IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
Reportable
CASE NO: 1515/2018
In the matter between:
MXOLISI JONAS Plaintiff
and
MINISTER OF POLICE Defendant
________________________________________________________________
JUDGMENT
________________________________________________________________
RUSI J
[1] The Constitution of the land sets great store by the right to human dignity
and personal liberty. Arrest, which is a drastic invasion of these rights, is a legal
act which the law restricts to limited circumstances, whether it is with or
without a warrant. A person may be arrested without a warrant in circumstances
that the Criminal Procedure Act 51 of 1 977 (the CPA) circumscribes in section
40.
[2] On 06 September 2016, the plaintiff, a retired policeman, visited the
home of one Mr Fumanekile Mzantsi in Cingco Locality in Sdwadweni
Administrative Area, Tsolo district around 09h00. Mr Mzantsi subsequentl y
alleged the plaintiff pointed a firearm at him during their interaction in the
course of his visit at his home. In an alleged attempt by Mr Mzantsi and others
to subdue the plaintiff during the alleged pointing with a firearm, the plaintiff
sustained injuries to his body. Mr Mzantsi reported the matter to the police.
[3] Resulting from Mr Mzantsi’s report, the plaintiff was arrested by the
defendant’s members without a warrant on 06 September 2016 and detained at
the Tsolo Police Station until 08 Septemb er 2016 when he was released on bail
at the Tsolo Magistrates’ Court. The police claimed that in arresting and
detaining the plaintiff they acted in terms of section 40(1)(b) of the CPA. In
terms of this section, a peace officer may arrest a person without a warrant if he
entertains a reasonable suspicion that that person committed an offence listed in
Schedule 1 of the CPA.
[4] The plaintiff now holds the defendant liable for damages in the sum of
R50 000.00 resulting from his arrest and R100 000.00 for h is detention. He
alleges that his arrest and detention were unlawful. The plaintiff made a further
claim against the defendant for pain and suffering in the sum of R200 000.00. It
is his contention regarding this claim that the police denied him access to
medical attention for the treatment of the injuries he sustained before his
detention. The defendant resists the plaintiff’s claims.
The pleadings
[5] In his further amended particulars of claim dated 23 January 2026 the
plaintiff alleged that his arrest and detention which were without a warrant were
not justified in that in arresting and detaining him the police failed to exercise
their discretion, or they improperly exercised it or exercised it in bad faith. They
failed to arrange his release on police bail even though they had a legal duty to
do so. He further alleged that the police failed to bring him to court on 07
September when it was reasonably possible to do so.
[6] As regards his claim for pain and suffering, the plaintiff alleged that th e
police failed and/or neglected to take him to a medical facility for treatment and
detained him in circumstances where they had a legal duty to assist him with
obtaining medical treatment. As a result of their failure and/or neglect, he
remained in their custody for two days and two hours under severe pain from
his injuries.
[7] In its consequential plea dated 26 January 2026, the defendant alleged
that the plaintiff was lawfully arrested without a warrant in terms of section
40(1)(b) on the reasonable suspicion that he committed the offence of pointing a
firearm which is an offence listed in Schedule 1 of the CPA by reason of the fact
that it may be punishable by imprisonment exceeding 6 months without an
option of a fine. He was detained in terms of section 50 of the CPA on the
ground that he was charged with a serious offence and had to apply for bail. He
could not be brought before court on 07 September 2016 as the police were yet
to obtain witness statements and his criminal profiles.
[8] In defending the claim for pain and suffering, the defendant alleged that
‘the plaintiff was handed over to the supervision of Captain Marawule (Capt
Marawule) who would take him to Malizo Mpehle Hospital.’
The issues
[9] The plaintiff’s arrest and detenti on by the members of the defendant
became common cause between the parties. His allegation that the police denied
him access to medical attention and the fact that he consequently suffered pain
and discomfort remained contested. Otherwise, there was no dis pute regarding
the fact that at the time of his arrest and detention the plaintiff had sustained
injuries from an assault by other persons before the arrival of the police at the
scene of the alleged pointing of a firearm.
[10] The parties agreed that the matter would proceed only in respect of the
merits of the plaintiff’s claim. An application was made for the separation of the
quantum of the plaintiff’s claim from the merits. This application was granted.
The onus
[11] The defendant accepted the duty to begin even though the plaintiff bore
the onus of proof in respect of the claim for pain and suffering. In support of its
case, the defendant led the evidence of the arresting officer, Sgt Mdletye. The
plaintiff was the only witness in support of his case. The parties also relied on
the documents that they discovered inter se. Those documents included the
contents of the docket encompassing the criminal case against the plaintiff.
