IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between
TOKOJACOBJASON
and
THE MINISTER OF POLICE
Not reportable
Case no: 2142/2023
APPLICANT
RESPONDENT
Neutral citation: Jason v The Minister of Police (2142/2023) [2026] ZAFSHC 60
(17 February 2026)
Coram: GREYLING-COETZER J
Heard: 16, 17 and 19 September 2025
1
Delivered: Thisjudgmentwas handed down electronicallybycirculationtothe
parties' representatives by email and released to SAFLII. The date and time for hand
down is deemed to be 17 February 2026 at 10h00.
Summary: Unlawful arrest and detention - warrant of arrest - pleadings -
issues for trial - onus of proof - discretion to arrest - Criminal Procedure Act 51 of
1977-s 43.
2
ORDER
1 The claim is dismissed with costs.
JUDGMENT
GREYLING-COETZER AJ
[1] The plaintiffinstituted an action against the defendantfor unlawful arrest and
detention. He alleges that he suffered damages in the amount of R500 000.00. The
plaintiff's case is that he was wrongfully and unlawfully arrested without a warrant of
arrest and thereafter detained for approximately five hours in the court holding cells at
the Thaba Nchu Magistrate's Court. The defendant opposed the action and whilst
admitting the arrest, denied that said arrest was unlawful pleading that a warrant of
arrest was issued on 28 January 2001, directing and authorising the arrest. The plaintiff
did not file a replication to the defendant's plea. The parties thus adopted diametrically
opposed positions: the plaintiff alleged an unlawful warrantless arrest, and the
defendant contended that the arrest was lawfully effected in tenns of a warrant.
[2] By agreement between the parties, the plaintiff assumed the duty to begin. In
summation the plaintiff's evidence was that on 6 December 2019, and after a dispute
with his wife, he took the keys of their co-owned Mercedes-Benz motor vehicle and
proceeded to the Thaba Nchu Police Station. Whilstatthe police station, his wife also
arrived. The issue was discussed, and he left the Thaba Nchu Police Station with the
Mercedes-Benz vehicle. Approximately two hours later he_was stopped by the police
who advised him that a court order has been issued against him. In tenns of the court
order he was prohibited to go to his lodge named Legae La Khu mo, situated in Thaba
Nchu. He then proceeded to his house in Tweespruit.
[3] The following day on 7 December 2019, two police officers arrived at the said
home in Tweespruit. They indicated that they were there to arrest him, he asked for
the warrant, but they were unable to show him one. He was arrested and taken to the
Thaba Nchu Police Station and kept in the holding cells. According to the plaintiff a
certain detective explained to him that the matter related to a stolen Mercedes-Benz
vehicle. On the Monday morning, 9 December 2019, he appeared in court and was
granted bail. This arrest does not form the subject matter of the present claim.
3
[4] The plaintiff testified that this matter dragged on for a long period of time and
he appeared in court on several occasions. According to him, when he appeared in
court for his bail hearing, the only charge professed was that of domestic violence. He
testified that on one specific day after the court adjourned, he was advised to appear
in court again on a future date. He left for Kimberley where he was residing atthe time.
Whilst travelling he received a call from the prosecutor, Mr Mojapelo. According to the
plaintiff, the prosecutor advised him that he was supposed to be at court. The plaintiff
disputed this, indicating that the matter had been adjourned and that he was on his
way to Kimberley. He testified that the prosecutor then told him to carry on, but to
come on a specific day, to which the plaintiff agreed. The plaintiffwasunabletoprovide
any detail in respect of the specific days, nor was he able to provide the case number
underwhich he was charged as per his aforementioned evidence.
[5] The evidence revealed that the plaintiff was involved in two matters. The one
being for domestic violenceundercase number767/2019, per an application made by
the plaintiffs wife and order granted on 6 December 2019. The other pertaining to a
charge laid by the plaintiff's wife on the same date under CAS 28/12/2019 and
prosecuted under case number A593/2019. The plain tiff how ever testified th at he was
prosecuted under case number A593/2019. The plain tiff how ever testified th at he was
never charged with theft of a motor vehicle. Pertaining to the motor vehicle, he
confirmedthatthe Mercedes-Benz motor vehicle was taken in accordance with a court
order and registered in the SAP13 register underCAS 28/12/2019, which according
to him was for assault.
