REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2016/26965
In the matter between:
TSHEPO RASILE Plaintiff
and
MINISTER OF POLICE First Defendant
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS Second Defendant
JUDGMENT
NTHAMBELENI, AJ
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
09/03/2026 ___________________
DATE SIGNATURE
2
Introduction
[1] The plaintiff (Mr Rasile) brings this application claiming general damages in the
amount of R 4 000 000.00 (Four Million Rands) arising from his arrest by
members of the first defendant on 2 December 2014 . He was released from
custody on 3 December 2014 after his bail was fixed at R 1000.00 ( One
Thousand Rands). He also claim s against the second defendant for alleged
malicious prosecution.
[2] He instituted this action in the High Court, despite the fact that the arrest lasted
only one day, and the quantum claimed falls within the jurisdiction of the regional
Magistrate’s Court.
Background
[3] The plaintiff alleges that his arrest was unlawful and that the prosecution
instituted against him was malicious. The defendants deny these allegations and
contend that the arrest was lawful and effected in accordance with the provisions
of the Criminal Procedure Act.1
[4] The civil trial commenced on 21 October 2025. The plaintiff was called to testify
together with witness, Ms Zanele Ntini (Ms Ntini) who was with him during his
alleged unlawful arrest. At the close of his case, an application for absolution
from the instance was submitted on behalf of the second defendant. The parties
were requested to file and submit heads of argument by 23 October 2025.
Following submissions made by both counsels, the Court handed down
judgement in favour of the second defendant . Captain Phatlane was the only
witness called for the first defendant and testified that the plaintiff was arrested
pursuant to a lawful entrapment operation. He further testified that Ms Ntini, was
allegedly romantically involved with the plaintiff, had been a pupil volunteer at the
police station and assisted in the operation. T hat evidence was not challenged
at all during cross-examination.
1 51 of 1977 (“the CPA”).
3
Summary of the witnesses’ testimony during trial
Tshepo Rasile (plaintiff)
[5] The plaintiff testified that he is a 43 year old male and resides in Lenasia South.
He was employed by the first defendant for 12 years prior to his dismissal from
service. Though not relevant to these proceedings, the plaintiff testified that after
an internal disciplinary hearing, he was dismissed on suspicion of theft (a motor
vehicle). He started off in the rank of a Constable and prior to his dismissal , he
was detective (investigating officer). He testified that while he was stationed at
Lenasia South Police Station, he was allocated a reckless and negligent driving
police docket to investigate. The suspect in the case was Mr Leonard Sibanda
who collided with a minor child.
[6] The plaintiff testified that he went to obtain the suspect’s statement. After
securing the statement, he requested the suspect’s driver’s license. The suspect
informed him that his license was missing and suggested that it may have been
lost at the scene of the collision. Instead, the suspect provided a copy of his traffic
register. The plaintiff further testified that he took a copy of the suspect’s traffic
register to the Johannesburg Metropolitan Police Department (JMPD) to verify
whether the suspect was in possession of a driver’s license. The JMPD informed
him that he did not appear on their system.
[7] The plaintiff further testified that Mr Sibanda advised him that he and the
grandmother of the child with whom he collided with had agreed that he (Mr
Sibanda) would assist with medical expenses. The plaintiff stated that he advised
Mr Sibanda that, if such an agreement existed, a statement recording its terms
should be obtained and placed in the docket.
[8] The plaintiff further testified that he received a phone call from the grandmother
of the child, who informed him that Mr Sibanda was swearing at her and stating
that Mr Rasile was continuing to investigate the case despite the existence of
that Mr Rasile was continuing to investigate the case despite the existence of
their private agreement.
[9] He testified that on 2 December 2014 he reported for duty but was instructed to
return home as he was scheduled to work the night shift. He thereafter decided
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to take his vehicle for re -gassing in town and asked his friend , Ms Ntini , to
accompany him. She agreed. While on route to town, Mr Sibanda called him. He
then drove past Mr Sibanda’s residence with Ms Ntini . Upon their arrival, Mr
Sibanda was still engaged in a telephone conversation. He approached the
vehicle on the passenger side. He testified he was surprised when Sibanda
produced money, began counting it, and attempted to hand it to Ms Ntini. He
immediately held Ms Ntini’s hand and instructed her not to accept the money. He
then informed Mr Sibanda that he d id not want th e money, particularly as Mr
Sibanda had previously had an argument with the grandmother of the child
pertaining the settlement of the case and medical expenses. He told Mr Sibanda
to take the money where it was supposed to go, namely to the grandmother of
the child.