The defendant’ s case
[12] Sgt Mdletye testified as the police officer who ar rested the plaintiff in the
early afternoon on 06 September 2016. It was her evidence that s he arrested the
plaintiff on suspicion that he had pointed a firearm at Mr Mzantsi. When she
arrested the plaintiff, he had injuries on his body which, as reported , he
sustained during an assault by the members of the community. The plaintiff’s
time of detention was 13h00 on 06 September 2016.
[13] According to Sgt Mdletye, her suspicion that the plaintiff was guilty of
pointing a firearm was based on the following facts: she received a complaint
while on patrol duties with Constable Hanise that the plaintiff had pointed Mr
Mzantsi with a firearm which was also discharged. This incident took place
inside Mr Mzantsi’s house in the presence of two other persons, Ms No ncedile
Tyelela and Mrs Nokwakha Sikhwatsha. On arrival at the scene of the alleged
crime, she and Constable Hanise obtained the facts regarding how the offence
was committed from Mr Mzantsi. At the time, the plaintiff had been tied with a
rope against the pole of the Mr Mzantsi’s gate.
[14] The plaintiff’s firearm, magazine and 7 rounds of ammunition were in the
possession of the complainant and were subsequently handed over to them as
exhibits. It was explained to her by Mr Mzantsi that he won the posses sion of
the plaintiff’s firearm during a struggle that ensued over the firearm when he
together with Mrs Tyelela and Mrs Sikhwatsha attempted to subdue their
assailant, the plaintiff. Since it was indicated that the firearm was discharged
inside Mr Mzantsi ’s house, she and Constable Hanise searched Mr Mzantsi’s
house for the bullet cartridge and a bullet hole and they found none.
[15] As regards the statement of the complainant, which on the face of it
purports to have been obtained at 14:45 on 06 Septembe r 2016, a time that fell
after the plaintiff’s arrest, Sgt Mdletye explained that she recorded the statement
at the scene and merely caused the plaintiff to append his signature after he
verified its correctness. She attended to the certification and commi ssioning of
the statement upon arrival at the police station. In this regard Sgt Mdletye
testified that it was the volatility of the situation on their arrival that informed
her decision to attend to the certification of the complainant’s statement at a
later stage. According to her, while the plaintiff was tied he and the complainant
were engaged in a verbal spat and she deemed it necessary to swiftly remove the
plaintiff from the scene.
[16] Asked whether she obtained sworn statements from Mrs Tyelela an d Mrs
Sikhwatsha before arresting the plaintiff, Sgt Mdletye explained that she and
Constable Hanise received these witnesses’ verbal accounts of what transpired
in Mr Mzantsi’s house and only recorded their statements later at the police
station. These st atements which Sgt Mdletye obtained on 06 September 2019,
station. These st atements which Sgt Mdletye obtained on 06 September 2019,
are undated and not commissioned. Apart from them, there is a further statement
by Mrs Tyelela dated 21 February 2019 which bears no relevance to the time of
the plaintiff’s arrest.
[17] In regard t o the alleged refusal to take the plaintiff to a medical facility
for treatment before detaining him, Sgt Mdletye’s version was that the plaintiff
was transported to Dr Malizo Mpehle Hospital by her colleague, Captain
Marawule and he returned with medicati on which they retained at the charge
office and subsequently administered to the plaintiff as prescribed by his
treating Dr. Sgt Mdletye could not explain why there was no official record of
the plaintiff’s transportation to and from hospital as well as a record of visits to
the cells whereby the plaintiff was given treatment while in detention.
[18] The investigation diary that formed part of the discovered documents
indicates that when the docket of the case against the plaintiff was placed before
the pro secutor, the statements that were in the docket were those of Sgt
Mdletye, Constable Hanise, and that of the complainant, all dated 06 September
2016. An entry was made by the prosecutor in the investigation diary on 08
September 2019 in which he/she instr ucted the investigating officer to obtain
eyewitness statements. Those would be the statements of Mrs Tyelela and Mrs
Sikhwatsha. It also appears from the investigation diary that on 07 September
2019, the investigating officer was instructed by the person who inspected the
docket on that same day to obtain these same statements.
The plaintiff’ s
[19] According to the plaintiff, at no stage while in the home of Mr Mzantsi
did he point anyone with a firearm. Instead, he is the one that was pointed with
a firearm by Mr Mzantsi, and he was the victim of an attack on him and robbery
by Mr Mzantsi together w ith Mrs Tyelela and Mrs Sikhwatsha. He further
testified that he explained this to Sgt Mdletye at the time he was arrested. This
happened when he went to Mr Mzantsi’s home to follow up on a conversation
he had with him around 02h00 on 06 September 2016. Th e plaintiff went on to
state that on that occasion, Mr Mzantsi had brought several other men to his
home to make suggestions on how to deal with a challenge of stock theft in their
area. He asked to discuss the matter with Mr Mzantsi at another time.