[6] The plaintiff confirmed that there was a further appearance on 10 July 2020
and that the matter was then postponed to 11 September 2020. The documentary
evidence revealed that there were two cases involving the plaintiff, remanded to 11
4
September 2020, one in the district court (A593/2019) and the other in the domestic
violence court (767/2019). He testified that he appeared in court on 11 September
2020, withoutindicatingwhich ofthetwo courts he appeared in. The plaintiff confirmed
that he left after the matter was postponed. He was again called by the prosecutor,
who informed him that he was supposed to be in court. The plaintiff indicated that he
had already left for Kimberley but that he could come back. The plaintiff testified that
the prosecutor then indicated that it was not necessary, and that he should be at the
next hearing date, which was on 27 November 2020. With reference to the plaintiffs
evidence bundle, the plaintiff was shown a warrant of arrest (J165) and confirmed that
on face value it appeared to have been issued on 28 August2020 and cancelled on
28 January 2021.
[7] The arrest founding the subject matter of the current claim took place on
17 March 2022. On the preceding day being 16 March 2022, the plaintiff was at the
Thaba Nchu Police Station when he was confronted by two SAPS members, ofwhidl
one was Constable Mogoera. The plaintiff testified that Constable Mogoera said to him
that he was a criminal and that she was going to arrest him. The plaintiff responded to
her, saying 'show me your warrant', which she did not do, but told him to report to
Selosesha Court, being the Thaba Nchu Magistrates Court, the following day on
17 March 2022, to which the plaintiff agreed.
[8] At this time, he was still residing in Kimberley. On 17 March 2022, he
telephonically engaged Constable Mogoera who told him to meet her at the police
station. He refused, indicating that the arrangement was that they would meet at court.
He proceeded to the Thaba Nchu Magistrates Court. At about 08h30 Constable
Mogoera arrived and he was taken to an office in the building where he was told that
he was under arrest. He again asked for the warrant but was not shown a warrant.
he was under arrest. He again asked for the warrant but was not shown a warrant.
According to the plaintiff, he was told that he knows too much and thattheywere busy
with the paperwork as he had to appear in court. The plaintiff testified that he was
shackled and placed in a holding cell with 15 other people. The cell was, three metres
by three metres, inhumane and contained no benches, no roof nor any running water.
No one enquired whether he had any medical condition, his cell phone was not taken,
nor was he searched. He was able to call family members.
[9] He remained in the cell from approximately 08h30 until 14h00. He testified
that he started vomiting, whereafterthe court orderly came to see what was going on.
The court orderly opened the cell for him and escorted him to an office. There his
shackles were removed and the court orderly told him that he was free to go and that
there was no court appearance on that day. He testified that the experience was
painful and caused him an enormous amount of stress. He believed the charges were
trumped up, explaining that'the same officer will come and seek things from me and
now because I have integrity it became a witch hunt'. The plaintiff testified that since
the event, he has been seen as a wife-beater and a thief by the larger community. He
testified that he is a known person in the community, as he owned the lodge where
various of the South African Police Service functions takes place.
5
[1 O] The plaintiff was.then asked to comment on the validity of a warrant of arrest
dated 28 January2021 (J50). The defendant's legal representative objected on the
basis that the plaintiff's case was clearly delineated in the pleadings to be that no
warrant existed, and no challenge has been levelled against the validity of the J50
warrant. The objection was sustained on the basis of relevance. During cross
examination the plaintiff was confronted with the various entries contained in the
investigation diary, as well as the court notes which demonstrate-the· two matters
brought against him and his failure to appear in court. The plaintiff denied the entries,
insisting thatthe investigation diary relates to a police matter and that he was dealing
with what he termed to be 'a court matter' and not a police matter. On a question
whether, having regard to the entries, he was at court on the specific dates indicated,
the plaintiff indicated that he would have to check, as he was unsure, considering that
th ere were so many court appearances.
th ere were so many court appearances.
