the victims shared.
[16] After the rape, both perpetrators exited through the garage door, taking
a mobile phone from the bedroom and a TV set from the dining room.
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[17] Upon further investigation it was discovered that one of the
perpetrators was staying next door to the victims, and was later not found at
his house.
[18] The officers went to the second perpetrator's house, the perpetrator
saw the officers, and he fled. The officers gave chase, apprehended, and
arrested
him, who is before this Court as the Plaintiff.
[18] The Plaintiff was arrested and charged with rape, housebreaking, and
theft. He was detained at Calcutta on 07October 2017 and he appeared in
Court, on a Monday.
[19] According to the officer, the Plaintiff was remanded in custody until
16th October 2017 for bail proceedings. That is the last time the officer had
any contact with the Plaintiff.
[20] He testified that, according to his recollection of events, the Plaintiff
was granted bail on that same day 16 October 2017. He further confirmed
that in December 2017 the charges against the Plaintiff were provisionally
withdrawn pending, at that stage, the release of the outcome of the testing for
DNA evidence.
[21] He submitted that, therefore, the arrest was lawful as the Plaintiff was
pointed out by the victim; whereafter the Court ordered his detention ..
Plaintiffs ' Case
[22] The Plaintiff testified that he was arrested on 06 October 2017 and
was detained at Calcutta Police Station and later transferred to Hazyview. He
was told that he was being arrested and detained for rape and housebreaking.
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[23] He testified that on the day of the arrest, at about 1 0h00 he was talking
to his neighbour. The police arrived and ordered him to stand still, whereafter
he lay on the ground and as he laid on the ground he was handcuffed.
[24] After the arrest, he was taken to his house and upon arrival , the house
was searched and he was informed by the police that they were looking for a
stolen TV and a blue hoodie which the Plaintiff had worn on the day of the
incident.
[25] The Plaintiff told the police that he did not own any blue hoodie but that
he had an Adidas braded hoodie. He testified that he was assaulted and that
none of the items sought were found in his house.
[26] Subsequenlty, he got to the police station, on Friday 06 October 2017,
was charged Sunday, 08 October 2017, and appeared in Court .on
Monday16th October 2017. He testified that from the date of his arrest on 06
October 2017 until 161h October 2017, he never left the cell in which he was
detained .
[27] On 16 October 2017 he was remanded in custody for further
investigations . He testified that he remained in the police cell and was later
transferred to Mbombela.
[28] He testified that the toilets at the police cells were dirty and smelling.
The blankets were dirty and smelly too.
[29] He further testified that he is not Marks, and he has no such nickname,
and he does not know who is Marks.
[30] He was finally released from custody on 07 December 2017 when the
charges were withdrawn.
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Analysis
[31] It is common cause; that the Plaintiff was arrested on the 06 October
2017 on the charges of Rape, Housebreaking, and Theft.
[32] It is common cause; that the Plaintiff was arrested after he was pointed
out by one of the victims.
[33] The following disputes are glaring from the Plaintiff's and Defendant's
versions:
(a) The date of first appearance in Court, and
(b) The date of release from custody.
[34] Before the Court can deal with the issue of whether the arrest and
detention were lawful or otherwise, it is important to deal with the two
aforementioned issues ..
The Date of First Appearance.
[35] Detective France Sando's evidence is that the Plaintiff appeared in
Court on the Monday after the Friday of the arrest, and the matter was
remanded to 16th October 2017 for bail proceedings.
[36] The Plaintiff's evidence is that he was arrested on 6th October 2017
and only appeared in Court on 16th October 2017, where he was further
detained for further investigation.
[36] On the day of the release from custody, the Detective's evidence was that, the
Plaintiff was released on bail, as he did not oppose bail, on the other hand the
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Plaintiff's evidence is that from 06th October 2017, he never left his cell until 16th
October 2017.
[37] In October 2017 he was further remanded into custody until he was
finally released on 07th December 2017.