[10] Mr Sibanda thereafter returned to the yard. Ms Ntini indicated she wished to have
some water and followed him. That is when money was allegedly forcefully given
to Ms Ntini by Sibanda. When Ms Ntini returned to the car, he started the car and
drove off slowly , as he still engaged in a phone conversation. He did not say
anything to Ms Ntini, and shortly thereafter, their vehicle was blocked by another
vehicle. The occupants pointed firearms at them and instructed them to alight
from the vehicle. He and the v ehicle were searched. He was then asked where
“the money ” was, to which he responded by asking which money was being
referred to. A police officer then approached Ms Ntini and similarly asked her
where the money was. The money was found i n Ms Ntini ’s possession. They
were placed in separate vehicles and driven to Eldorado Police Station , where
he was detained. He testified that he was informed that his detention was the
result of an entrapment operation that was conducted.
[11] When questioned by his legal representative regarding entrapment, the plaintiff
[11] When questioned by his legal representative regarding entrapment, the plaintiff
testified that not all police know how entrapment works. Those who know work
at the anti-corruption unit. He stated that it was only explained to him during his
criminal trial. He stated that he was informed by the magistrate and during the
evidence how entrapment works.
[12] He stated that , according to his understanding, the police official must make a
s 252A application and specify to whom the money must be handed to. By way
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of illustration, he explained that if “A”, who is a police officer, gives money to “B”,
then “B” must in turn hand the money to “C”. However, if “B” gives the money to
any person other than “C”, the operation would not proceed as authorised, and
the entrapment would, in his view, be rendered unlawful.
[13] He testified further that he had previously been the subject of two entrapments
operations, which failed, and he was ultimately found not guilty at the ensuing
criminal trial. During cross examination , when asked about the status of his
employment with the SAPS, the plaintiff testified that he had been dismissed on
charges of, inter alia, possession of a stolen vehicle. Regarding the charge of
reckless and negligent driving, it was put to the plaintiff during cross examination
that the docket in that matter had received a nolle prosequi from the NDPP prior
to 2 December 2014, being the date on which he went to Mr Sibanda’s residence.
It was suggested that, as a result , there had been no need for an y further
investigation. Mr Rasile denied the nolle prosequi had been issued. He testified
he had not taken the docket to the prosecutor and that, as at 2 December 2014,
the docket had not been closed.
[14] When asked whether he had taken the statement recording the alleged
agreement to assist with medical costs, he testified that he had not done so. He
explained that he was unable to obtain such statement because Mr Sibanda and
the grandmother were already in conflict, and for that reason no statement was
taken. The plaintiff further denied the version put to him that he had demanded
an amount of R 3000 from Mr Sibanda in order to make the reckless and
negligent case against him “go away”.
[15] When cross examined on the entrapment, he confirmed that he has no
knowledge on how entrapments are conducted and that he ha d never
participated in such an operation. When it was put to him that a warrant of arrest
participated in such an operation. When it was put to him that a warrant of arrest
is not required to effect an arrest once a n application in terms of section 252A
has been authorised, he stated that he ha d no knowledge thereof . He
nevertheless questioned whether the operation should proceed in circumstances
where the money was not found on the intended target. He confirmed that h is
knowledge of entrapment was limited to what he heard in court and that
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constituted the extent of his understanding. On that point , he stated further that
he was not an expert on entrapments.
[16] During cross examination, when asked what the police officials had informed
him, he was being arrested for, he contended that he was arrested for
“entrapment”. It was put to the plaintiff that he had in fact been arrested on an
allegation of corruption and that the entrapment was merely the mechanism
employed to secure his arrest. If was further put to the plaintiff that it would be
disputed that he had been found not guilty on the basis that the magistrate had
declared the entrapment unlawful. The plaintiff also testified during cross
examination that the basis upon which he contends that his arrest was unlawful
is that the money was not found in his possession, but rather on Ms Zanele Ntini.