[11] With reference to the plaintiff's evidence bundle, the plaintiff confirmed that an
inscription appeared on the charge sheet under case number A593/2019, indicating
that a J50 was issued. Confronted with the court notes reveal that on 28 August2020
the plaintiff was not present and a warrant was authorised for his failure to appear, on
11 September 2022 the plaintiff again failed to appear. The same position is reflected
per the notes of 27 November 2020 and on 11 December 2020 with the direction that
the issued warrant to remain in circulation, the plaintiff denied that he was not present
and indicated that per the court note of 11 September 2020 it stated that he was not
present at 13h20 which is lunch time. Confronted with the defendant's version that the
various entries resulted in the J165, and later the J50, the plaintiff denied same.
Confronted with the defendant's version that he was provided with a warrant and his
constitutional rights on the date of the relevant arrest, the plaintiff denied same, albeit
that the plaintiff admitted his signature on the constitutional rights notice .
6
[12] The defendant call Sergeant Mogoera. She testified that she has 13 years'
service in the SAPS and works as a detective. She confirmed that she arrested the
plaintiff on 17 March 2022 on the strength of a J50 warrant dated 28 January 2021.
She testified that she took over the matter from a colleague and that on considering
the docket content, it appeared thatthe matter was already in court, butthatthe plaintiff
failed to appear in court, whereafter a J165 was issued by the magistrate on
28 August2020 and under case number A593/2019. She explained that the J165
lapsed, resulting in the application for the J50 warrant, which was made on
27 January 2021 and issued by a magistrate on 28 January 2021.
[13] She testified that on 16 March 2022 and whilst at the Thaba Nchu Police
Station , she was advised by the former investigating officer , Sergeantlenkoe , that the
plaintiff was present in the police station . She approached the plaintiff and indicated
that there was an arrest warrant out for him due to him failing to appear in court.
According to Sergeant Mogoera, the plaintiff indicated that his mother had died
recently and that he was busy with funeral arrangements, hence his presence at the
police station to certify funeral documents . She testified that the plaintiff was very
emotional and even started crying , pleading with her to afford him time before the
warrant is executed. They agreed that he will be allowed to attend to the funeral
arrangements and agreed that he will contact Sergeant Mogoera on finalising the
funeral arrangements .
funeral arrangements .
[14] On 17 March 2022, theplaintiffc alledSergeantMogoera andsaidthathewas
at the Thaba Nchu Courtbuilding.Shetook the docket containingtheJ50 warrant , and
the constitutional rights book and proceeded to meet the plaintiff . They utilised the
courtorder ly's office where she showed the plaintiff the J50 warrant and read his rights
to him, whereaf.ter the plaintiff signed the notice of rights document at '09h00.
Sergeant Mogoera left the plaintiff with the court orderly, as according to her, she had
executed the JSO warrantwhich was because of his failure to appear in court. He was
now present at court and in the custody of the court orderlies.
[15] Sergeant Mogoera denied the plaintiff's version of events pertaining to the
failure to show him the warrant as well as being shackled and placed in the holding
cells. She further denied the plaintiff's version pertaining to the conditions of the
holding cells , stating that when she left him, he was seated on a chair in the court
orderly's office. She generally remarked when the cells are dysfunctional, such as
when there is no water, no one is placed in those holding cells. Sergeant Mogoera
testified that as the basis for the JSO was the failure to appear in court, her duty was
to ensure that the plaintiff attends court, which she complied with when she executed
the J50 at the Thaba Nchu Court and left him in the court orderly's office . The only
purpose for the arrest was to execute the JSO and to bring him before court.
7
[16] SergeantMogoera further testified that after leaving the plaintiff with the court
orderly, she took the docket and handed it to the prosecutor. Confronted in cross
examination with why the plaintiff in such circumstances never appeared in court, she
indicated that that was a decision that was made by the prosecutor and that she had
no knowledge as to why the matter was not placed on the court roll, having provided
the prosecutor with the docket. The docket indicated that a decision was taken not to
prosecute due to the absence of prospect of success.