[20] When he went to Mr Mzantsi’s home around 09h00 in the morning of 06
September 2016, he overheard Mr Mzantsi informing others who transpired to
be Mrs Tyelela and Mrs Sikhwatsha that the reason why he brought several men
to his home at 02h00 was to set a t rap for him, but he escaped their trap. He
confronted Mr Mzantsi with the content of this conversation. This angered Mr
Mzantsi who reached out for his firearm, pointed it at him and told him to leave
his house. As he was leaving, Mr Mzantsi and the two la dies grabbed and
toppled him. Mr Mzantsi took his firearm, and they also pickpocketed him and
took his money in the sum of R3 700.00 as well as his cellphone.
[21] The plaintiff confirmed that after he was dispossessed of his firearm and
other items, he was tied to the pole of Mr Mzantsi’s gate. After his arrest by Sgt
Mdletye and on arrival at the Tsolo Police Station he requested to be taken to
the doctor for treatment of his injuries, but his request was denied by Sgt
Mdletye. According to him, Sgt Mdle tye was consistently dismissive towards
him and told him that he talked too much and thought he knew a lot.
[22] It was the plaintiff’s version further that Sgt Mdletye did not obtain Mr
Mzantsi’s statement at the scene of the alleged pointing of a firear m but at the
police station after he was arrested.
The parties’ submissions
[23] In respect of the claims founded on unlawful arrest and detention, the
case turned on whether the offence of pointing a firearm is an offence listed in
Schedule 1 of the CPA. It became evident during argument by both Counsel that
if this Court finds that this offence does not fall under Schedule 1 of the CPA,
that would be dispositive of the claim for unlawful arrest and detention.
[24] Mr Msindo referred to the case of Mekwe v Minister of Police ,1 an
unreported judgment by a single judge of the Western Cape High Court. Like
the present matter, the case of Mekwe concerned the plaintiff’s arrest without a
warrant on suspicion that he had committed the offence of pointing anothe r
person with a firearm. Mr Msindo placed reliance on the following passages of
the said judgment by Landman J:
‘The pointing of a firearm is not an offence listed in schedule 1 of the CPA. In my view it
ought to be included in the list. This brings me to the question whether the offence in
question is an offence ‘the punishment wherefore may be a period of imprisonment
exceeding six months without the option of a fine’ which is listed in schedule 1 of the CPA. . .
Ms Ntuli, who appeared on behalf of the de fendant, submitted that the Firearms Control Act
60 of 2000 (the FCA) provides that a conviction for pointing a firearm carries a sentence of
imprisonment without the option of a fine. I beg to differ. . . In terms of section 121 of the
FCA ‘any person con victed of a contravention of or a failure to comply with any section
mentioned in Column 1 of Schedule 4, may be sentenced to a fine or to imprisonment for a
period not exceeding the period mentioned in Column 2 of that Schedule opposite the number
of that section’. (My emphasis.) Section 120(6) is listed in Schedule 4 and carries a term of
imprisonment not exceeding 10 years. Clearly a person convicted of pointing a firearm may
be sentenced to a fine or to imprisonment not exceeding 10 years.’2
[25] Although Ms Qikila initially indicated that she had not had occasion to
consider the judgment relied upon by Mr Msindo, after she was afforded the
opportunity to consider the argument made, she conceded Mr Msindo’s
argument. This is a fundamental question which relates to one of the most
argument. This is a fundamental question which relates to one of the most
common offences for which most arrests are made without a warrant ostensibly
in terms of section 40(1)(b) of the CPA. It is expedient that I deal with the issue
further despite the concession made by Ms Qikila.
1 Mekwe v Minister of Police (1171/2014) [2016] ZANWHC 40 (17 June 2016).
2 Id, para 10 –13.
The legal framework
[26] For ease of comprehension, it is beneficial to set out the legislative
framework relevant to the offence of pointing a firearm. In terms of section
120(6) of the Firearms Control Act 60 of 2000 (the Act or the Firearm Control
Act), it is an offence to point—
(a) any firearm, an antique firearm or an airgun, whether or not it is loaded or
capable of being discharged, at any other person, without good reason to
do so; or
(b) anything which is likely to lead a person to believe that it is a firearm, an
antique firearm or an airgun at any other person, without good reason to
do so.
