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[2026] ZAWCHC 148
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Member of the Executive Council for the Department of Transport and Public Works and Another v Zilwa (Leave to Appeal) (18320/2019) [2026] ZAWCHC 148 (26 March 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Reportable
Case
No
:
18320/2019
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL FOR THE
DEPARTMENT
OF TRANSPORT AND PUBLIC WORKS FIRST
DEFENDANT/
FIRST
APPLICANT
MINISTER
OF POLICE
SECOND DEFENDANT/
SECOND
APPLICANT
and
HYMIE
ZILWA
PLAINTIFF/RESPONDENT
Coram:
ANDREWS AJ
Heard
:
20 March 2026
Delivered:
26 March 2026
Summary:
Leave to appeal partly granted on a confined Schedule 1 issue
arising from conflicting authority; warrantless arrest for s 59(4)(b)
NRTA speeding held unlawful for lack of jurisdictional facts, and
ensuing SAPS detention likewise unlawful for want of an independent,
constitutionally compliant discretion.
Leave
to Appeal
— Superior Courts Act 17(1): Leave granted only
where reasonable prospects of success exist, or some other compelling
reason
warrants appellate intervention. A merely arguable case does
not satisfy the statutory threshold.
Arrest
— s 40(1)(b) Criminal Procedure Act — Schedule 1:
Contravention of s 59(4)(b) of the National Road Traffic Act
(exceeding
a posted speed limit) is not a Schedule 1 offence. Section
89(3) prescribes “a fine or imprisonment”, which falls
outside
the residual Schedule 1 category requiring a penalty of
imprisonment without the option of a fine. Jurisdictional facts for a
warrantless
arrest were absent.
Conflicting
first instance authorities
: Divergent High Court judgments
on whether NRTA speeding offences fall within the concluding category
of Schedule 1 constitute
a compelling reason under s 17(1)(a)(ii) to
permit appellate clarification. Limited leave granted on this issue
alone.
Administrative
instruments (Code Book / NAG):
A provincial offence code book and
“no admission of guilt” notation cannot expand or create
powers of arrest; they
may guide operations only once CPA
jurisdictional facts are met.
Detention
— SAPS discretion: Detention is not automatic upon receipt
under s 50 CPA. SAPS must independently exercise a constitutionally
compliant discretion. Short lived detention does not cure
unlawful deprivation of liberty.
Pleadings
:
No new case was read in. The court applied settled legal consequences
to pleaded and proved facts concerning unlawful arrest and
ensuing
detention.
Order
:
Leave to appeal granted on the single Schedule 1 issue; all remaining
grounds dismissed; costs to be costs in the appeal.
ORDER
Leave
to appeal is granted to a Full Court of the Western Cape Division,
confined to the issues set out in paragraph [43] of this
judgment.
All
other grounds of appeal advanced by the Applicants are dismissed at
the leave stage.
The
costs of the applications for leave to appeal shall be costs in the
appeal.
JUDGMENT
ANDREWS,
AJ:
Introduction
[1]
The
First and Second Applicants seek leave to appeal to the Full Court of
this Division, against the whole of the judgment and orders
delivered
on 9 January 2026. In that judgment, I upheld the Plaintiff’s
claim for unlawful arrest and subsequent detention,
dismissed the
Second Defendant’s special plea of non joinder, and
dismissed the claim for malicious prosecution.
[1]
For the sake of convenience, I refer to the parties as per the main
action.
[2]
At
the hearing, counsel for the Plaintiff recorded instructions to
concede that leave to appeal should be granted, but only because
there is a conflicting High Court judgment on the Schedule 1 point
relied on by the First Defendant, namely
Tshangela
v Minister of Police (“Tshangela
”
)
[2]
,
an
unreported decision from the Gauteng Division (not binding on this
Court). The Defendants contended that a Full Court of this
Division
is the appropriate forum and not the Supreme Court of Appeal (“SCA”)
as contended for by counsel for the Plaintiff.
[3]
Notwithstanding the concession, I was requested
to deliver a reasoned judgment addressing the grounds advanced by
both
Defendants; I do so below.
Legal
framework
[4]
The
test to be applied in an application for leave to appeal is set out
in s 17(1)(a) of the Superior Courts Act
[3]
which provides-
‘
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that-
(a)
(i) the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
(b)
the decision sought on appeal does not fall within the ambit of
Section 16(2)(a); and
(c)
where the decision sought to be appealed does not dispose of all
the issues in the case, the appeal would lead to a just and prompt
resolution of the real issues between the parties.’