[17] The plaintiff's legal representative then soughtto introduce the issue of validity
of the J50 warrant. The defendant's legal representative again objected thereto based
on relevance . Pursuantto an extensive debate regarding the entitlement of the plaintiff
to cross examine on such basis where it was not the pleaded case for the plaintiff and
the need for a replication alternatively an amendment as acceptable foundation for
the need for a replication alternatively an amendment as acceptable foundation for
such cross examination, cross examination on the validity was provisionally allowed
and the issue of the plaintiffs entitlement to place reliance on invalidity of the warrant
of arrest was reserved for argument.
[18] It appeared from the cross-examination thatthe pointwh ich the plaintiff's legal
representative intended to establish was that the warrant did not comply with s 43 of
the Procedure Act 51 of 1977 (CPA), in that the plaintiff's address is stated to be
Tweespruit which is outside the area of jurisdiction of the Thaba Nchu Court, the
application did not mention the magisterial district within which theoffencewasalleged
to have been committed and states suspect is known or suspected on reasonable
grounds to be within the district of Tweespruit. Further that, corrections were made to
the application for the warrant pursuant to its being granted by the magistrate.
SergeantMogoera denied any invalidity of the warrant.
[19] She confirmed that she fully understands her discretion in respect of arrest,
and that generally an officerhasa discretion to arrest highlightingthatin the present
instance she had a J50 warrant which she was tasked with to execute . She thus
exercised her discretion on the strength of the J50 warrant and only arrested the
plaintiff for the purpose of ensuring the attendance at court. Therefore, she arrested
him at court but denies that he was ever shackled or detained as per the plaintiff's
version . Sergeant Mogoera was the only witness for the defendant.
[20] Resultantfrom that which transpired during the trial, and undoubtedlythe most
contentious point , an appropriate starting point is the question whether the case
pleaded by the plaintiff entitled him to contend that the J50 warrant was invalid for
want of compliance withs 43 of the CPA.
[21] The plaintiff in his particular of claim alleges that on/or about 17 March 2022
and at Thaba Nchu in the Free State province, the plaintiff was wrongfully and
unlawfully arrested withouta warrant of arrest by a member of the SAPS who identified
herself as Detective Mogoera. In its plea the defendant admitted the arrest and
pleaded that the plaintiff was arrested pursuant to a warrant of arrest issued on 28
January 2021. Informed per the plea of the defendant's reliance on a warrant, the
plaintiff did not file a replication or seek to amend his particulars of claim prior to the
hearing norduring the hearing. It was argued on behalfofthe plaintiff that a replication
hearing norduring the hearing. It was argued on behalfofthe plaintiff that a replication
was not necessary as the effectof failing to file same was thatthe allegationsisdenied.
It was further contended that as the plaintiff pleaded the arrest was unlawful it matters
not that it was with or without a warrant and the court stands to assess such
unlawfulness without bounds.
8
[22] The defendant argued that the attempt to introduce a claim based on defects
in the warrant of arrest during t~e hearing in said circumstances was nothing but
litigation by ambush to the prejudice of the defendant. It was contended that the
defendant was called upon to answer a specific case and it is not open to the plaintiff
to attempt to establish a different case at trial, which case could not be gleaned from
the pleadings .
9
[23] The purpose of pleadings is to define the issues for the other party and the
court. A party has a duty to allege in the pleadings the material facts upon which it
intends to rely. It is impermissible for a plaintiff to plead a particular case and seek to
establish a different case at trial. 1 The Supreme Court of Appeal in Minister of Safety
and Security v Slabbert Minister of Safety and Security v Slabbert [2009] ZASCA 163;
[2010] 2 All SA 474 (SCA) para 11, held:
'It is equally not permissible for the trial court to have recourse to issues falling outside the
pleadings when deciding a case.'