[27] Section 121 of the Act provides, in turn, that ‘any person convicted of a
contravention of or a failure to comply with any section mentioned in Column 1
of Sch edule 4, may be sentenced to a fine or imprisonment for a period not
exceeding the period mentioned in Column 2 of that Schedule opposite the
number of that section.’ The offence of pointing a firearm as envisaged in
section 120(6) is among the offences l isted in Column 1 of Schedule 4 and the
maximum period of imprisonment that may be imposed alternative to a fine is
10 years.
[28] Schedule 1 of the CPA contains more serious offences from the violent to
non-violent in nature. It includes certain common l aw offences of a more
serious nature and serious offences created by certain statutes. The offences
created by the Firearms Control Act are not part of the statutory offences which
from part of Schedule 1 by mere listing. It ought to follow that for the pu rposes
of an arrest under section 40(1)(b), they will fall under the catch -all provision if
they are punishable by imprisonment exceeding six months without the
alternative of a fine. This is what the catch -all or general provision in Schedule
1 provides.
Is the offence of ‘pointing a firearm’ a Schedule 1 offence?
[29] The catch-all provision in Schedule 1 must be understood in this light –
there are statutory offences, which, though not listed in it, are serious in nature
that they warrant the imposition of a direct term of imprisonment exceeding 6
months without an option of a fine. Conversely, there are statutory offences
which are less serious in nature and would not warrant punishment by
imprisonment exceeding 6 months without an option of a fine.
[30] As observed by the Appellate Division in Areff v Minister van Polisie, 3
Schedule 1 must be interpreted restrictively in the light of the fact that arrest
without a warrant constitutes potentially serious interference with personal
liberty. Upon the mere reading of section 121 of the Act, it makes provisions for
a fine for all the offences that are listed in column 1 of Schedule 4 of the Act.
The offence of pointing a firearm is among those offences. The Firearms
Control Act is the principal legislation dealing with firearm-related offences.
[31] The offence of pointing a fire arm as envisaged in section 120(6) of the
Act is not an offence listed in Schedule 1 of the CPA. Quite apart from section
40(1)(b), there is section 40(1)(h) of the CPA which creates an independent
ground of arrest without a warrant for firearm related off ences, inter alia. In
terms of this section, ‘a peace officer may without a warrant arrest any person
who is reasonably suspected of committing or of having committed an offence
under any law governing the making, supply, possession or conveyance of
intoxicating liquor or of dependence -producing drugs or the possession or
disposal of arms and ammunition.’ (My emphasis).
3 1977(2) SA 900 (A) 902E.
[32] From the long title of the Firearms Control Act, its object is ‘to establish a
comprehensive and effective system of firearms control; and to provide for
matters connected therewith’. It seems to me that in couching the long title of
the Act as it has, Parliament must have intended to regulate conduct which,
though not strictly pertaining to the ownership or possession and licencing of
firearms, directly affects public safety and undermines the safe use and control
of firearms. The conduct of pointing a firearm at another is obviously a matter
connected to the control and possession of firearms. For this reason, the offence
of pointing a firearm at another without good reason is an offence in respect of
which a person may be ar rested in terms of section 40(1)(h) of the CPA. This
ground of arrest without a warrant does not depend on this offence being a
Schedule 1 offence.
[33] On these bases, I am in respectful agreement with the learned Judge in
Mekwe, that the offence of poin ting a firearm at another in contravention of
section 120(6) of the Act is not an offence listed in Schedule 1 of the CPA. To
the extent that the police relied on section 40(1)(b) in effecting the arrest of the
plaintiff without a warrant the defendant’s pleaded justification of the arrest and
detention cannot stand. The concession by Ms Qikila was well made. The
defendant failed to justify the plaintiff’s arrest and detention.
[34] Whether, as Landman J opined in Mekwe, the offence of pointing of a
firearm ought to be included in the list of Schedule 1 offences is an important
question impacting not only policy considerations but also the interpretation of
the provisions of section 40(1) of the CPA regarding the powers of the police to
arrest a person wit hout a warrant. For this reason, it is a matter I intend
reverting to when it is opportune to do so in this judgment.
[35] But even if I err in finding that the offence of pointing a firearm is not
[35] But even if I err in finding that the offence of pointing a firearm is not
included in the list of Schedule 1 offences, there are oth er reasons why the
defendant’s defence cannot be sustained. The exercise of powers to arrest
without a warrant in terms of section 40(1)(b) entails making a value judgment
based on the facts received about the alleged commission of the offence in
question, and the circumstances in which it is alleged to have been committed.
