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IN THE NORTH WEST HIGH COURT, MAHIKENG
CASE NO: CIV APP RC01/2024
In the matter between:
KEOAGILE MOSEKI
AND
MINISTER OF POLICE
PROVINCIAL COMMISSIONER OF
POLICE, NORTH WEST
DATE OF HEARING
DATE OF JUDGMENT
FOR THE APPELLANT
FOR THE RESPONDENT
Corum: HENDRICKS JP & MORGAN AJ
JUDGMENT
1
Appellant
1 st Respondent
2nd Respondent
20 February 2026
25 March 2026
Adv. Mothsane
No Appearance
NO
NO
NO
NO
Delivered: This judgment was handed down electronically by circulation
to the parties' legal representatives via email. The date and
time for hand-down is deemed to be 1 0h00 on 25 March
2026.
ORDER
Resultantly, the following order is made:
(i) The appeal against the refusal of default judgment is upheld.
(ii) The order of the Regional Magistrate in the court a quo is set
aside and is substituted by the following:
"(a) Default judgment is granted against the 1st and 2nd
defendants.
(b) The 1 st and 2nd defendants are ordered to pay an amount
of R200,000.00 as damages for the unlawful arrest and
detention of the plaintiff, jointly and severally, the one
paying the other to be absolved.
( c) The 1 st and 2nd respondents are ordered to pay interest on
the amount of R200,000.00 from the date of summons until
date of final payment at the applicable prescribe rate,
jointly and severally, the one paying the other to be
absolved."
(iii) There will be no order as to costs of the appeal
JUDGMENT
2
Summary
Unlawful arrest and detention - arrest without a warrant of arrest in
contravention of Stock Theft Act - default judgment - appeal against the
judgment of the Regional Magistrate who refused to grant default
judgment in favor of the appellant {plaintiff). Award of damages.
HENDRICKS JP
[1] The appellant issued summons out of the Regional Court for the
Regional Division of the North West Province, held at Madikwe, for
unlawful arrest and detention for the period 13 December 2021 to
17 December 2021 {five (5) days) claiming R400,000.O0 as
damages. Although a notice to defend the action was filed, no plea
was filed. The defendants were therefore ipso facto barred and the
matter was set down for default judgment. An affidavit with regard to
the damages suffered was served and filed. The Regional
Magistrate directed that oral evidence be presented in terms of Rule
12 {7) of the Magistrate Court Rules 1. Evidence of the appellant as
plaintiff was heard on 11 March 2023 and judgment was reserved.
On 18 March 2023 the judgment was handed down in terms of which
1 Rule 12 (7) of the Magistrate Court Rules states:
(7) The registrar or clerk of the court may refer to the court any request for judgment and the court may
thereup on-
(a) if a default judgment be sought, call upon the plaintiff to produce such evidence either in writing
or oral in support of his or her claim as it may deem necessary;
(b) if a judgment by consent be sought, call upon the pla intiff to produce evidence to satisfy the court
that the consent has been signed by the defendant and is a consent to the judgment sought;
(c) give judgment in terms of plaintiff's request or for so much of the claim as has been established
to its satisfaction;
(d) give judgment in terms of defendant's consent;
{e) refuse judgment; or
{f) make such other order as it may deem fit.
(7 A) When the registrar or clerk of the court refers a request for judgment to the court, it shall be
recorded, dated and signed by the registrar or clerk of the court on the cover of the court file.
3
default judgement was refused. This appeal is against this order and
judgment of the Regional Magistrate.
[2] The evidence presented by the appellant as plaintiff can be
succinctly _summarized as follows:
On 13 December 2021 the appellant was asked by Karabo Moses
Mapaletsebe (Karabo) to transport a carcass of a cow to his
(Karabo's) parental homestead. He obliged. A transportation letter
was filed in and submitted to the appellant, who also endorsed it
with his details. The appellant, in the company of Karabo and
another man transported the carcass in a van belonging to the
appellants' wife. They were stopped en route by the police officers
and they were arrested. They first appeared in court on 17
December 2021 when they were admitted to bail. On 19 May 2022
the matter against the appellant was withdrawn by the State and
Karabo, who was accused 1 in the trial court, paid an admission of
guilt fine in the some of R4 000.00. The appellant alleged that his
arrest and subsequent detention was unlawful. Hence, summons to
that effect was issued against the defendants.