[24) In Home Talk Developments (Pty) Ltd and Others v Ekurhuleni Metropolitan
Municipality [2017] ZASCA 77; [2017] 3 All SA 382 (SCA); 2018 (1) SA 391 (SCA) at
paragraph 28, it was restated when the court held as follows:
'One knows that such address can never be a substitute for pleadings. In any event, it did not
serve to forewarn the respondent of the evidence that would eventually be relied upon. What
is important is that the pleadings should make clear the general nature of the case of the
pleader. They are meant to mark out the parameters of the case sought to be advanced and
define the issues between the litigants. In that regard, it is a basic principle that a pleading
should be so framed as to enable the other party to fairly and reasonably know the case he or
she is called upon to meet. These requirements in respect of pleadings are the very essence
of the adversarial system. The prime function of a judge is to hear evidence in terms of the
of the adversarial system. The prime function of a judge is to hear evidence in terms of the
pleadings, to hear argument and to give his decision accordingly.'
[25] The Supreme Court of Appeal in National Director of Public Prosecutions v
Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1) SACR 361 (SCA); 2009 (4)
1 Moaki v Reckitt and Colman (Africa) Ltd and Another 1968 (3) SA 98 (A) at 102A; lmprefed (Ply) Ltd
v National Transport Commission 1993 (3) SA 94 (A) at 107O-E; Minister of Agriculture and Land Affairs
and Another v De Klerk and Others (2013] ZASCA 142; 2014 (1) SA 212 (SCA); [2014] 1 All SA 158
(SCA) para 39 and Gusha v Road Accident Fund (2011] ZASCA 242; 2012 (2) SA 371 (SCA) para 7.
BCLR 393 (SCA); [2009] 2 All SA 243 (SCA)held thatthejudicial function of a judicial
officer is to confine the judgment to the issues before the court, by deciding matters
that are germane or relevant by not creating new factual issues or by making gratuitous
findingsagainstpersonswhowere not called upon to defend themselves and by failing
to distinguish between allegation, fact and suspicion. The principle relied upon by the
Supreme Court of Appeal concluding as aforesaid is a foundational principle of the
South African legal system, thatjustice can only be achieved if the procedure leading
to a decision is fair.
[26] The current situation draws attention to the important interplay between the
substantive law and procedure to the fore. Substantive law defines the rights, duties,
and obligations of parties, while procedural law provides the framework through which
those rights are enforced or defended in court. The two operate in tandem : substantive
law establisheswhata party is entitled to, and procedure dictates how that entitlement
is pursued, ensuring order, fairness, and equality between litigants. While courts
interpret procedural rules to facilitate the effective vindication of substantive rights,
procedural requirements cannot be disregarded to the detriment of any party, as they
exist to protect due process and maintain the integrity of the judicial process . The
proper interchange lies in harmonising both, thus applying procedure to uphold
fairness and predictability, while ensuring that substantive rights are meaningful and
capable of being fully exercised.
[27] There are however circumstances in which a party may be allowed to rely on
an issue which was not covered by the pleadings. But same is only justified in
circumstances where the question has been appropriately andfullycanvassed by both
sides at trial. In South British Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd 1976
(1) SA 708 (A) at 714E-G, the court held that:
(1) SA 708 (A) at 714E-G, the court held that:
'On the foregoing analysis it is in my view clear that the plaintiff, by its claim that the defendant
failed to deliver at Matadi (and by its absence of replication) was denying that the cargo
reached Matadi or, if it did, that there was delivery to.Otraco as pleaded. If the plaintiff had
wished to rely on the point that, if the cargo reached Matadi, and was delivered to a Otraco, it
was, when taken out of the ship, so mixed with other goods that in law there was no delivery
to Otraco, the plaintiff should have replicated to this effect. It is a matter of confession and
avoidance. However, the absence of such an averment in the pleadings would not necessarily
10
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 ... '
[28] The circumstances are somewhat similar in the present matter where reliance
in respect of the invalidity came to the fore during cross-examination and resulted in
an objection by the defendant. The result was that the issue was not properly ventilated
during the trial. The defendant, in the absence of a replication, alternatively a timeous
amendment of the particulars of claim, was not called upon to answer the invalidity of
the warrant. It was led to believe that the plaintiffs case remained that no warrant was
utilised in executing the arrest. The plaintiff contended thattheallegation thatthe arrest
was unlawful issufficientto justify this Courtto scrutinise and make a finding pertaining
to the validity of the warrant of arrest. The defendant in contrast called upon the court.
to constrain itself to the issues per the pleadings and disregard the evidence which
went beyond the pleaded case on the basis that it is impermissible for the plaintiff to
plead one case and attempt to establish another during the trial.