[5]
Our
courts have emphasised that leave should not be granted unless there
truly is a reasonable prospect of success. There must be
a sound,
rational basis to conclude that another court would (not merely
might) reach a different result. The “compelling
reason”
ground in s 17(1)(a)(ii) does not float free of the merits; though it
may be satisfied, for example, by conflicting
judgments, an important
question of law, or a discrete issue of public importance, the merits
will often remain decisive.
[4]
[6]
I
have also considered the further authorities cited in argument on s
17(1). It is pellucid that none departs from the SCA’s
settled
approach that reasonable prospects are required, and where absent,
leave may still be granted only for a compelling reason,
with the
merits remaining decisive.
[5]
It
is trite that a mere possibility of success falls short of the
statutory threshold.
[6]
That
approach has repeatedly been affirmed by the SCA and remains the
controlling standard
.
The
additional authorities cited by the First Defendant accord with the
approach in
Ramakatsa
v African National Congress
[7]
,
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
[8]
and
MEC
for Health, Eastern Cape v Mkhitha
[9]
and do not suggest a different standard.
Summation
of the grounds of appeal advanced
[7]
The
First Defendant challenges
inter
alia
,
(i) the conclusion that exceeding a posted speed limit under s
59(4)(b) of the National Road Traffic Act
[10]
(“NRTA”) is not a Schedule 1 offence for purposes of s
40(1)(b) of the Criminal Procedure Act
[11]
(“CPA”); (ii) the court’s approach to the Offence
Code Book and the “no admission of guilt” (“NAG”)
annotation; (iii) the finding that the arresting officer retained and
failed properly to exercise a discretion to arrest; and (iv)
the
reference to
Egerer
v Minister of Police and Others
[12]
in finding against the First Defendant.
[8]
The
Second Defendant contests (i) the finding that the detention was
unlawful, contending that, once a traffic officer presents
an
arrested person, s 50 of the CPA obliges SAPS to receive and detain
mechanically, leaving no scope to assess lawfulness or necessity
of
detention
;
(ii)
that the Plaintiff’s pleadings did not raise an
unlawfulness of detention case and the court impermissibly
“read into” the pleadings to assist the Respondent with
his case; (iii) that SAPS members exercised their discretion
by
processing and releasing the Plaintiff the same evening; and (iv)
that
De
Klerk v Minister of Police
[13]
was misapplied because SAPS did not effect the arrest.
Whether
contravention of s 59(4)(b) of the National Road Traffic Act falls
within Schedule 1 to the Criminal Procedure Act
[9]
S 40(1)(b) authorises a warrantless arrest only
for an offence “referred to in Schedule 1”. The
residual
category in Schedule 1 encompasses offences “
the
punishment wherefor may be a period of imprisonment exceeding six
months without the option of a fine”
. By contrast, s 89(3)
of the NRTA stipulates that a contravention of s 59(4)
(exceeding a posted speed limit) is punishable
by “
a fine or
imprisonment for a period not exceeding three years”
.
Because this penalty structure offers an option of a fine, s 59(4)(b)
does not fall within the residual category of Schedule 1;
the
s 40(1)(b) threshold is therefore not met.
[10]
This conclusion follows directly from
the statutory text. Whatever
policy considerations may underlie the provision, the analysis turns
solely on the statute as enacted.
A court is not at liberty to
replace the statutory wording with its own view of the offence’s
seriousness.
Conflicting
judgments
[11]
The
First Defendant relied on
Tshangela
,
although the factual matrix in that matter differs from the present
case. In
Tshangela
,
the court dealt with s 61 of the NRTA and adopted a purposive
construction of the catch-all category in Schedule 1, reasoning
that
the penalty provision allows for direct imprisonment and therefore
treated the offence as falling within Schedule 1.
[14]
[12]
A
further authority relied upon to illustrate a divergent interpretive
approach is
Lethena
v Minister of Police
[15]
.
In that matter, the court held that an arrest for unlawful possession
of a firearm was competent under s 40 of the CPA because
the offence
falls within Schedule 1. This conclusion rested on s 121 of the
Firearms Control Act, which permits a sentencing court
to impose a
term of imprisonment without the option of a fine for contraventions
listed in Schedule 4. On that basis, the court
rejected the
contention that the mere presence of a discretion to impose a fine
necessarily excludes an offence from Schedule 1.
[13]
The reasoning
in
Lethena
turned, however, on the statutory
framework governing firearm offences; offences which the court
regarded, by their nature and
penalty structure, as falling squarely
within the category of serious contraventions for which the
Legislature contemplated warrantless
arrest. The considerations in
Lethena
are therefore distinguishable from the present case,
where the offence actually relied upon was a contravention of s
59(4)(b) of
the NRTA, a penalty provision that expressly offers an
option of a fine. Nonetheless,
Lethena
illustrates the
existence of an interpretive divergence on the meaning and
application of the concluding Schedule 1 category. This
divergence
reinforces the need for appellate clarification and forms part of the
broader conflict in first instance authority
justifying the
confined grant of leave.