[36] The test for the reasonableness of the grounds of suspicion on which a
warrantless arrest may be effected, was laid down in Mabona and Another v
Minister of Law and Order and Others,4 where the court held:
‘[T]he reasonable man will therefore analyse and assess the quality of the information at his
disposal critically and he will not accept it lightly or without checking it where it can be
checked. It is only after an examination o f this kind that he will allow himself to entertain a
suspicion which will justify an arrest. This is not to say that the information at his disposal
must be of sufficiently high quality and cogency to engender in him a conviction that the
suspect is in fa ct guilty. The section requires suspicion not certainty. However, the suspicion
must be based upon solid grounds. Otherwise, it will be flighty or arbitrary, and not a
reasonable suspicion.’
[37] The difficulty I have with Sgt Mdletye’s testimony is that even though Mr
Mzantsi had claimed that the plaintiff’s firearm was discharged during the
struggle that ensued when he and his two witnesses attempted to subdue the
plaintiff, Sgt Mdletye’s own ver sion was that she and Constable Hanise could
not find any evidence of a discharged firearm in the form of a spent bullet
cartridge or a bullet hole anywhere in the house. In the light of the plaintiff’s
explanation that he was the victim of an attack in Mr Mzantsi’s house, this
ought to have cast doubt on the veracity of the account of Mr Mzantsi and his
witnesses regarding what transpired.
[38] Furthermore, Sgt Mdletye’s version that she verified Mr Mzantsi’s
account of what occurred in his house by means of Mrs Tyelela and Mrs
Sikhwatsha’s verbal statements which she recorded at the police station later
Sikhwatsha’s verbal statements which she recorded at the police station later
that day is rendered improbable by the fact that the statements she referred to
4 Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) at 658G-H.
are undated and are not commissioned. What is more, the entry dated 08
September 2019 by the prosecutor who was seized with the docket of the case
against the plaintiff, in which she/he instructed the investigating officer to
obtain eyewitness statements of Mrs Tyelela and Mrs Sikhwatsha suggests that
the statements of these wit nesses were not part of the docket at the time the
plaintiff appeared in court even in their undated and uncertified form. From the
entry dated 07 September 2016 made by the person who inspected the docket, it
becomes clear that the statements of these two witnesses had not been obtained
as of 06 September 2019 when the plaintiff was arrested and detained. An
irresistible finding is that Sgt Mdletye failed in her obligation to verify the facts
she had at her disposal before arresting the plaintiff in circum stances where it
was possible and practical for her to do so. For this reason, her suspicion that
the plaintiff was guilty of pointing a firearm was not founded on reasonable
grounds. On this ground alone, the plaintiff’s claim for arrest and detention
must succeed.
[39] As regards the plaintiff’s claim for pain and suffering, Ms Qikila merely
invited the court to make its own determination on the version presented by the
defendant in the light of the absence of an official record depicting the
submission of the plaintiff to medical attention. I turn to deal with this issue.
The plaintiff’ s claim for pain and suffering
[40] A determination of liability for delictual damages caused by the omission
on which the plaintiff basis this claim rests on wrongfulness , fault, causation
and the harm caused. Fault may take the form of intention or negligence. For the
sake of completeness, an omission is not wrongful merely because it has caused
harm.5 It is wrongful if the defendant is under a legal duty to act positiv ely to
prevent the harm suffered by the plaintiff. The test is one of reasonableness. A
5 Minister van Polisie v Ewels 1975 (3) SA 590 (A) 597.
defendant is under a legal duty to act positively to prevent harm to the plaintiff
if it is reasonable to expect of the defendant to have taken positive measures to
prevent the harm.6
[41] In the present case, the defendant’s negligence, the elements of
wrongfulness and causation; and the fact that the defendant had a duty to act in
relation to the plaintiff’s claim for pain and suffering were not the issues before
me. The parties’ respectiv e pleadings indicate as much. This claim turned on
whether the defendant’s version that positive measures were taken to prevent
harm should prevail as being credible and therefore probable.
[42] The standard of proof in civil proceedings is that of a balance of
probabilities. The court must be satisfied, on a preponderance of probabilities,
that the version of the onus bearing party is true and therefore acceptable. Such
probabilities must be such that, on a preponderance, it is probable that the
particular state of affairs existed.7
[43] The essence of the defendant’s pleaded defence to this claim is that the
matter of taking the plaintiff to a medical facility was assigned to Captain
Marawule. To substantiate this defence, Sgt Mdletye testified that Captain
Marawule did, as a fact, take the plaintiff to hospital for medical attention. This
is indeed different from a positive assertion that he was submitted to medical
treatment. What Sgt Mdletye stated was not specifically pleaded, and this
offends the trite principle that the purpose of the pleadings is to define the issues
for the other party and the court and that a party has a duty to allege in the
pleadings the material facts upon which it re lies.8 That being so, Mr Msindo
accepted that both parties ventilated the facts that emerged for the first time in
6 Van Eeden v Minister of Safety and Security (176/01) [2002] ZASCA 132; [2002] 4 All SA 346 (SCA); 2003
(1) SA 389 (SCA) (27 September 2002), para 9.