[38] Clearly these two versions collide, and conflict with each other. No
further and better evidence was provided to the Court.
[39] It is however clear to this Court that the version of Detective Sando, in
so far as the first appearance is concerned, is the correct one. As this Court
finds that the Plaintiff could not explain, on his version of events, why he
appeared before Court on 16th October 2017. Whereas conversely the officer
was able to explain that on 09th October 2017, which would be the Monday,
the matter was remanded to 16th October 2017 for bail consideration.
[40] On 16th October 2017, both parties agree that the Plaintiff appeared in
Court. The Defendant's version is that the Plaintiff was granted bail on that
day as he did not oppose same. The Plaintiff, on the other hand, testified that
he was remanded in custody for further investigation.
[41] In the absence of any documentary proof by both parties it is very
difficult to make a finding in this regard.
[42] The Court is, however, satisfied that the charges against the Plaintiff
were provisionally withdrawn on 07th December 2017. The investigating
officer could not dispute the date of 07th December 2017 as the date on
which the charges were provisionally withdrawn.
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[43) The onus of proving the detention from 16th October 2017 to 07th
December 2017 rests on the Plaintiff and the Plaintiff has failed to discharge
such an onus. The Court is, therefore, satisfied that the Plaintiff was granted
bail on 16th October 2017 as testified by the investigating officer and there is
no documentary evidence, or otherwise, of further detention from 16th
October 2017 to 07th December 2017 except for the testimony of the Plaintiff.
[44] The Court will, therefore, only deal with the arrest and detention of the
Plaintiff from 06th October 2017 until 16th October 2017.
[45] The evidence before the Court states that the Plaintiff was arrested and
detained as a result of being pointed out by the complainant.
[46) The Plaintiff was detained at the police holding cells until the 09th
October 2017 where he made his first appearance, and the matter was
postponed to 16th October 2017.
The Applicable Legal Principles
[47] The arrest of the Plaintiff was without a warrant, and as a result it falls
squarely within an arrest in terms of Section 40(1)(b) of the Criminal
Procedure Act ("CPA") which states as follows:
"A peace officer may without a warrant arrest any person -
(a) "Who commits or attempts to commit any offence in his
presence;
(b) Whom he reasonably suspects of having committed an offence
referred to in Schedule 1, other than the offence of escaping
from lawful custody."
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[48J In Duncan v Minister of Law-and-Order 1986 (2) SA 805 (A), the Court
made the following remarks regarding the Section 40(1)(b) arrest:
"Once the jurisdictional requirements are met, a discretion arise as to
whether or not to arrest. The general requirements is that any such
discretion must be exercised in good faith, rationally and not arbitrary."
[49J The officer relied on the pointing out of the Plaintiff by the complainant.
The officer indicated that the complainant relied on the voice of the Plaintiff as
well as the evidence of the younger complainant to the effect that she heard
the other complainant calling the name of her brother in a darkroom. This
identification, as well as the fact that no other evidence pointed to the Plaintiff
as the perpetrator, is concerning insofar as the arrest and detention of the
Plaintiff is concerned.
[50] With the above-mentioned facts, the arrest of the Plaintiff, the
Defendant failed to exercise his discretion in good faith, rationally and not
arbitrarily. The officer should have made or conducted further investigations
regarding the identity of the perpetrator. The Court is of the view that the
pointing out of the Plaintiff by the victim was, under the circumstances, not
enough to warrant arrest. The officer should have made further investigations
before exercising the discretion whether or not to arrest. As the officer did not
make such further investigations to establish certain facts and adduce further
and particular evidence regarding the identity of the perpetrator, the decision
to arrest and detain had no rationality.
[51] The Court is therefore satisfied that the arrest of the Plaintiff under the
circumstances was unlawful. It follows, therefore, that the detention flowing
from such arrest is also unlawful.