[14]
Although
the differing interpretive approaches in the authorities
create practical tension, I remain satisfied that, on a proper
construction
of the concluding category of Schedule 1, a
contravention of s 59(4)(b) does not fall within its ambit. At the
same time, it must
be acknowledged that there is now a lack of
uniformity in first instance authority regarding the correct
interpretive approach
to that category in the NRTA context. That
conflict, while not altering the conclusion
in casu
, where the
statutory scheme is materially different, forms part of the basis for
the confined grant of leave under s 17(1)(a)(ii).
The
Offence Code Book and the “no admission of guilt” (NAG)
designation
[15]
The First
Defendant contends that: (i) the Western Cape
“Offence/Traffic Code Book” is a departmental instrument
issued under
the NRTA framework and used operationally by traffic
authorities; (ii) the “no admission of guilt” (NAG)
designation
for s 59(4)(b) at speeds of 161 km/h+
signposts the gravity of the conduct and, in practice, informs the
response to
technology assisted detections; (iii) the officer
was entitled to have regard to the Code Book as “riglyne/guidance”
when deciding on next steps; and (iv) in that light, the arrest
should not have been faulted merely because the Code Book, rather
than the CPA alone, featured in the officer’s reasoning (the
ultimate source of power being the CPA).
[16]
The
Code Book is an administrative guide. It does not source, create, or
expand powers of arrest, which are conferred by the CPA,
more
particularly ss 38–40
,
and
constrained by the Constitution, in particular s 1(c) and s 2
(legality and constitutional supremacy), s 12(1)
(freedom and
security of the person), s 33 (lawful, reasonable and
procedurally fair administrative action), and s 35(1)
(rights
of arrested persons). A “no admission of guilt” notation
indicates only that an admission of guilt
fine is not
administratively available. It does not transform the underlying
offence into a Schedule 1 offence, nor authorise
a warrantless
arrest where s 40(1)(b) is not engaged. Official practice
cannot enlarge the statute. At most, where CPA jurisdictional
facts
already exist, such instruments may inform the operational exercise
of discretion.
[16]
A policy
determination that an admission of guilt fine will not be offered
does not elevate the offence into Schedule 1. Even if
treated as
‘quasi administrative legislation’, a provincial
Code Book and a “no admission of guilt”
notation cannot
confer or expand coercive powers beyond those conferred by the CPA
and the Constitution; to the extent of any conflict,
the latter
prevail.
Jurisdictional
facts and discretion to arrest
[17]
The
jurisdictional facts in
Duncan
v Minister of Law and Order
(“Duncan”)
[17]
include that the suspect committed a Schedule 1 offence. Because that
requirement was absent, the arrest was unlawful at the threshold.
The
discretion debate cannot cure the failure of the jurisdictional
facts. In any event, the arresting officer’s evidence
reflected
a misunderstanding that a NAG outcome compelled arrest, a view
inconsistent with
Minister
of Safety and Security v Sekhoto and Another (“Sekhoto”)
[18]
,
which emphasises that the discretion is not displaced by internal
policy. For the avoidance of doubt, even accepting, without
deciding
that the arrestor held a reasonable suspicion, s 40(1)(b) was
not triggered absent a Schedule 1 offence.
[18]
For
completeness, I have also had regard to
Mabona
& Another v Minister of Law and Order & Others
[19]
,
and
Biyela
v Minister of Police
[20]
.
Reasonable suspicion must rest on credible information, and any
discretion to arrest must be properly exercised. Those principles
do
not assist the Defendants where the Schedule 1 jurisdictional fact is
absent. If that threshold is not met, the s 40(1)(b)
power does
not arise.
Offence
selection and the s 40(1)(b) inquiry
[19]
It
may be that very high speed could, on different facts, sustain a
charge of reckless or negligent driving under s 63 of
the NRTA.
That possibility does not assist here. The lawfulness of the
warrantless arrest must be determined
ex
ante
with
reference to the offence actually invoked, namely s 59(4)(b).
The Schedule 1 enquiry turns on the penalty structure
of that
offence. Because s 89(3) prescribes “a fine or
imprisonment”, a contravention of s 59(4)(b) does
not
fall within the residual category of Schedule 1. The
jurisdictional facts for s 40(1)(b) were therefore not
established.
[21]
Nothing in
this judgment turns on the availability of a summons under s 54
or a written notice; even if such alternatives
were unavailable, the
dispositive point remains that s 40(1)(b) did not arise because
s 59(4)(b) is not a Schedule 1
offence.