[3] Being placed under bar ipso facto, the defendants did not further
oppose the action and the appellant proceeded on an unopposed
basis and prayed for default judgment. The onus rests on the
defendants to prove that the arrest without a warrant was lawful2.
Section 40 (g) of the Criminal Procedure Act3 empowers a police
2 See: Selebogo v Minister of Police (1047 /14) (2017] ZANWHC 9 (1 o February 2017)
3 Act 51 of 1977
4
officer to effect an arrest without a warrant of arrest of any person
who is reasonably suspected of being or having been in unlawful
possession of stock or produce as defined in any law relating to the
theft of stock or produce4.
[4] It is quite apparent from the record that the Regional Magistrate took
issue with the fact that the appellant should have ensured that the
transportation letter (permit) is filled in correctly and that it should
have been signed by a person with the necessary authority that
grants permission that the carcass be transported. Whilst it is
permissible in terms of section 40 (g) read with section 9 (2) of the
Stock Theft Act5 that an arrest may be effected without a warrant of
arrest when a police officer stop a motor vehicle and find that stock
(i.e. cow carcass) is transported suspected of being stolen, each
case must be decided on its own merits. The fact that stock is
transported should not automatically lead to the arrest of a person
transporting the stock and therefore imply that the police officer does
not have to exercise a discretion whether to effect the arrest or not.
This discretion is not eroded simply because the aforementioned
acts empowers an a arrest without a warrant of arrest.
[5] The uncontested and uncontroverted evidence of the appellant was
that the cow carcass belongs to Karabo, who was accused number
1 in the criminal trial. Karabo was arrested with the appellant and he
later on admitted guilt by paying an admission of guilt fine. There is
4 The Minister of Safety and Security v Sekhotho and Another 2011 (1) SACR 315 (SCA).
s Act 57 of 1959.
5
no onus on the appellant to prove his case. The onus remained on
the State to prove its case against the appellant6. Absent any
evidence of the lawfulness of the arrest the onus on the State is not
discharged. The Regional Magistrate quite correctly stated that in
terms of section 9 (2) of the Stock Theft Act, the arrestor must
suspect that the stock in the motor vehicle is stolen and may effect
an arrest without a warrant.
[6] Furthermore, that the word "may" gives the arrestor an option
whether to exercise the discretion to arrest or not. However, the
Regional Magistrate than concluded '/ can find no evidence that the
discretion was exercised unreasonably;' and further 'Plaintiff
[appellant] should blame himself for failing to exercise due diligence
in this matter. He allowed himself to be misled by Mr. Mapaletse. '
This is what due respect to the Regional Magistrate a misdirection.
At first there was no evidence led by the respondents that a
6 Minister of Law and Order v Hurley and Another 1986 (3) SA 568 (A) at 569 E-F.
See also:
• Mhaga v Minister of Safety and Security [2001] 2 ALL SA 534 (TK);
• Manalaza v MEC for Safety and Security Eastern Cape (2001] 3 ALL SA 255 (TK);
• Ralekwa v Minister of Safety and Security 2004 (1) SACR 131 (TPD) paragraph (9) at 124 H;
• C F Cete v Minister of Safety and Security (2007] 3 ALL SA 365(0);
• Zealand v Minister of Justice and Constitutional Development 2008 (2) SACR 1 (CC) paragraph
[24) at 11;
• De Koker v Minister of Safety and Security 2010 (2) SACR 595 (KZD) paragraph [24] at 600 H;
• Minister of Safety and Security v Sekhato 2011 (1) SACR 315 (SCA) paragraph [7] at 321 C;
• Botha v Minister of Safety and Security and others and January v Minister of Safety and Secu rity
and Others 2012 (1) SACR 305 (ECP) paragraph (29) at 316 C to D;
• Minister of Safety and Security v Swart 2012 (2) SACR 226 (SCA) paragraph [19] at 232 B to C;
• Minister of Safety and Security v Ndlovu 2013 (1) SACR 339 (SCA) paragraph [9] and [1 OJ at 342
H to343 B;
• Minister of Police v Du Plessis 2014 (1) SACR 217 (SCA) paragraphs [13] and [16] at 342 H to J;
• Botha v Minister of Police 2014 (2) SACR 601 (GP) paragraph [30] at 608 D;
• Van Heerden v Ministe r van Veiligheid en Sekuriteit 2014 (2) SASV 346 (NCK) paragraph ( 124] at
374 F;
• Mawu v Minister of Police 2015 (2) SACR 14 (WCC) paragraph [24] at 21 B to F; and
• Scheepers v Minister of Safety and Secur ity 2015 (1) SACR 284 (ECG) paragraph [2] at 287 C.