Quantum
[52] The Defendant having not rebutted the allegations and submissions as
to unlawful arrest and detention, but also in terms of the conditions of the cells
and the Plaintiff's emotional trauma as a result of the arrest and detention, the
Court accepts that these are common cause.
[53] The Plaintiff was not supposed to be arrested under the circumstances,
while arrested he was entitled to be detained in conditions that are consistent
with human dignity1 . Section 35(2)(e) mandates that:
"Everyone who is detained, including every sentenced prisoner, has the right
(e) to conditions of detention that are consistent with human dignity,
including at least exercise and the provision, at state expense, of
adequate accommodation, nutrition, reading material and medical
treatment."
[54) Consequently, this Court makes the finding that the Plaintiff was clearly
detained in inhumane conditions, and the arrest and detention was unlawful.
The Plaintiff is claiming compensation for the unlawful arrest in the amount of
R 3 000 000.00 (Three Million Rands) and his Counsel referred the Court to a
number of authorities in support of the claim and the award.
[55) In arriving at a just and equitable award, the Court deems it to be
appropriate to be guided by the following decisions;
1 Section 10 read together with Section 35(2)(e), Constitution of the Republic of South Africa, Act 108 of 1996.
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[56] In Minister of Safety and Security v Tyulu, 2 Bosielo A.JA stated as
follows:
"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 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. "3
[57] It is also important to refer to the following: In Minister of Safety and Security v
Seymore4 Nugent JA, held:
"The assessment of awards of general damages with reference to
awards made in previous cases is fraught with difficulty. The facts of a
particular case need to be looked at as a whole and a few cases are
directly comparable. They are useful guide to what other courts have
considered to be appropriate but they have no higher value than that."
2 Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA) para 26.
3 See also.Rudolf and Others v The Minister of Safety and Security and Others (380/2008) {2009} ZASCA 39 ..
4 Minister of Safety and Security v Seymore (6) SA 320 (SCA) para 17.
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[58] In Pitt v Economic Insurance Co Ltd 1957 (8) SA 284 (N) 5 Holmes J
held:
" ... the Court has to do the best it can with the material available, even if, in
the result, its award might be described as an informed guess. I have only to
add that the Court must take care to see that its award is fair to both sides
it must give compensation to the Plaintiff, but must not pour out largesse
from the horn of plenty at the Defendant's expense."
[59] The Court has considered the above decisions and past awards by
Order
Courts as well as awards in this Division of the High Court. The Court is of the
view that an award for unlawful arrest and detention of the Plaintiff from the
06th October 2017 to the 16th October 2017 will be an amount of R
250 000.00 (Two Hundred and Fifty Thousand Rands).
[58] The Court therefore makes the following Order;
(i) The Defendant is ordered to pay the Plaintiff an amount of R
250 000.00 (Two Hundred and Fifty Thousand Rands) in
respect of the unlawful arrest and detention of the Plaintiff from
06th October 2017 to 16th October 2017.
(ii) The Defendant is ordered to pay the costs of the suit on party
and party scale, Scale B.
5 Pitt v Economic Insurance Co Ltd 1957 (8) SA 284 (N) para [E]. See also the following:Thandanani v The
Minister of Law and Order 1991 (1) SA 702 (E], Olgar v The Minister ofSafety and Security 2008 JDR1582.
Motladile v Minister of Police (Motladile 414/4/2022) [2023] ZASCA 94.
Appearances:
For the Applicant
Instructed by:
For the Respondent:
Instructed by:
Date of Hearing: 20th October 2025
Date of Jugement: 3rd March 2026
ACTING JUDGE OF THE HIGH
COURT
Counsel: Adv. L.H Makamu
Attorney 's Details: Bhila Attorney 's
5a Murray Street
Mbombela
EmailAddress : bhila@btattorneys.co .za
Counsel : Adv. Z.S Dlamini
Attorney 's Details: State Attorney 's
Office
Mbombela High
Court Building
Mbombela
Email Address:
ETPrinsloo@just ice.gov.za
MMsiza@justice.gov.za