Zanele Ntini
[17] Ms Ntini testified that she is an educator at St Benedicts in Durban. She came to
know the plaintiff when she use d to work at the Lenasia South Police Station at
the youth desk, where they became friends.
[18] On 2 December 2014 she was at home when the plaintiff called and asked to
accompany him to town to have his vehicle serviced. She agreed, as she also
intended going to the Department of Home Affairs in town. When the plaintiff
fetched her, they drove past a place where there was a workshop and parked on
the side of the road. The plaintiff was on the phone with the people who were to
service his car. At the workshop, there was a black vehicle and an elderly, dark-
complexioned male.
[19] Mr Sibanda came out of the yard and approached their vehicle on the passenger
side. He stretched out his hand holding money and said to the plaintiff, “I will see
you later for the balance”. The plaintiff then said to Mr Sibanda, “You know where
the money is supposed to go ”. Mr Sibanda thereafter returned to the yard. As
she was thirsty , Ms Ntini decided to follow Mr Sibanda in to the yard to ask for
she was thirsty , Ms Ntini decided to follow Mr Sibanda in to the yard to ask for
water. She called out to him and requested some water. He responded, “Come
in” and she said she was afraid of the dogs. Mr Sibanda then handed her the
money forcefully by placing it in her hands and said that he did not understand
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why the plaintiff did not want to take it. He gave the money Ms Ntini and again
asked her to tell the plaintiff that he would see him later for the balance.
[20] Ms Ntini returned to the vehicle with the money still in her hand. They then drove
off before she could inform the plaintiff about being forcefully given the money .
While on their way, a red vehicle overtook them and then stopped in front of them
and another vehicle stopped behind them. People who identified themselves as
police officers emerged from the vehicles with firearms and instructed them to
get out of the car . They searched the plaintiff and found no money on him and
then proceeded to her side and asked her where the money was . She testified
that she still had the money held in her hands and she handed the money to the
police officer and the police officer took the money. Thereafter, the police officer
who took the money took out an A4 paper, and the officers compared the money
on the paper with the money found on her.
[21] The police officers arrested them and drove them to the police station in separate
vehicles. Ms Ntini told the police officer driving her that she knew nothing about
the money. The officer responded that the plaintiff should admit that Ms Ntini had
no knowledge of the money. He further stated that she should admit that it was
the plaintiff who sent her into Mr Sibanda’s yard to fetch the money. Ms Ntini
maintained that she had gone into the yard merely to ask for water and not to
collect any money on behalf of the plaintiff.
[22] Ms Ntini further testified that at the police station, while a police officer was taking
her statement, he recorded incorrect information, namely that the plaintiff had
instructed her to follow Mr Sibanda into the yard. She stated that she pointed out
the inaccuracy, whereupon the statement was corrected . It was only after the
correction had been made that she sign ed it. The following day, when she
correction had been made that she sign ed it. The following day, when she
appeared in court, she was informed that she was not being charged and was
thereafter released. A few days later, police officers came to her home. They did
not enter the premises; instead, she went outside to the ir vehicle, where they
took a further statement from her, as she was now to be a state witness. She
testified that she asked the police officers why she has to make another
statement because her previous statement has not changed ?. Then the officers
then told her that it was on the basis that she is now a state witness.
8
[23] During cross examination, Ms Ntini confirmed that Mr Sibanda had spoken to the
plaintiff and stated that he would see him later for the balance. When asked why
she did not drink the water after initially getting out of the vehicle for that purpose,
she explained that she was afraid the money would get wet, as she would have
had to drink the water with her hand. When further questioned as to why she did
not hand the money to the plaintiff through the window. She testified that she had
intended to return to drink the water but instead got back into the vehicle and
closed the door because the plaintiff was on the phone and she did not wish to
disturb him. It was put to her that she did not need to speak to the plaintiff but
could simply have gestured for him to roll down the window and handed him the
money. She responded that she did not see the need to do so.