Reference
to
Egerer
[20]
One
of the First Defendant’s grounds for leave is that I erred in
referring to
Egerer
v Minister of Police and Others
[22]
(“Egerer”)
,
on the basis that it is an unreported, unopposed decision that
neither undertook a Schedule 1 analysis nor authoritatively
established a rule that ordinary speeding can never ground a
warrantless arrest. I note the criticism. I referred to
Egerer
because
there are factual similarities which included
inter
alia
,
a warrantless roadside arrest by traffic officials for alleged
speeding, subsequent SAPS detention, release on warning, multiple
court appearances, and eventual withdrawal of the charge. The court
there held the arrest and detention to be unlawful and awarded
damages.
[21]
My
reasoning in the court
a quo
did not turn on
Egerer
.
It turned on the proper construction of s 40(1)(b) of the CPA
read with Schedule 1 and the NRTA penalty scheme for
s 59(4)(b). On that textual footing and applying the
established approach to jurisdictional facts and discretion, the
arrest
failed at threshold because s 59(4)(b) does not fall
within the residual category of Schedule 1.
Egerer
was
cited as contextual support, illustrating the practical alignment
where “ordinary speeding, without more” does
not justify
a warrantless arrest; not as binding authority nor as the basis on
which leave is decided.
Detention
by SAPS (Second Defendant)
[22]
The Second Defendant roots as a ground
of appeal, that once a traffic
officer delivers an arrestee to the charge office under s 50
CPA, SAPS performs a mechanical
reception function. On this footing,
members were obliged to accept and process the Plaintiff because the
arrest had already been
effected, and any later short lived
detention culminating in a same night s 72 release on
warning could not be
unlawful. The Second Defendant also suggests
that my approach imposed an independent duty on SAPS that is
inconsistent with the
statutory scheme and pleads that, on the
evidence, members did exercise their discretion by receiving,
registering and releasing
the Plaintiff.
[23]
That contention cannot be sustained. Detention
is not automatic and
must be substantively lawful in its own right. It engages s 12(1)
of the Constitution and cannot be
treated as a perfunctory sequel to
arrest. SAPS members are required to apply a discretion consonant
with the Constitution and
the CPA and as such, reception may not be
mechanical. The fact that the Plaintiff was processed and released on
warning the same
evening does not cure unlawfulness.
[24]
The
Constitutional Court in
Zealand
v
Minister of Justice and Constitutional Development and Another
[23]
affirms that the State bears responsibility for ensuring that any
deprivation of liberty is not arbitrary and remains lawful at
each
stage of custody.
Louw
v
Minister of Safety and Security
[24]
underscores the constitutional premium on liberty when arrest and
detention are assessed, even if its “last resort”
dictum
on arrest was later refined by
Sekhoto
[25]
;
it remains a reminder that liberty impairing steps are not to be
routine. Moreover,
De Klerk
v
Minister of Police
[26]
confirms
that police liability for detention may extend beyond the moment of
hand over or first appearance where, on the facts,
the initial
unlawful arrest
foreseeably
results
in continued detention. On these principles and on the facts
in
casu
,
the Plaintiff’s detention cannot be justified as a mere
incident of processing. SAPS was required to exercise an evaluative
discretion and did not do so.
Zealand
makes
plain that lawfulness is a continuing requirement; it is not fixed at
the moment of arrest.
[25]
In any event, because the arrest
failed at the Schedule 1
threshold, the ensuing detention lacked a lawful foundation from the
outset and fell to be set aside
on that basis alone. This conclusion
accords with the reasoning earlier in this judgment on s 40(1)(b),
read together with
Schedule 1 of the CPA.
Pleadings
and the “reading in” complaint
[26]
The
Second Defendant contends that the Court impermissibly expanded the
Plaintiff’s case by treating unlawful detention as
though it
had been pleaded with greater particularity than was in fact the
case. They argue, in substance, that: (a) arrest (by
the First
Defendant) and detention (by the Second Defendant) are distinct
functions that ought to be considered separately; (b)
under s 50
of the CPA, SAPS performs a mechanical reception function and is
neither expected nor empowered to interrogate
the lawfulness of an
arrest effected by another authority; (c) the onus rested on the
Plaintiff to plead and prove the unlawfulness
of the detention, and
his particulars were said to be “scant”; (d) the Court
misapplied settled principles by treating
detention as unlawful
merely because the arrest was unlawful; and (e) in holding that SAPS
failed to apply a detention discretion,
despite evidence of standing
orders, rank constraints, and the short s 72 release on
warning, the Court ventured beyond the
issues raised on the
pleadings, contrary to
Minister
of Safety & Security v Slabbert
(“
Slabbert
”
)
[27]
and
Fischer
and Another v Ramahlele and Others
(“
Fischer
”
)
[28]
.