7 Schwikkard PJ (et al), Principles of Evidence, 4th Ed, 2016, page 627, at 32.7.
7 Schwikkard PJ (et al), Principles of Evidence, 4th Ed, 2016, page 627, at 32.7.
8 Minister of Safety and Security v Slabbert [2009] ZASCA 163; [2010] 2 All SA 474 (SCA) (30 November
2009), para 11.
Sgt Mdletye’s evidence concerning this issue, and therefore no party has been
prejudiced. This is the exception to the rule as explained in Slabbert.9 I turn to
determine whether the version of the plaintiff or that of the defendant on the
already mentioned narrow issue of fact is credible and therefore probable.
[44] The starting point is that the defendant did not call Capt Marawule as a
witness. Mr Msindo asked that I draw an adverse inference against the
defendant. An adverse inference will be drawn against a party who fails to call
an available witness. Failure to call a witness suggests that the said party fears
that the evidence of suc h witness would not support its case. However, the
adverse inference is dependent on two factors. The first is that such a witness
would elucidate an aspect of the facts testified to by the party concerned. The
second one is that the said witness was in fa ct available to testify. This is trite
law.10
[45] When asked about Capt Marawule’s whereabouts, Sgt Mdletye indicated
that he was no longer employed in the SAPS and as such she has no knowledge
of his whereabouts. Ms Qikila did not give any indication whether the witness is
alive or not, or that for other reasons he would not be considered as an available
witness. I am disinclined, therefore, to draw an adverse inference against the
defendant for his failure to call Capt Marawule. This leaves this Court wi th the
testimony of Sgt Mdletye as the only version in rebuttal of the plaintiff’s claim
for pain and suffering.
[46] The are two conflicting versions regarding the submission of the plaintiff
to medical attention. For one version to be accepted and not th e other, the court
must be satisfied, on a preponderance of probabilities, that that version is true
and accurate and therefore acceptable. It is trite that the estimate of the
9 Id para 12.
10 Elgin Fireclays Limited v Webb 1947 (4) SA 744 at page 749 -750; see also Tshishonga v Minister of Justice
and Constitutional Development and Another 2007 (4) SA 135 (LC); Boyce NO v Bloem 1960 (3) SA 855 (T) at
864.
credibility of a witness will be inextricably bound up with a consideration of the
probabilities of the case. This is the well -established approach to be followed in
resolving two mutually destructive versions in civil proceedings. 11
[47] Sgt Mdletye was at pains to explain why there is no official record of the
plaintiff who was already in the custody of the police being taken out of the
confines of police detention to a medical institution, and back. She conceded
that such a record ought to appear in the occurrence book (the SAPS 10
register). Her assertion that the plaintiff was given his treatment at the specified
times is not supported by the entries made in the occurrence book. In fact, there
are no such entries in the occurrence book.
[48] It bears emphasizing that the applicable SAPS registers are not
documents which were de signed for a mere ‘tick -box’ exercise by those who
must utilize them. They are the official record of all the actions that are taken
concerning arrestees and detainees. The same is to be said regarding the
registers used for recording items or articles con nected with the commission of
crime and which are to be used in evidence in court proceedings, and any other
items such as the personal possessions of the detainees. These registers are the
tools of accountability and transparency within the SAPS and are a imed at
promoting the integrity of the SAPS’s case administration system. Their
importance is further gleaned from the fact that the police officers who are in
control of the detainees are never left to their own devices, so to speak. It is
unsurprising th at the said registers are inspected by the relevant officers in
command of the relevant police station or charge office.
11 Stellenbosch Farmers' Winery Group Ltd. and Another v Martell & Cie SA and Oth ers (427/01) [2002]
ZASCA 98; 2003 (1) SA 11 (SCA) (6 September 2002) para 5; National Employers’ General Insurance Co Ltd v
Jagers [1984] 4 All SA 622 (E), at 624-5.
[49] To my mind, it is inconceivable that an incident as fundamental as the
removal of a detainee from police custody for submission to a medical or other
institution could be dealt with so casually as Sgt Mdletye would have the court
believe. Equally improbable is the fact that a detainee’s medication or
prescription drugs would be handled in the informal manner that Sgt Mdletye
portrayed. On these bases alone, Sgt Mdletye’s testimony must be rejected for
improbability and that of the plaintiff accepted as credible and therefore
probable. An ineluctable finding is that the plaintiff was denied medical
attention by the members of the de fendant. The plaintiff’s claim for pain and
suffering must accordingly succeed.