[29] As already stated, the defendant's plea raised the issue of the existence of a
warrant as basis for the arrest. The parties exchanged their respective discovery
affidavits in 2024. The defendant's discovery affidavit specifically included the fu II case
docket of Thaba Nchu under CAS 28/12/2019. The parties further exchanged
evidence bundles prior to the hearing date. The existence of the JSO warrant was
within the plaintiffs knowledge and even discovered by the plaintiff himself. That said,
it is unclearwherethis copy originates from if regard is had to the plaintiff's evidence
that he was never shown or given a copy and the defendantwitness who testified to
the addition made after execution. The parties also engaged in a pre-trial early in 2025,
the addition made after execution. The parties also engaged in a pre-trial early in 2025,
from the minute nothing was raised aboutthe validity or lack thereof of the warrant to
forewarn the defendant of the intention of the plaintiff to raise a validity challenge.
[30] As alluded to above, it was only once the plaintiff was in the witness box that
the issue of invalidity of the warrant of arrest came to light and was on first mention
neutralised through an objection. Undeterred and without any evidence on the issue
being led by the plaintiff himself or cross examination on the issue, the focus was
shifted to introduce the validity challenge during cross examination of the defendant
witness. In litigation one of the most fundamental imperatives, as a necessary corollary
11
of fairness and the rule of law, is procedural order. The concept of fairness ins 34 of
the Constitution of the Republic of South Africa, 1996, lies at the heart of the rule of
law. Thus, rules of court oughtto be interpreted and applied in a way that would render
court proceeding fair.2 Section 34 entrenches the principles of natural justice. This
encompasses, at a minimum, the requirements of justice that parties be treated
equally before the courts, that the audi alteram partem principle be observed, and that
proper notice of the allegations be afforded.
[31] In Msimango v Minister of Police [2023] ZAECMHC 50 at para 58, the court in
respect of an invalid warrant of arrest for non -compliance withs 43(1 )(a) of the CPA
held that the question of the validity of a warrant is a matter of law and where it does
not comply with the section, it is invalid. I find myself in agreement provided that the
validity is an issue before the court, properly raised and fullycanvased by both parties.
That did not happen in the present matter. Moreover, for the question of validity to be
a matter of law, it should be confined to compliance withs 43 of the CPA and not be
based on factual considerations, such as in the present matter.
[32] An arrest or detention is prima facie wrongful . It is not necessary, therefore, to
allege or prove wrongfulness. It is for the defendantto allege and prove the lawfulness
of the ·arrest or detention. 3 It is trite that once the arrest and detention are admitted the
onus of proving lawfulness rests on the State as defendant. However, if the arrest took
place pursuant to a warrant, the onus of proving the wrongfulness of the arrest by
showing thatthewarrant was irregular rests on the plaint iff. 4
[33] For the reasons set out above I find that the issue of validity of the warrant of
arrest is not an issue before this Court for determination. Had the plaintiff taken the
opportunity when it presented itself before or even during the hearing by seeking a
opportunity when it presented itself before or even during the hearing by seeking a
postponement and an amendment of his particulars of claim alternatively to introduce
a replication, affording the defendant an opportunity to respond thereto, and for the
2 De Beer NO v North-Central Local Council and South-Central Local Council and Others [2001] ZACC
9; 2002 (1) SA 429 (CC); 2001 (110 BCLR 1109 (CC) para 11.
3 Lombo v Afric an National Congress [2002] 3 All SA 517 (SCA), 2002 (5) SA 668 (SCA) para 32.
4 Cresto Machines (Edms) Bpk v Die Afdeling Speur-Offisier, SA Polisie, Noord-Transvaal
1972 (1) SA 376 (A) 394G; Minister van Polisie v Goldschagg [1981] 3 All SA 321 (A), 1981 (1) SA 37
(A) at 40.