[27]
That characterisation
is not supported by the facts
in casu
.
The issues joined under Claim A were unlawful arrest and the ensuing
unlawful detention, and the relief sought and granted pertained
to
both. The Second Defendant admitted the fact of detention and pleaded
that it was lawful. In those circumstances, once the Plaintiff
established that he had been deprived of his liberty, the law
required the Second Defendant to justify that deprivation. This
accords with the established approach to warrantless arrest and
detention, both in respect of onus and the applicable thresholds,
and
with the principle that, once liberty has been infringed, the State
must substantively justify the detention at each stage.
[28]
On the merits, the Court applied settled
consequences to pleaded and
proved facts. First, where an arrest is unlawful, the ensuing
detention is likewise unlawful unless
a new, independent lawful basis
supervenes. Second, even after a lawful arrest, detention is not
automatic. It is a distinct interference
with the right in s 12(1)
and requires an evaluative discretion compatible with the
Constitution and the CPA. Short lived
processing or a same night
release on warning does not convert an otherwise unlawful detention
into a lawful one. This reflects
the Constitutional Court’s
approach in
Zealand
to the substantive lawfulness of detention
under s 12(1).
[29]
The Second Defendant’s submission
that s 50 of the CPA
renders SAPS reception a purely mechanical exercise cannot be
sustained. Section 50 sets out the
procedural requirements,
including that an arrested person must be brought to a police station
and then to court within the statutory
time limits. Those procedural
duties do not, however, extinguish the obligation to ensure that any
continued deprivation of liberty
remains lawful and reasonable by
constitutional standard. The administrative steps taken at reception
are therefore required to
comply with s 33, which demands
lawful, reasonable and procedurally fair administrative action, and
must also accord with
the liberty guarantee contained in s 12(1).
[30]
Nor do standing orders or rank limitations
absolve SAPS of the need
to apply mind.
Louw
reminds that liberty restrictive
steps are exceptional and not to be treated as routine. While
Sekhoto
clarifies the statutory source and sequencing of arrest powers,
nothing in it converts post arrest detention into a mere
formality.
[31]
The pleaded issues were unlawful arrest
and detention. The Second
Defendant placed the lawfulness of the detention in issue and led
evidence concerning SAPS reception
practices, standing orders, rank
limitations, and the s 72 release process. The Court’s
finding that detention was
treated mechanically and that no
evaluative discretion was exercised is a legal characterisation of
the evidence on matters squarely
within the issues as pleaded, not a
departure from the pleadings. This accords with
Slabbert
,
which confirms that a court must confine itself to the issues as
pleaded and that a Plaintiff may not plead one case and seek
to prove
another.
[32]
Finally,
De Klerk
does not assist the Second Defendant.
The point here does not turn on post first appearance
liability, but on the pre appearance
detention that followed an
unlawful arrest and on the distinct duty to apply a discretion when
receiving a person into custody.
To the extent
De Klerk
speaks to foreseeability and the continuity of harm, it underscores
that detention cannot be treated mechanically and that liability
turns on a fact sensitive application of principle, which is
precisely what the Court did.
[33]
JE
Mahlangu and Another v Minister of Police
(“Mahlangu”)
[29]
confirms, consistently with
Zealand
,
that the lawfulness of detention is an ongoing, independent inquiry
that the State must justify at each stage of custody. The
SCA
emphasised that police liability may arise where continued detention
is not substantively justified, and that causation and
wrongfulness
are to be assessed on the facts with due regard to constitutional
norms safeguarding personal liberty. Properly understood,
Mahlangu
supports
rather than undermines the approach adopted here; even where an
earlier step is in issue, SAPS bears responsibility to
ensure that
any subsequent deprivation of liberty is lawful and constitutionally
compliant and may not treat reception and processing
as mechanical.
[34]
Counsel also referred to
Van Zyl, Petrus and Steyn, Marianne
Desiree
(Gauteng Division, Pretoria, case no. 83856/15,
unreported) (“
Van Zyl”)
. Whatever persuasive value
that judgment may have, it neither binds this Court nor displaces the
controlling principles articulated
by the SCA in
Slabbert
and
by this Court’s application of
Fischer
. On the facts
before me, the issues of unlawful arrest and ensuing detention were
pleaded, the Second Defendant admitted detention
and pleaded
lawfulness, and the Court confined itself to the issues as pleaded,
applying settled legal consequences to proved facts.
To the extent
Van Zyl
is read as cautioning against courts deciding matters
beyond the pleadings, that principle is already honoured in the
present reasoning
and does not assist the Second Defendant.