Conclusion
[50] It is opportune to return to the question whether, as Landman J opined in
Mekwe, the offence of pointing a firearm ought to be listed in Schedule 1 of the
CPA in the context of an arrest without a warrant in terms of section 40(1)(b) of
the CPA.
[51] It is indeed so, that South Africa is one of the countries that are ravaged
by crime, most of which is committed by the use of firearms. This makes the
unlawful use of firearms an equally serious matter. The inclusion of offence of
pointing of a firearm in the list of Schedule 1 offences in the context of the
authority of the police to arrest a suspect of this crime without a warrant is
where I must respectfully differ with the sentiments of the court in Mekwe
which Counsel who appeared in the present case shared.
[52] It must be remembered that section 40(1) of the CPA makes provision for
seventeen grounds on which a person may be arrested without a warrant.
Section 40(1)(h) whose provisions I have discussed above, is one of those
grounds. As outlined above, although section 40(1)(b) restricts the powers of the
police to arrest without a warrant to the offences listed in Schedule 1, section
40(1)(h), on the other hand, creates an independent ground of arrest without a
warrant where the person is reasonably suspected of committing firearm ‑related
offences which include unlawful conduct such as pointing a firearm at another
without good reason in contravention of se ction 120(6) of the Firearms Control
Act.
[53] I accept that in practical terms, when arresting a person for firearm
related offences the police are not expected to determine whether a particular
firearm related offence falls within the ambit of Schedule 1 or not. It must have
been against the realization of this fact that section 40(1)(h) was promulgated to
ensure that the police have lawful authority to arrest without a warrant a person
who is reasonably suspected of committing a firearm related offence. For these
reasons, I hold the view that it is not necessary to include the offence of
pointing of a firearm in the list of Schedule 1 offences for the purposes of an
arrest without a warrant in the context of section 40(1) of the CPA.
[54] Lastly, in the interests of legal certainty it behoves me to state that in the
matter of Unathi Noholoza v Minister of Police ,12 an undefended action
unrelated to the present case, I made an assertion that ‘possession of a firearm
which is an offence created by section 3 of the Act is an offence listed in
Schedule 1 of the CPA by reason of the fact that it is punishable by a maximum
period of 15 years without an option of a fine’. 13 In Noholoza, the plaintiff was
arrested on suspicion that he was in possession of an unlicenced firearm. One of
the material allegations that the plaintiff made in support of his claim was that
this arrest without a warrant was not justified in terms of section 40(1)(a) or
40(1)(b) of the CPA. From the charge sheet and the record of proceedings in the
Magistrates’ Court before which he was brought after arrest, the charge against
him, at his first appearance was a contravention of section 3 of the Firearms
him, at his first appearance was a contravention of section 3 of the Firearms
12 Unreported judgment under case number 2072/2024, Eastern Cape Division of the High Cour t, Mthatha,
delivered on 27 January 2026 (Noholoza).
13 See paragraph 18 of the judgment.
Control Act as read with several other sections of the same Act, including
section 121. This offence is among the offences that do not form part the list of
Schedule 1 offences.
[55] Even though the case of Noholoza did not turn on the specific issue
whether unlawful possession of a firearm fell under Schedule 1 or not, since it
was an undefen ded action, it is necessary that I clarify the dictum I made
regarding the offence of possession of a firearm being a Schedule 1 offence, and
I do so hereunder.
[56] Section 3 of the Firearms Control Act creates a general prohibition of
possession of a fi rearm or ammunition without a licence or permit, which, in
terms of section 121 of the same Act, read with Column 2 of Schedule 4, is
punishable by a fine or imprisonment for the maximum period of 15 years.
Section 4 of the same Act prohibits the possessio n of fully automatic firearms
on pain of a fine or a maximum period of imprisonment of 25 years. I may add
that under section 4 of the Act, a fully automatic firearm may only be licenced
in the circumscribed provisions of the Act. The licencing of a semi -automatic
firearm is also restricted in terms of the Act.
[57] On the other hand, the Criminal Law Amendment Act 105 of 1997 (the
CLAA) makes provision, in Part II of Schedule 2, for a prescribed minimum
sentence of 15 years as punishment for ‘any offence relating to the possession of
an automatic or semi -automatic firearm,’ among other things. It is trite that the
CLAA was enacted, inter alia, to provide for minimum sentences for certain
serious offences. The tension between the sentencing provisions in section 121
of the Act and CLAA in relation to automatic and semi -automatic firearms was
resolved when the court in S v Thembalethu,14 held:
14 2008 3 All SA 418, at para 6.