Captain Phatlane
[24] Captain Phatlane was called to give evidence on behalf of the first defendant. He
is a member of the Serious Corruption Investigation Unit which investigates
serious corruption by government officials and private citizens. He has been in
the employ of the SAPS for 23 years.
[25] He testified that on 17 November 2014 he was allocated with a complaint of
corruption by the commander against a member of the SAPS, being the plaintiff.
The complainant was Mr Sibanda. He contacted Mr Sibanda and they arranged
to meet at the Engen garage in Zakaria Park. On the same day , he and Officer
Jantini met with Mr Sibanda. They interviewed him, and he stated, inter alia, that
the investigating officer in his reckless and negligent case was demanding
R 3 000 to make the case “go away”, failing which he was threatening to arrest
him. Mr Sibanda’s complaint was written down, read back to him , and he
proceeded to sign it. An inquiry docket was accordingly opened for investigation.
[26] Captain Phatlane submitted a section 252A application to authorise an
[26] Captain Phatlane submitted a section 252A application to authorise an
entrapment operation. People cited on the application are : the handler, the
investigating officer, the target and the agent. He testified that t he application
must also include the time and place of the entrapment operation. The application
was given to the co -ordinator who, at the time, was Captain Erasmus who then
handed it to the N ational Director of Public Prosecutions (NDPP). The
9
entrapment authorisation was granted on 25 November 2014 . Upon receipt of
the authorisation, Captain Phatlane applied for money with SAPS Finance. An
amount of R 1 500.00 was made available for purpose s of the entrapment.
Captain Phatlane testified further that copies of the cash notes to be used in the
operation were made and certified. He then waited for Mr Sibanda to reach out
to him again.
[27] On 2 December 2014, Mr Sibanda contacted him and reported that the plaintiff
had called, demanding money. Captain Phatlane advised Mr Sibanda to inform
the plaintiff that he only had R 1 500.00 and that he would receive the balance
at a later stage, and to ask him to collect it at his residence. Captain Phatlane
then assembled Officer Teffo and Officer Taueatswala to assist with the
operation. They proceeded to the same Engen garage where they had previously
met Mr Sibanda. There, Captain Phatlane searched Mr Sibanda to confirm that
he had no money on him, counted the money and handed him the R 1 500. Mr
Sibanda then drove to his home, accompanied by Officer Teffo, where he was to
meet the plaintiff.
[28] Captain Phatlane confirmed that he was stationed further down the road , near
the clinic, and was therefore unable to observe the transaction. He testified that
Mr Sibanda called and informed him that the transaction had taken place,
whereafter his team proceeded to block the plaintiff’s vehicle. The plaintiff was
searched, but no money was found on hi s person. Ms Ntini then handed the
money over to Captain Phatlane. He compared the notes with the photocopies
of the marked cash and, after confirming that they corresponded, the plaintiff and
Ms Ntini were arrested. They were subsequently detained at the Eldorado Police
Station.
[29] When questioned whether a warrant of arrest was required once a section 252A
authorisation was obtained, he confirmed that such warrant was not needed. He
was further questioned on the lawful ness of the entrapment where a third-party
was further questioned on the lawful ness of the entrapment where a third-party
intercept the money. He testified that this does not affect the lawful ness of the
entrapment. He elaborated further that since the plaintiff was being investigated
and eventually charged with corruption, the elements of the crime state that the
10
benefit can be received direct or indirectly, as such, the fact that the money was
given to Ms Ntini did not render the entrapment unlawful.
[30] Captain Phatlane proceeded to state that once a demand for gratification is
made, the elements of corruption are satisfied. He denied that the plaintiff was
discharged on the basis that the magistrate had found the entrapment to be
unlawful. Instead, he stated that the fact that Mr Sibanda had agreed to assist
with the victim’s medical expenses and had failed to inform the prosecutor of this
arrangement, resulted in the state being unable to prove beyond reasonable
doubt at the criminal trial.
[31] Captain Phatlane confirmed , with reference to the relevant docket, that the
reckless and negligent driving docket received a nolle prosequi on 6 November
2014. He testified that there was therefore no reason for the plaintiff to continue
with the investigation or to visit Mr Sibanda’s home in relation to that matter .