Compelling
reason (s 17(1)(a)(ii))
[35]
Although
I am not persuaded that any ground shows reasonable prospects under s
17(1)(a)(i), there is now a conflict in first instance
authority
on the residual Schedule 1 limb in the NRTA context. The question is
recurring, of public importance, and has national
implications for
warrantless arrests informed by technology assisted speed
enforcement. I am therefore satisfied that this
constitutes a
compelling reason under s 17(1)(a)(ii) to permit appellate
clarification.
[30]
Judicial
economy
[36]
Granting limited leave on the single,
dispositive question promotes
judicial economy as it confines the appeal to the true controversy,
avoids unnecessary proliferation
of secondary issues lacking merit,
fosters uniformity of first instance practice, and provides
appellate guidance likely to
prevent piecemeal future litigation on
warrantless arrests for s 59(4)(b) speeding. Conversely, refusing
leave on the conflict
issue risks re litigation across the
Division and inconsistent application in the Lower Courts.
[37]
Judicial economy is a principle directed
at the efficient
administration of justice. It counsels courts to deploy scarce
adjudicative resources in a manner that promotes
finality, coherence
of doctrine, consistency of outcomes, and prompt resolution of the
real issues dividing the parties. Within
the leave to appeal
framework, it aligns with the statutory gatekeeping in s 17(1)
(reasonable prospects or compelling
reason), read with s 16(2)(a) and
s 17(1)(c), which together discourage piecemeal or academic appeals
and prioritise appeals that
will determinatively advance the
litigation and the law.
[38]
Applied here, limiting leave to the single,
dispositive conflict,
namely, the proper construction of the residual Schedule 1 limb in
the NRTA context, serves judicial economy
in at least four ways.
First, it focuses the appellate court on the true controversy that
warrants clarification and avoids the
proliferation of collateral
issues (Code Book status, discretion narratives, detention disputes)
which, on the facts
in casu
, cannot alter the outcome of the
arrest’s lawfulness. Second, it promotes uniformity in
first instance practice across
this Division (and, if necessary,
beyond) by securing a clear ratio on a recurring question with
national impact for warrantless
arrests in speed enforcement
matters. Third, it advances finality for the parties by confining the
appeal to an issue that,
once settled, will resolve downstream
disputes without inviting advisory opinions. Fourth, it reduces cost
and delay by streamlining
the record and submissions to the
determinative legal question, which accords with the “just and
prompt resolution”
objective reflected in s 17(1)(c).
[39]
Conversely, granting leave on every
ground urged would dilute
the appellate exercise, risk piecemeal adjudication, and invite
determinations that are either academic
(because dependent on a
contrary outcome to the Schedule 1 issue) or immaterial (because,
even if decided for the Applicants, they
would not displace the
threshold defect in the warrantless arrest). Judicial economy
therefore favours a targeted grant of leave,
not a general one.
[40]
The same considerations inform the
forum choice. A Full Court
of this Division is well placed to issue a coherent,
authoritative statement on the Schedule 1
question with the benefit
of a full record and full argument, while maintaining procedural
efficiency. Should further clarification
be required, the path to the
SCA remains open. This sequenced approach promotes doctrinal
development without unnecessary duplication.
[41]
Finally, the confined order also respects
the parties’ autonomy
and the trial record. It preserves the court’s findings on
issues where no reasonable prospects
are shown, avoids advisory
rulings, and ensures that the appellate court’s attention, and
the parties’ resources, are
directed to the single question
that genuinely warrants appellate clarification.
Conclusion
[42]
For completeness,
I record that all other grounds advanced by the
Applicants are rejected at the leave stage for want of reasonable
prospects and
for want of any compelling reason to hear them. In
particular, the ground concerning the discretion to arrest raised by
the First
Defendant fails because the jurisdictional facts were
absent; alternatively, on the record, the discretion was not properly
exercised.
Reference to
Egerer
is not determinative of the
reasoning. As to the detention ground raised by the Second Defendant,
detention is not automatic and
no discretion was applied in a
constitutionally compliant manner. Lastly, the court did not “read
in” a new case; rather
that legal consequences were applied to
pleaded and proved facts. In view of the dispositive conclusion on
jurisdictional facts,
it is unnecessary to decide any pleaded
objection regarding an arrest discretion challenge.
[43]
Therefore,
leave is confined to the proper construction and
application of the concluding category of Schedule 1 to the CPA
in relation
to a contravention of s 59(4)(b) of the NRTA. Any
ancillary questions arising directly from that determination,
including
the offence specific nature of the inquiry and the
bearing, if any, of administrative instruments such as the provincial
Code
Book and a “no admission of guilt” notation, may be
addressed by the Full Court only to the extent necessary to resolve
the Schedule 1 issue.
[44]
Granting
leave on this confined basis accords with s 17(1)(a)(ii).