‘The phrase ‘Notwithstanding any other law’ in the section (i.e. s 51(2)) clearly indicates that
the provisions supersede all other laws on sentence and apply to all offences listed in Part II
of Schedule 2. That list includes an offence referred to as of the possessi on of ‘a semi -
automatic firearm’. The section’s wording is couched in unambiguous and peremptory terms
(‘shall’), and the offences to which it applies are stipulated.’
[58] Thembalethu was followed in Swartz v S, 15 where the court held that the
minimum sentences applied when the specific circumstances of an offence
brought it within the scope of one of the schedules to the CLAA and that the
Firearms Control Act which came into effect after the CLAA was not intended
to repeal this latter legislation.16 In S v Motloung17 the Supreme Court of Appeal
held that there was no indication that the Act was intended to repeal the earlier
CLAA.18
[59] The importance of the above exposition is this: more often than not, when
a person is found in possession of an unlicenced firearm, the police are required
to act expeditiously – they would not have had the opportunity to establish
whether that firearm is an automatic or semi -automatic firearm. It is not
inconceivable, despite the punishment provided for in section 121 of the Act for
the general prohibition in section 3, that in a particular case, a person found in
possession of an unlicensed firearm may be sentenced under the CLAA if it is
found that the firearm in question, was an automatic or semi -automatic
firearm.19 In keeping with this view, the offence of possession of a firearm may
attract a sentence exceeding 6 months without an option of a fine. It is the view
I hold that this brings the offence of unlawful possession of a firearm in
contravention of the general prohibition of section 3 of the Act within the realm
15 2016 (2) SACR 268 (WCC).
16 Id paras 16; 20 and 28.
17 2016 (2) SACR 243 (SCA).
15 2016 (2) SACR 268 (WCC).
16 Id paras 16; 20 and 28.
17 2016 (2) SACR 243 (SCA).
18 Id, para 20 and 23; see also, S v Madikane 2011 2 SACR 11 (ECG) paras 18 – 22.
19 See Thembalethu, para 11.
of the catch -all provision in Schedule 1 for the purposes of effecting an arrest
without a warrant.
[60] I say this is not unmindful of the provisions of section 40(1)(h) which I
have dealt with above. To my mind, an arrest without a warrant would be
justified for the offence of possession of a firearm both under section 40(1)(b)
and section 40(1)(h), and this will invariably be determined by the facts unique
to each case. So much for the clarification of the already mentioned dictum in
Noholoza.
[61] On the merits of the present matter, and in the light of all the foregoing,
the plaintiff’s claims against the defendant must succeed.
Costs
[62] The general rule is that costs must follow the result. In the present case,
there no grounds for deviating from this rule. The plaintiff must be awarded his
costs as the successful litigant. Mr Msindo and Ms Qikila were in agreement
that the issue of law on which the plaintif f’s claim for unlawful arrest and
detention turned is a complex one and that this marked this case as unusually
complex. Mr Msindo submitted that costs are to be recoverable on scale B. Ms
Qikila conceded this argument. The default position set by Uniform Rule 67A is
that costs will be recovered on scale A unless there is justification for the
application of a higher scale. The complex nature of the case will be one such
justification.20 There is merit to the submissions made by Mr Msindo. Costs on
scale B are warranted.
Order
[63] In the result, I make the following order:
20 Khuza and Another v Khanyiwe (5009/2018) [2025] ZAECMHC 15; [2025] 2 All SA 463 (ECM) (4 March
2025), para 27.
1. The defendant is held liable for the damages suffered by the plaintiff
resulting from his unlawful arrest on 06 September 2016, and
subsequent detention at the Tsolo Police Station until 08 September
2016.
2. The defendant is held liable for the plaintiff’s damages for pain and
suffering resulting from the failure of the police at the Tsolo Police
Station, to submit the plaintiff to medical treatment before his
detention on 06 September 2016.
3. The determination of the quantum of damages shall stand over for
determination on a later date.
4. The defendant shall pay the plaintiff’s costs of suit on scale B referred
to in Uniform Rule 67A.
_____________________
L RUSI
JUDGE OF THE HIGH COURT
Appearances:
For the Plaintiff : Mr VV Msindo
VV Msindo & Associates, Mthatha
For the defendant : Adv Qikila
Instructed by : The Office of the State Attorney, Mthatha
Heard: 26, 27 and 28 January 2026
Delivered: 17 February 2026