12
issue to be properly ventilated at trial, the position might have been different. This
matter will thus be adjudicated within the confines of the pleaded case between the
parties.
(34] It is common cause between the parties that the plaintiff had two pending
cases against him, that he was at Thaba Nchu police station on 16 March 2022 and
engaged Seargent Mogoera and told there is a warrant for his arrest. Furtherthat the
plaintiff called SargeantMogoera on 17 March 2022 and they met at the Thaba Ndlu
Court, where they proceeded to an office, where he was arrested. He never appeared
in court on that day.
(35] But for aforesaid there are two mutuallydestructivefactual accounts as to why
the plaintiff was at Thaba Nchu police station on 16 March 2022, whether he was
arrested with or without a warrant of arrest and that which ensued after he was
arrested. The approach to resolving two irreconcilable but mutually destructive factual
versions is well established. There is no reason to restate the law.5 It is equally true
that findings of credibility cannot be judged in isolation but are required to be
considered in light of the proven facts and the probabilities of the matter under
consideration. 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 the latter
will be. But when all factors are equipoised, probabilities prevail. It is against the
backdrop of these principles that an assessment of the evidence is undertaken.
(36] The initial enquiry is whether the arrest was effected with or without a warrant,
as this dictates whetherthe arresting officer was required to exercise a discretion to
arrest, or not. The evidence on behalf of the defendant together with the
contemporaneous evidence of the J50 warrant, established that the arrest took place
contemporaneous evidence of the J50 warrant, established that the arrest took place
on the strength of a warrant of arrest. The arrest was executed at the Thaba Ndlu
Court for the purpose of ensuring the plaintiff's presence at court. The subsequent
enquiry is whether Sergeant Mogoera enjoyed a discretion to arrest, which discretion,
if present, was required to be exercised before the plaintiff was arrested. It was argued
5 Stellenbosch Farmers' Winery Group Ltd and Another v Martel & Cie SA and Others (427/01) (2002]
ZASCA 98; 2003 (1) SA 11 (SCA) para 5.
13
on behalf of the plaintiff that even where a warrant of arrest has been obtained, this in
itself does not necessarily justify an arrest to secure the attendance of the plaintiff in
court.
[37] The question whether a police officer has a discretion when executing a
warrant not to arrest was the subject matter before the Constitutional Court in Groves
N.O. v Minister of Police [2023] ZACC 36; 2024 (1) SACR 286 (CC); 2024 (4) BCLR
503 (CC) . The apex court clarified the legal uncertaintyoccasioned by the dictum in
Minister of Safety and Security v Sekhoto and Another [2010] ZASCA 141; [2011] 2
All SA 157 (SCA). In Minister of Safety and Security v Sekhoto para 28, the Supreme
Court of Appeal found:
'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.'
[38] Considering the aforesaid finding for which reliance was placed on
Groenewald v Minister van Justisie 1973 (3) SA 877 (A) at 883G -884B, the
Constitutional Court in Groves N.O. v Minister of Police at para 51 held that the
statement was an obiter dictum and constitutes an error in law, as the court in
Groenewald v Minister van Justisie did not decide that a peace officermaking an arrest
on the strength of a warrant has a discretion , but dealt with the discretion of the
magistrate or peace officer authorising thewarrantof arrest. The Constitutional Court
in Groves N. 0. v Minister of Police at para 52 to 53 reasoned that:
in Groves N. 0. v Minister of Police at para 52 to 53 reasoned that:
'(52] A warrant of arrest issued by a peace officer is to be distinguished from a warrantless
arrest. The officer making a warrantless arrest has to comply with the jurisdictional
prerequisites set out in section 40(1) of the CPA. In other words, one or more of the grounds
listed in paragraphs (a) to (q) of that subsection must be satisfied. If those prerequisites are
satisfied, discretion whether or not to arrest arises. The officer has to collate facts and exercise
his discretion on those facts. The officer must be able to justify the exercising of his discretion
on those facts. The facts may include an investigation of the exculpatory explanation provided
by the accused person.
