IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION ; MAHIKENG
In the matter between:
REGOPODITSWE MORETI
KEDIBONE NELLY MOLEFE
DINEO PATRICIA MOTLHOKI
and
MINISTER OF POLICE
Coram: WESSELS AJ
Date of hearing
Not reportable
CASE NUMBER:992 /2019
FIRST PLAINTIFF
SECOND PLAINTIFF
THIRD PLAINTIFF
DEFENDANT
:26 August 2025
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Delivered: This judgment was handed down electronically by circulation to the
parties' representatives via email. The date and time for hand-down of the
judgment is deemed to be 14h00 on 24 February 2026.
Summary: Arrest - Lawfulness of- Arrest without warrant in terms of s
40( 1 )(b) of Criminal Procedure Act 51 of 1977 - Juri sdictional facts -
Proof of - Reasonable suspicion - Public violence - Arrest during
commun ity unrest - Conflictin g versions of events - Credibi lity and
probabilities - Onus on defendant to prove lawfu lness of arrest and detention
- Exerc ise of discretion - Evaluation of evidence - Clai ms for dama ges
dismissed.
JUDGMENT
WesselsAJ
Introduction
[ l] The plaintiffs instituted an action against the Minister of Police for
damages arising from their arrest and subsequent detention between 17 and
19 June 2017. The arrests occurred during a period of communi ty unrest at
Makosheng Village, Mabe skraal, Rusten burg, whic h is within the jurisdiction
of this Court.
[2] The plaintiffs contend that members of the Public Order Police Unit of
the South African Police Service acted without the requisite legal just ification
in arrest ing them, thereby infringing their consti tutional rights to freedom and
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security of the person. The defendant maintains that the arrests were lawful
in terms of s 40( 1 )(b) of the Criminal Procedure Act 51 of 1977, as the
arresting officers entertained a reasonable suspicion that the plaintiffs were
participating in public violence.
Background facts
[3] It is common cause that on 17 June 2017, the Mabeskraal area was the
scene of a violent protest involving approximate ly 350 community members.
A public road was barricaded with stones and debris, and fires were set to
obstruct traffic. Members of the Public Order Police Unit were deployed to
restore order. Captain Ramagogodi, the first witness for the defendant,
testified that the situation was highly tense and disorderly.
[ 4] The police officials attempted to resolve the conflict through mediation.
When this avenue proved to be unsuccessful, the police officia ls shot stun
grenades and rubber bullets at the crowd.
[5] The crowd barricaded an important public access road ('the road ') with,
inter alia, branches and rocks. He identified the first plaintiff as an active
participant in barricading the access road with various objects. He
subsequently effected her arrest to ensure her attendance in court.
[6] Constable Senna testified that he observed the second plaintiff throwing
branches into a fire on the road. He pursued her and effected the arrest after
the crowd began pelting the police with stones. Captain Tlalang (a Warrant
Officer at the time of the arrest) testified that he observed the third plaintiff
throwing branches into the fire on the blocked road. He focused on the third
plaintiff and arrested her.
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[7] The accou nts of all the arresting officers were that these arrests were
targeted intervent ions aimed at specific individuals who were active
perpetrators of crime, as they were observed to be contribu ting to the public
violence.
[8] The plaintiffs' version stands in stark contrast. The second plaintiff, a
member of the Commu nity Police Forum, testified that she approached the
police to mediate and relay community grievances . She claimed she was
arrested while attempting to faci litate this commun ication.
[9] The first and third plaintiffs testified that they both approached Captai n
Ramagogodi to inquire about the reason for the Second Plaintiffs atTest.
They furth er alleged that he became irritated and stated, • You yellow bones
are irritating; 1 will show you, after which Capta in Ramagogodi arres ted both
of them. The first and third plaintiffs asserted that they were merely checking
on the well-being of the second plaintiff and were arrested without cause.
[1 OJ They claimed they were already arrested and detained inside the police
vehicle before the poli ce used force to disperse the crowd , which contradicts
the officers' test imony that the arrests occurred as part of the dispersal
operation.
Issues to be decided
[11] I am enjoin ed to determine whether the defendant proved that the
juri sdictio nal facts for a warrantless arrest were present and whether the
arresting officers exerc ised the ir discretion rationa lly. Furthermore, I must
resolve the conflicting factual versions by evaluat ing the probabilities
inherent in the evidence led .
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Applicable legal principles
[ 12] Depriving someone of libe1ty is significant, and the defendant has the onus
of proof. The following statement, made by the court in Minister of Law and
Order v Hurley 1, is indicativ e of the trite approach followed in relation to the
onus of proof:
' I would add that I consider it to be good policy that the law should be as there stated. An
arrest constitutes an interference with the liberty of the individual concerned, and it
therefore seems to be 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.'
[13] Sect ion 40(l)(b) of the Crimi nal ProcedureAct 2 ('CPA') allows a peace
officer to arrest, without a wan-ant, any person whom they reasonably suspect
of having committed a Schedu le 1 offence, such as public violence. The CPA
provides peace officers with specific powers to maintain public order and
safety. More appropriate in relation to the facts of this matter, under Section
40(1 )(a), a peace officer may arrest any person who commits any offence in
their presence without a warrant.