According to him, it was the plaintiff’s duty to inform Mr Sibanda that the docket
would be closed, as the prosecutor had declined to prosecute. He further stated
that the plaintiff’s failure to disclose this information, coupled with the continued
demand for payment of R 3000 to make the case “go away” despite knowing the
fate of the docket, suggested that he was engaging in underhanded conduct.
[32] During cross examination , Captain Phatlane was asked whether the complaint
was rendered irrelevant in light of the fact that the negligent driving docket had
already received a nolle prosequi. He responded that the suspect in that matter,
Mr Sibanda, was unaware of the prosecutor’s decision, and that he himself was
also unaware of it at the time of conducting the inquiry. When questioned as to
why he had not appl ied for the interception of telephone call recordings, he
explained that such a step requires a court order and that the process can take
explained that such a step requires a court order and that the process can take
several months. He further testified that he could not request the reckless and
negligent driving docket directly from the plaintiff, as doing so would have alerted
him to the investigation.
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Legal Authority on Merits
[33] This Court finds itself faced with two mutually destructive versions. To come to a
conclusion on disputed facts, a court must make findings on the credibility of the
witnesses, their reliability and the probabilities.2
[34] The plaintiff bears the overall onus of proving that his or her version is more
probable than that of the defendant. This is the general civil standard of proof on
a balance of probabilities. The onus remains on the plaintiff throughout the trial,
even where the defendant raises a defence or leads evidence in rebuttal.3
[35] In the present matter, the first defendant advanced the defence that a warrant of
arrest is not required where a s 252A authorisation has been granted by the
NDPP. On that basis, it was contended that, notwithstanding the s 252A
authorisation, the plaintiff bore the onus of proving that his arrest was unlawful.
The effect of this contention is that, once the first defendant adduced evidence
through Captain Phatlane that the arrest was effected pursuant to a s 252A
authorisation, the evidentiary burden shifted to the plaintiff to establish that the
arrest remained unlawful despite such authorisation.
[36] It is trite that the defendant bears the onus of justifying the lawfulness of an arrest.
In Minister of Law and Order v Hurley4 it was held:
“an arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems fair and just to require that the person who
arrested or caused the arrest of another person should bear the onus of
proving that his action was justified in law”.5
2 Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie SA & Others [2002]
ZASCA 98; 2003 (1) SA (SCA) (“Stellenbosch Farmers”).
3 See National Employers’ General Insurance Co Ltd v De Jagers 2003 (1) SA 11 (SCA) and
Stellenbosch Farmers above.
4 1986 (3) SA 568 (A).
5 Id at 589E-F.
12
[37] The jurisdictional facts for an arrest without a warrant are set out in section 40
(1) (b) of the Criminal Procedure Act and were refined thus in Duncan v Minister
of Law and Order6 as being:
(a) The arrestor must be a peace office.
(b) The arrestor must entertain a suspicion.
(c) The suspicion must be that the arrest ee committed an offence which falls
under Schedule 1 of the Act.
(d) The suspicion must rest on reasonable grounds.
[38] It is established law that once the jurisdictional requirements have been satisfied,
the arresting officer may invoke the power to arrest the suspect/s. The arrestor’s
discretion only arises when all the jurisdictional facts have been established.7
[39] In the matter of Shidiack v Union Government,8 the court held:
“now it is settled law that where a matter is left to the discretion or determination of a
public officer, and where his discretion has been bona fide exercised or his judgement
bona fide expressed the Court will not interfere with the result…. But it would be
unable to interfere with a due and honest exercise of discretion, even if it considered
the decision inequitable or wrong.9
[40] It is accepted that a peace officer is entitled to exercise his or her discretion as
they deem appropriate. However, the officer vested with such discretion must
exercise it in good faith, rationally , and not arbitrarily. Where a peace officer
decides to arrest a suspect for the purpose of bringing that person before court,
it is submitted that such discretion will ordinarily have been exercised rationally
and in good faith.
[41] The Supreme Court of Appeal in Sekhoto held:
“the standard is not breached because an officer exercises the discretion in a manner
other than that deemed optimal by the court. A number of choices may be open to
6 1986] ZASCA 24; [1986] 2 All SA 241 (A) at para 23.