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[53] An authorised warrant has been subjected to a process that involves the participation of
other role players such as a commissioned police officer or a prosecutor (who applies for the
warrant) and the Magistrate or justice of peace (who considers the application and issues the
warrant). The point is that this process ensures that it is not only the decision of the arresting
officer that determines the fate of the suspect.'
[39] The Constitutional Court Groves N.O. v Minister of Police at para 56 to 57 held
that:
'[56] Section 43(2) of the CPA places a positive duty on an arresting officer to arrest the person
identified in the warrant with the use of the word "shall". There is no scope to interpret
section 43(2) of the CPA as granting the arresting officer a discretion whether to arrest or not.
The "shall" relates to execution of the warrant and does not expressly or by implication create
room for a discretion. Section 44 of the CPA determines that a warrant of arrest issued "may"
be executed by a peace officer, and the peace officer executing such warrant shall do so in
accordance with the terms thereof. Taking into account the ordinary grammatical meaning and
rules of construction, the "may" relates to who has the power to execute the warrant (a peace
officer) and does not confer a discretion when executing the warrant. There is no disjuncture
between these sections: section 44 of the CPA determines who may arrest and section 43(2)
of the CPA places an obligation on the arresting officer to arrest in terms of the warrant.
[57] A warrant is issued and served in the manner prescribed by statute and circumscribes
the terms of the arrest. The person mentioned in the warrant is the person that the arresting
officer is authorised and directed to arrest. Once arrested, such person must be brought before
a lower court in accordance with the provisions of section 50 of the CPA.'
[40] Sergeant Mogoera thus acted as she was duty bound to act in arresting the
[40] Sergeant Mogoera thus acted as she was duty bound to act in arresting the
plaintiff in temis of the warrant and did so at the court for the purpose of securing the
plaintiff's appearance in court. The fact that the plaintiff then never appeared as a
result of the decision taken not to prosecute does not have the result that the arrest
was unlawful as was contended for by the plaintiff.
[41] The Constitutional Court in Groves N.O. v Minister of Police at 60 went on to
explain that:
'[60] Applying the principle of rationality, there may be circumstances where the arresting
officer will have to make a value judgment. Police officers exercise public powers in the
execution of their duties and "[r]ationality in this sense is a minimum threshold requirement
applicable to the exercise of all public power by members of the executive and other
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functionaries". An arresting officer only has the power to make a value judgement where the
prevailing exigencies at the time of arrest may require him to exercise same; a discretion as
to how the arrest should be affected and mostly if it must be done there and then. To illustrate,
a suspect may at the time of the arrest be too ill to be arrested or may be the only caregiver
of minor children and the removal of the suspect would leave the children vulnerable. In those
circumstances, the arresting officer may revert to the investigating or applying officer before
finalising the arrest.'
[42] It is common cause that the plaintiff was at the Thaba Nchu police station on
16 March 2020 and engaged SergeantMogoera, she did not arrest him on 16 March
2020. It's further common cause that the plaintiff then called her on 17 March 2022
and they met at the Thaba Nchu Court and proceeded to an office. SergeantMogoera
exercised a value judgment on 16 March 2022 by not immedia tely arresting the
plaintiff . Having established that the arrest was pursuant to a warrant of arrest, and
that Sergeant Mogoera was duty bound to arrest in execution of the warrant, the arrest
was prima facie lawful. The onus of proving the wrongfulness of the arrest by showing
that the warrant was irregular or non -compliance withs 43 of the CPA rests upon 1l1e
plaintiff. As already deal t with earlier in this judgmen t, no validity challenge was raised
on the pleadin gs, and it thus marks the end of the determinable issues.
[43) In the result, the plaintiff's claim cannot succeed. No circumstances exist
which wouldwarranta departure from the established principlethatcosts should follow
the event.
[44] The following order is made:
1 The claim is dismissed with costs.
D GREYLING-COETZER
JUDGE OF THE HIGH COURT
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Appearances:
For the plaintiff:
Instructed by:
For the defendant:
Instructed by:
M Litheko
Litheko Motsoeneng Incorporated,
Bloemfontein
NM Phakama
State Attorney,
Bloemfontein.
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