I have reconsidered the record with the appropriate caution
at
the leave stage and am satisfied that there is a compelling reason to
permit appellate clarification in light of conflicting
first instance
judgments on the correct interpretation of the concluding Schedule 1
category in the NRTA context. The
question is recurring, raises an
important issue of law, and has practical implications for
warrantless arrests in speed enforcement
matters. To my mind,
the limited grant will provide needed clarity while avoiding a
proliferation of issues that lack reasonable
prospects.
[45]
In my view, a Full Court of this Division
is an appropriate forum to
resolve the identified conflict. The SCA remains available thereafter
should the matter warrant further
appeal. I therefore direct that the
appeal be heard by a Full Court.
Costs
[46]
The Plaintiff and First Defendant
sought that costs be costs in
the appeal. The Second Defendant sought costs on scale B, submitting
that the concession could have
been made earlier. I am not persuaded
that an elevated scale is justified. In my view, the concession was
responsibly made and
no prejudice is shown. Consequently, the fair
and appropriate order is that costs be costs in the appeal.
ORDER
[47]
The following order is made
:
The
following order is made
:
Leave
to appeal is granted to a Full Court of the Western Cape Division,
confined to the issues set out in paragraph [43] of this
judgment.
All
other grounds of appeal advanced by the Applicants are dismissed at
the leave stage.
The
costs of the applications for leave to appeal shall be costs in the
appeal.
ANDREWS
AJ
Acting
Judge of the High Court of South Africa,
Western
Cape Division, Cape Town
Appearances:
Counsel
for the 1
st
Applicant / 1
st
Defendant:
Advocate R Jaga (SC)
Advocate T Ruiters
Instructed
by State
Attorney:
Mr S Appalsamy
Counsel
for the 2
nd
Applicant / 2
nd
Defendant:
Advocate S Naidoo
Instructed
by State
Attorney:
Mr S Appalsamy
Counsel
for the Plaintiff / Respondent:
Advocate M Gwala (SC)
Instructed
by:
Zilwa Attorneys
c/o Finini Attorneys
This
judgment was handed down electronically by circulation to the
parties’ representatives by email.
[1]
Court
a
quo
judgment
at para 173:
‘
Order
In
the result, I grant the following orders:
1.
In respect of Claim A, judgment is granted in favour of the
Plaintiff for the agreed or proven damages in respect of his
unlawful
arrest and subsequent detention on 28 March 2019 from
between the time of 17h50 and 18h00 to 23h50, with costs including
the
cost of Counsel to be taxed on Scale B.
2.
The Second Defendant’s Special Plea is dismissed with
costs, including the cost of Counsel to be taxed on Scale B.
3.
In respect of Claim B, the Plaintiff’s claim for malicious
prosecution is dismissed with costs, including the cost of Counsel
to be taxed on Scale B
4.
The trial on quantum is
postponed sine die.’
[2]
Tshangela
v Minister of Police
(
31264/20171)
[2022] ZAGPPHC 719 (21 September 2022).
[3]
Act
10 of 2013.
[4]
See
also
Notshokovu
v S
(157/15)
[2016] ZASCA 112
(7 September 2016).
[5]
Mont
Chevaux Trust v Goosen
2014
JDR 2325 (LCC) para 6;
Adonisi
v Minister of Transport and Public Works: Western Cape
2021
(3) SA 1
(WCC) paras 15–16;
Four
Wheel Drive Accessory Distributors CC v Rattan NO
2019
(3) SA 451
(SCA) para 34;
Jacobs
v Beacon Island Share Block (Pty) Ltd
2016
(5) SA 557
(WCC) paras 8–12;
Zweni
v Minister of Law and Order
1993
(1) SA 523
(A) at 532I–533B;
S
v Western Areas Ltd
2005
(5) SA 214
(SCA) para 28;
Philani Ma Afrika
and Others v Mailula and thers
2010
(2) SA 573
(SCA) para 20.
[6]
Tansnat
Durban (Pty) Ltd v eThekwini Municipality
(D4178/2020)
[2021] ZAKZDHC 3 (8 February 2021) para 70.
[7]
Ramakatsa
and Others v African National Congress and Another
(724/2019)
[2021] ZASCA 31
(31 March 2021)
para
10.
[8]
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
2020
(5) SA 35
(SCA) para 2.
[9]
MEC
for Health, Eastern Cape v Mkhitha
(1221/15)
2016 ZASCA 176
(25 November 2016) para 16.
[10]
National
Road Traffic Act, 93 of 1996
.
[11]
Criminal
Procedure Act, 51 of 1977
.
[12]
Egerer
v Minister of Police and Others
(1679/2018)
ZAGPPHC 77 (1 February 2024).
[13]
De
Klerk v Minister of Police
2020
(1) SACR 1
(CC).