7 Minister of Safety and Security v Sekhoto [2010] ZASCA 141; 2011 (5) SA 367 (SCA)
(“Sekhoto”).
8 1912 AD 642.
9 Id at 651-652.
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him, all of which may fall within the range of rationality. The standard is not perfection
or even the optimum, judged from the advantage of hindsight - so long as the
discretion is exercised within range, the standard is not breached.”10
[42] The eventual conviction of acquittal of a person does not play a role in
determining whether the arrest was lawful or not.11
Analysis
[43] It is common cause that the plaintiff bears the onus of proving his claim on a
balance of probabilities. He contends in the particulars of claim that the arrest
conducted by the members of the first defendant was unlawful as it was
conducted without a warrant. Captain Phatlane, on behalf of the first defendant,
gave evidence which was clear and succinct. He explained fully the procedure to
be followed when setting up an entrapment operation to effect an arrest. Most
importantly, he testified that a warrant of arrest is not needed in instances where
a s 252A authorisation is granted. The plaintiff testified to the fact that he was not
an expert on entrapment operations and could not dispute the preposition that a
warrant of arrest was not needed for an entrapment. There was no evidence
placed before the Court to challenge the evidence of Captain Phatlane in relation
to entrapments. Therefore , his evidence on this issue remains undisputed and
should be accepted by the Court.
[44] Applying the test set out in Stellenbosch Winery, this courts finds that Captain
Phatlane was a reliable and credible witness. He works in the anti-corruption unit
of the SAPS and has engaged in many entrapment operations. Captain Phatlane
did not receive a complaint directly from Mr Sibanda, rather it was allocated to
him by his Commander and he fully testified to the chain of command and all the
preliminary procedural requirement before entrapment . There is no evidence to
suggest that he had ulterior motives for arrest the plaintiff. He testified that, before
suggest that he had ulterior motives for arrest the plaintiff. He testified that, before
this operation, he did not know the plaintiff from the bar of soap . His years of
experience and expertise dealing with corruption cases make him a credible
witness. This courts against any counter evidence suggesting otherwise, accepts
10 Sekhoto above n 7 at para 36.
11 See R v Moloy 1953 (3) SA 659 (T); also Prinsloo and Another v Newmans 1975 (1) SA 481
(AD).
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that the evidence of Captain Phatlane is probable and the plaintiff’s arrest was
not unlawful as required in our law. Therefore, the requirements for unlawful
arrest have not been satisfied, even on the version of the plaintiff alone.
[45] On the contrary, the plaintiff was a very evasive witness who clearly did not
understand what the requirements of lawful or unlawful entrapment was even on
his own version. In his evidence in chief, it was clear that he relied on the fact
that his case was dismissed and as a result it renders his arrest unlawful. He
tried to distance himself from the events of the day in question by being on the
phone at critical moments when the exchange of money wa s happening. The
plaintiff evidence is highly improbable.
[46] Furthermore, the plaintiff when probed conceded to lacking knowledge on
entrapments., His evidence that he “heard” how entrapments operate during the
criminal trial constitutes inadmissible hearsay, as it amounts to information
obtained from a third party who was not called to testify. The plaintiff’s limited
understanding on entrapment falls short of the standard required to discharge
the onus resting upon him to prove his claim. He was unable meaningfully to
challenge or confirm the propositions put to him in cross examination concerning
entrapment, repeatedly indicating that he knowledge thereof. In the
circumstances, the allegation that the entrapment was unlawful is meritless and
unsubstantiated.
[47] Ms Ntini ’s testimony on why she re-entered the vehicle and closed the door
when she intended to hand the money to the plaintiff and then return to drink
water is unreliable. She was unable to provide a satisfactory explanation as to
why she did not simply hand the money to the plaintiff through the window and
proceed to drink water, which was the purpose for which she had initially alighted
from the vehicle. Her evidence does not advance the plaintiff ’s case. In the
from the vehicle. Her evidence does not advance the plaintiff ’s case. In the
circumstances where the plaintiff bears the onus of proving that the alleged
entrapment was unlawful, Ms Ntini’s unsatisfactory and contradictory testimony
fails to discharge that burden. The claim accordingly falls to be dismissed with
costs.