[14] As establ ished in Duncan v Mini ster of Law and Order3, the defendant
must prove the four jurisd iction al facts , being: the arrestor was a peace
officer; the arrestor enterta ined a suspicio n; the suspicion was that the arrestee
1 Minister of Law and Order v Hurley 1986(3) SA 568 at 589 E-F Cf. Zeeland v Minister for Justice
and Constitutional Development and Another 2008 (2) SACR ( 1) CC paras 24 and 25.
2 Criminal Procedure Act 51 of 1977.
3 Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818 G-H.
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committed a Schedule l offence; and the suspicion was based on reasonable
grounds.
[15] The test for a reasonabl e suspicion, as articulated inter alia in Mabona
and Another v Minister of Law and Order and Other -1, is objective. A court
must determ ine whether a reasonable person in the position of the arresting
officer, possessed of the same information , would have formed the suspicion.
The officer is not requ ired to have evidence sufficient for a conviction but
must act on concrete facts. Furthermore, once these facts are established, the
officer must exercise his discretion whether to arrest.
[16] In Minister of Safety and Security v Sekhoto and Another5, the Supreme
Court of Appeal stated that discretion must be exercised in good faith, rationally,
and not arbitrarily. Peace officers can act as they see fit within rational bounds.
The standard is not breached if their choices differ from what the cou1t considers
optimal, as long as their actions remain rational. The requirement is not
perfection, but reasonable decision-making.
Analysis
[17] The adjudication of this matter requires the determination of which
version of events is more probable. This necessitates a qualitative assessment
of the truth and the inherent probabilities of the evidence , rather than a
4 Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 at 658 E-H.
5 Minister of Safety and Security v Sekhoto and Antoher ( 13 1/ 10) [2010] ZASCA 141; 20 11 ( 1) SACR
315 (SCA); [201 I] 2 All SA 157 (SCA); 2011 (5) SA 367 (SCA) (19 Novembe r 2010) para 38-39.
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mechanical balancing of the two accounts. The test to be app lied in these
circumstances had been enunciated in Selamolele v Makhado 6as follows:
'Ultimate ly the question is whether the onus on the party, who asserts a state of facts. has been
discharged on a balance of probabilities and this depends not on a mechanical quantitative
balancing out of the pans of the scale of probabilities but. firstly, on a qualitative assessment
of the truth and/or inherent probabilities of the evidence of the witnesses and. secondly , an
ascetta inment of which of two versions is the more probable.'
[18] When considering the circumstances of a violent protest involving 350
people and widespread barricading , the police 's version is inherently more
probable. It is improbable that trained Public Order Police officers, tasked
with quelling a violent protest, would randomly arrest three unsuspecting
members of the public who were merely attempting to act as mediators or
concerned individuals.
[ 19] In a situation where the police are being pelted with stones and are
forced to use stun grenades and rubber bullets, their focus is logically on the
individuals who are actively fuelling the disorder. The specific testimony of
Captain Ramagogodi, Constable Senna and Captain Tlalang in detailing the
observat ion of the first plaintiff maintaining a barricade and the second and
third plaintiffs feeding a fire provides the 'solid facts' required for a
reasonable suspicion. The suggestion that the police would bypass actual
rioters to arrest peaceful bystanders is not consistent with the operational
realities of public order policing.
6 Se!amo!e!e v Makhado 1988(2) SA 372 (V) at 374.1-3758 .
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[20] The plaintiffs' vers10n, pa11icularly the allegation that Captain
Ramagogodi used a derogatory 'yellow bones ' slur, must be scrut inised. This
allegation is found to be improbable and was not proved on a balance of
probabilities. Such a comment is fundamentally inconsistent with the
disciplined and operationally focused nature of the Public Order Police Unit
during a tactical dispersal operation. Given the volatility and the physical
evidenc e of the barricades, the plaintiffs' claim that they were arrested while
peacefully inquiring about a detention is unlikely. I find that the suspicion
formed by the officers was objective and reasonable, and the decision to arrest
was a rational response to the observed public violence.
[2 I] Regarding the discretion to arrest, once suspicio n of public violence
arose, the decision to arrest was rational and intend ed to secure the plaintiffs'
attendance in court and to suppress further violence. There is no evidence of
mala fides or an ulterior motiv e. The plaintiffs' subse quent detention was a
lawful conseq uence of the arrest, and they were brought before a court at the
first available opportunity. While the plaintiffs' cond itions of detention are
noted, they do not render the initially lawful arrest and detention unlawful.
Conclusion
(22] The defendant has successfu lly established that the arrests of the first,
second, and third plaintiffs were lawful. The jurisdictional facts required by
s 40(l)(b) of the CPA were present, and the officers' suspicion was reasonab le
and based on direct observation of conduct during the violent protest. The
plaintiffs' version is found to be improbable when weighed against the context
of the polke operation. Consequently, the claim for unlawful arrest and
detention must be dismissed.
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Order
[23] In the result, the following order is made:
1. The plaintiffs' claims are dismissed.
2. The plaintiffs are ordered to pay the defendant's costs of suit on a patty
and party Scale A, jointly and severa lly, the one paying the other to be
absolved.
MWE SELS
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Appearances
Counsel for plaintiffs
Instructed by
Counsel for the defendant
Instructed by
:Adv O Ntsamai
:Malebye & Maleho Attorneys
:c/o Ntsama i Attorneys
:Mahikeng
:Adv M Nduli
:State Attorney
:Mahikeng