[14]
Ibid
at
para 26 – 27: ‘
[26]
On the issue whether the offence of contravention of section 61(1)
of the National Road Traffic Act 93 of 1996 (NRTA) falls
under
Schedule 1 of the CPA there is legal dispute. Adv. Mbhalati contends
that it does on the basis that section 89 of NRTA
makes provision
for a sentence without an option of a fine which a court can impose.
On the other hand Adv. Jacobs argues that
it does not. The starting
point is to have regard to the wording of section 89 of NRTA and
Schedule 1 of the CPA and to give
the correct interpretation. In
order to get the correct interpretation thereto, it is important to
have regard to well- established
interpretation principles which
call for a contextual and normative approach. Interpretation
principles can be summed up as follows-
[22.1]
The statutory provisions should always be interpreted
purposively;
[22.2]
The relevant statutory provision must be properly contextualised;
[22.3]
All statutes must be construed consistently with the Constitution
and where possible legislative provisions ought to be interpreted
to
preserve their constitutional validity and [22.4] When interpreting
legislation that implicates a fundamental right entrenched
in the
Bill of Rights, a court must read that particular statute through
the prism of the Constitution.
[27]
Schedule 1 lists various offences and then provides ‘any
offence, except the offence of escaping from lawful custody
in
circumstances other than the circumstances referred to immediately
hereunder, the punishment wherefor may be a period of imprisonment
exceeding six months without the option of a fine’.
Section
89 (4)(a) –(c ) of NRTA provides for penal jurisdictions for
the contravention of section 61 of NRTA by giving
discretion
to impose either a fine
or
different
imprisonment periods ranging from one year; three years up to nine
years. I am in agreement with the legal arguments
by Adv. Mbhalati
that contravening section 61 of NRTA falls under Schedule 1.
Applying purposive and contextual interpretation
to section 89 of
NRTA, it appears to me to give a sentencing court the discretion to
impose direction imprisonment. The mere
fact that in practice a fine
is often imposed does not detract from the discretion to impose
direct imprisonment. I reach this
interpretation on the basis of the
word “or” in the section 89. It follows that section 61
of NRTA falls within Schedule
1.’
[15]
Lethena
v Minister of Police
2024
(1) SACR 92
(GJ);
[2023] 4 All SA 185
(GJ) (16 August 2023) paras
110 - 114.
[16]
See
Minister
of Safety and Security v Sekhoto and Another
2011
(5) SA 367
(SCA) paras 28–30, 39–44;
Ahmed
v Minister of Home Affairs
2019
(1) SA 1
(CC) paras 44–46;
Skole Ondersteuningsentrum
NPC and Others v Minister of Social Development and Others
[2020]
4 All SA 285
(GP); The Constitution of the Republic of South
Africa, s 12(1), s 35(1), s 33, s 1(c),
s 2.
[17]
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A) at 818G–H.
[18]
Ibid
paras
39–44.
[19]
Mabona
& Another v Minister of Law and Order & Others
1988
(2) SA 654
(SE) at 658E–H.
[20]
Biyela
v Minister of Police
(1017/2020)
[2022] ZASCA 36; 2023 (1) SACR 235 (SCA) (1 April 2022) at
paragraphs 35–36.
[21]
See
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A) at 818G–H;
Minister
of Safety and Security v Sekhoto and Another
2011
(5) SA 367
(SCA) paras 28–30, 39–44.
[22]
Egerer
supra
– see fn 12 above for full citation.
[23]
Zealand
v Minister of Justice and Constitutional Development and Another
[2008] ZACC 3
;
2008
(2) SACR 1
(CC), paras 24–25.
[24]
Louw
v Minister of Safety and Security
2006
(2) SACR 178
(T), 185i–186e (liberty premium and caution
against routine arrest/detention).
[25]
Ibid
paras
28–30, 39–44.
[26]
De Klerk
supra
– see fn 13, paras 32–40 (causation and liability for
detention flowing from unlawful arrest).
[27]
Minister
of Safety & Security v Slabbert
(668/2008)
[2009]
ZASCA 163
(30
November 2009); reported as
2010
(2) SACR 474
(SCA)
.
[28]
Fischer
and Another v Ramahlele and Others
(203/2014)
[2014]
ZASCA 88
(4
June 2014); reported as
2014
(4) SA 614
(SCA)
;
[2014]
3 All SA 395
(SCA)
paras
13–14
.
[29]
JE
Mahlangu and Another v Minister of Police
(1393/2018)
[2020] ZASCA 44; [2020] 2 All SA 656 (SCA); 2020 (2) SACR 136 (SCA)
(21 April 2020)
[30]
See
Ramakatsa
(supra)
para 10;
Caratco
(supra)
para 2.