15
[48] Based on the totality of evidence led , it is clear that the plaintiff’s claim should
be dismissed with costs.
Evidence and the onus of proof
[49] Captain Phatlane, evidence of indicates that all the procedural requirements
were met in this case. Further, nothing contrary was put to him regarding the
unlawfulness of the entrapment. Therefore, bald allegations by the plaintiff who
conceded that he does not know the pro cess and procedural requirement for
entrapment under the CPA should be rejected.
[50] It is trite that the onus rests on the plaintiff to prove that the arrest was unlawful.
In Minister of Law and Order v Hurley and Another ,12 the court held that once it
is established that an arrest was made, the onus shifts to the arrestor to justify it.
However, in this case, the first defendant has provided credible evidence
justifying the arrest.
[51] The evidence of Captain Phatlane established that the arrest was the result of a
lawful entrapment operation, conducted in accordance with the CPA. The plaintiff
failed to rebut this evidence or to demonstrate that the arresting officers acted
without reasonable suspicion or in bad faith.
[52] The plaintiff’s reliance on the fact that he was later acquitted or that charges were
withdrawn is misplaced. As held in Minister of Safety and Security v Sekhoto and
Another,13 the lawfulness of an arrest does not depend on the outcome of the
prosecution. An acquittal or withdrawal of charges does not, in itself, render an
arrest unlawful.
[53] Regarding the claim for malicious prosecution, the plaintiff bore the onus to prove
that the prosecution was instituted without reasonable and probable cause and
with malice. No such evidence was adduced. The application for absolution from
the instance by the second defendant was correctly granted.
12 1986 (3) SA 568 (A) at 589E-F.
13 [2010] ZASCA 141; 2011 (5) SA 367 (SCA).
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[54] While the admissibility of entrapped evidence is now primarily governed
by section 252A of the CPA, that section explicitly states that the evidence is still
subject to the exclusionary rule in section 35(5) of the Constitution.
[55] This means that even if a trap complies with the statutory requirements of section
252A, the court retains the constitutional power to exclude the evidence if the
manner of its procurement makes the subsequent trial unfair or harms the
administration of ju stice. The court essentially retains a judicial discretion or
rather, a constitutional duty triggered by a value judgment - to exclude evidence
where the police misconduct is too egregious to be overlooked.
[56] Premised on the evidence presented during trial , the plaintiff failed to produce
sufficient evidence on a balance of probability to lawfully justify why the first
defendant’s conduct , in so far it relate s to the entrapment , should fall within
section 35(5) of the Constitutional exclusionary rule.
Costs
[57] The plaintiff elected to institute this action in the High Court, even though the
arrest lasted only one day , and the quantum claimed falls within the jurisdiction
of the regional Magistrate’s Court. This Court is of the view that the matter could
and should have been instituted in the regional court. The plaintiff’s choice of
forum was therefore inappropriate and must be reflected in the costs order.
[58] The plaintiff was detained for one day and thereafter released on fixed bail. In
the circumstances, no proper justification has been advanced for the quantum of
general damages claimed, which appears disproportionately high relative to the
duration of the detention.
[59] In the same breath, a plaintiff who unrealistically overestimate their quantum runs
the risk of being deprived costs on the High Court scale. The present matter
could have been easily dealt with in the Magistrate’s Court considering the
could have been easily dealt with in the Magistrate’s Court considering the
number of days the plaintiff was detained. It is clear that the plaintiff claim was
unrealistic and further failed to prove the claim before this Court.
Order
[60] In the result, the following order is made:
1 . The plaintiff's claim against the First and Second Defendants is dismissed.
2. The plaintiff is ordered to pay the costs of the action on party-to-party Scale
C.
APPEARANCES
For the Plaintiff:
Instructed by:
For the Defendants:
Instructed by:
Date of Hearing:
Date Delivered:
R.R NTHAMBELENI
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION , JOHANNESBURG
Adv Mhlobo Tonyela
Mudzusi Molobela Attorneys
Adv S Kunene
State Attorneys , Johannesburg
23 October 2025
09 March 2026
17