6
discretion was exercised by the arresting police officer, whether to
arrest or not. Secondly, the Regional Magistrate placed an onus on
the appellant (plaintiff) by stating that he should blame himself for
failing to exercise due diligence in this matter with regard to the
transportation letter (permit).
[7] The Regional Magistrate should have found that absent any
evidence that the arresting police officer exercised his discretion to
arrest, the State did not discharge the onus on it, and consequently
the arrest was unlawful7. Furthermore, there is also no evidence
presented that the subsequent detention of the appellant was lawful.
[8] The appellant claims an amount of R400,000.00 as damages for
unlawful arrest and detention. In the founding affidavit filed in the
court a quo with regard to damages, the appellant state:-
"7.
I was detained with other inmates unknown to me in the police cells
and there were no beds to sleep on, as the lights were on the whole
night, I could not sleep. I was even afraid to sleep as most prisoners
steal new arrivals belongings. At the Police Station, as an awaiting
prisoner, the situation became worse, the gang members were fighting
and I was a/so asked to help otherwise I would be assaulted and there
was nowhere to run to. I was bullied and forced to join gangsters, and
I was afraid to report those incidents to the police as I was warned that
I should not report or I will be killed. I was beaten and assaulted on
several occasions for no apparent reason, my food was also taken by
7 See: Min ister of Law and Order and Othe rs v Hurley and Anoth er 1986 (3) SA 568 (A) at page 589 E-F.
7
other inmates and sometimes I would sleep without eating anything. I
confirm that I was traumatised as a result of my unlawful arrest and
detention as I did not see my family. Due to lack of finance, I could not
go to a private specialist to have a report as evidence of what I went
through during my detention.
8.
8. 1 I suffered Contumelia, inhuman treatment and emotional shock,
8.2 My rights to liberty and freedom, trauma or good name, privacy,
dignity, bodily and psychological integrity and environment which
is detrimental to my health or well-being was also infringed.
9.
The members of SAPS arrested me in public and after my release,
community started to view me as a criminal, as a result my dignity was
impaired. I felt humiliated by utterances from other quarters in the
community that I cannot be trusted any longer as I was perceived
criminal."
[9] Reliance was placed on case of Motlhadile vs Minister of Police8
in which it was found that an amount of R200,000.00 would be fair
and reasonable for unlawful arrest and detention spanning over four
(4} days. I am of the view that following Motlhadile, supra, an
amount of R200,000.00 will be fair and reasonable.
[1 0] Insofar as the costs of the appeal are concerned, the respondents
did not oppose the appeal. Therefore, it will be fair and just to make
no order as to the costs of the appeal.
8 2023 (2) SACR 274 {SCA).
8
Order
[11] Resultantly, the following order is made:
(i) The appeal against the refusal of default judgment is upheld.
(ii) The order of the Regional Magistrate in the court a quo is set
aside and is substituted by the following:
"(a) Default judgment is granted against the 1st and 2nd
defendants.
(b) The 1 st and 2nd defendants are ordered to pay an amount
of R200,000.00 as damages for the unlawful arrest and
detention of the plaintiff, jointly and severally, the one
paying the other to be absolved.
(c) The 1st and 2nd respondents are ordered to pay interest on
the amount of R200,000.00 from the date of summons until
date of final payment at the applicable prescribe rate,
jointly and severally, the one paying the other to be
absolved."
(iii) There will be no order as to costs of the appeal
R D HENDRICKS
JUDGE PRESIDENT OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG
9
I agree
ACTING JUDGE OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG
10