IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not reportable
CASE NUMBER:2678/2019
BUTIKI MACK MOLAO Plaintiff
And
THE MINISTER OF POLICE Defendant
Coram: Koraan AJ
Heard on: 12 March 2025 & 15 August 2025
Delivered: This judgment was handed down electronically, circulated to the
parties’ representatives via email, uploaded to CaseLines, and released to SAFLII.
The date and time for the handing down of the judgment are deemed to be on 27
March 2026 at 11h00.
Summary: Delict — Action for damages — Unlawful arrest, detention, and
search and seizure — Search without a warrant — Consent — Police acting on
crime intelligence regarding a suspect in military uniform terrorizing the
community. Plaintiff opened the door and dir ected the police to a firearm under
his bedding. Court finding that plaintiff provided informed consent, rendering the
search lawful under Section 22(a) of the Criminal Procedure Act 51 of 1977.
Arrest — Without a warrant — Lawfulness — Reasonable suspicion — Schedule
1 offence — Discovery of a firearm and ammunition marked with "SAPS" or "P".
Plaintiff was unable to produce a license or account for state-issued ammunition
at the time of arrest. Section 40(1)(b) of the Criminal Procedure Act — Possession
of such ammunition, providing reasonable suspicion of a Schedule 1 offence.
Detention — Lawfulness — Plaintiff detained for three days before being
released after a court appearance, where the state declined to prosecute. Court
finding the entire period of detention justified as the initial arrest was lawful and
based on reasonable grounds. Claims for damages dismissed with costs.
JUDGMENT
Koraan AJ
Introduction
[1] The plaintiff instituted an action against the Minister of Police for damages in
the amount of R800,000.00. The claim comprises R700,000.00 for alleged
unlawful arrest and detention, and R100,000.00 for alleged unlawful search and
seizure. While the defendant admits to the arrest and the length of the detention,
they contend that the actions of the South African Police Service (SAPS)
members were lawful and justified.
[2] There was no separation of liability and quantum in terms of Rule 33(4) of the
Uniform Rules of Court; accordingly, both liability and quantum were determined
conjointly.
Background facts
[3] On 16 January 2019, at approximately 05h40, SAPS members acting on
crime intelligence arrived at the plaintiff’s residence. The intelligence indicated
that a short, humble individual in military uniform was terrorizing the community
with a firearm. The plaintiff, a former member of the SANDF, was found at the
premises.
[4] A key dispute concerns the search of the plaintiff's bedroom. The defendant’s
version is that they identified themselves and requested permission to search for
a firearm. They contend that the plaintiff provided consent by being cooperative
and personally pointing out a 9mm pistol hidden under his pillow. Conversely,
the plaintiff denies that he gave consent, alleging that the police entered and
searched his private residence without his permission while pointing firearms at
him.
[5] Following the search, the firearm was found to be loaded with 14 rounds of
ammunition. Additionally, a military uniform was found on the premises. A
further point of contention is the nature of this ammunition. The arresting officers
testified that upo n inspection, the ammunition bore "SAPS" or "P" markings,
indicating it was state issued property. The plaintiff denied the unlawful
possession of state ammunition, asserting that the ammunition in his possession
was legally acquired.
[6] Following his arrest, the plaintiff was transported in a police van in view of
the public and school children, eventually being placed in a crowded, unhygienic
holding cell where he slept on the floor with limited privacy and inadequate food.
His detention continued until 18 January 2019, at which point he was released
after appearing in court because the state declined to prosecute.
Submissions by the parties
[7] The plaintiff relies on s107 of the Firearms Control Act 60 of 2000 (hereafter
the Firearms Control Act), arguing that if he failed to produce a license, the police
were duty bound to use the less intrusive method of seizing the firearm rather
than resorting to arrest.
[8] The defendant argues that the search was lawful because the plaintiff
cooperated voluntarily. Concerning the arrest, the defendant relies on s40(1)(b)
of the Criminal Procedure Act 51 of 1977 (hereafter the CPA), asserting that
finding ammunition marked "SAPS" established an independent and reasonable
suspicion of an offence for which the plaintiff lacked lawful authority.
Findings on the search
[9] The constitutional right to privacy must be carefully and rigorously protected.
Section 14 of the Constitution 1 provides the following safeguards against
unlawful search and seizure:
‘Everyone has the right to privacy, which includes the right not to have
1 Constitution of the Republic of South Africa, 1996 (hereafter the Constitution).
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.
[10] A search without a warrant is conducted in terms of the provisions of s 22
of the CPA, which provides:
‘22. Circumstances in which article may be seized without search warrant. A police
official may without a search warrant search any person or container or premises for
the purpose of seizing any article referred to in section 20-
(a)if the person concerned consents to the search for and the seizure of the article in
question, or if the person who may consent to the search of the container or premises
consents to such search and the seizure of the article in question; or
(b)if he on reasonable grounds believes-
(i) that a search warrant will be issued to him under paragraph (a) of section 21 (1) if
he applies for such warrant; and
(ii) that the delay in obtaining such warrant would defeat the object of the search.’
[11] The laws of general application that govern search and seizure must be
applied within the peculiar facts. Factual findings are therefore mandatory.
Undoubtedly, there is a dispute of fact in this matter.
[12] In Bonnet v Minister of Police2 the court postulated the following approach
when faced with conflicting versions:
‘Our law is replete with precedent on how such a dispute is to be resolved.
In Stellenbosch Farmers’ Winery Group Ltd and Another v Martell and Others supra at
para 5 referred to by Adv Mafoko, the following tools were provided for unravelling a
dispute of fact:
‘To come to a conclusion on the disputed issues a court must make findings on:
2 (504/2021) [2025] ZANWHC 109 (23 June 2025) at paragraphs 53-55.
(a) the credibility of the various factual witnesses;
(b) their reliability; and
(c) the probability or improbability of each party's version on each of the disputed
issues.
In light of the assessment of (a), (b) and (c), the court will then, as a final step, determine
whether the party burdened with the onus of proof has succeeded in discharging it. The
hard case, which will doubtless be a rare one, occurs when a court's credibility findings
compel it in one direction and its evaluation of the general probabilities in another. The
more convincing the former, the less convincing will be the latter. But when all factors
are equipoised, probabilities prevail.
In National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (ECD) at
440D-441A, the following was posited:
‘It seems to me, with respect, that in any civil case, as in any criminal case, the onus
can ordinarily only be discharged by adducing credible evidence to support the case of
the party on whom the onus rests. In a civil case the onus is obviously not as he avy as
it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the
present case, and where there are two mutually destructive stories, he can only succeed
if he satisfies the court on a preponderance of probabilities that hi s version is true and
accurate and therefore acceptable, and that the other version advanced by the defendant
is therefore false or mistaken and falls to be rejected. In deciding whether that evidence
is true or not the court will weigh up and test the pla intiff's allegations against the
general probabilities. The estimate of the credibility of a witness will therefore be
inextricably bound up with a consideration of the probabilities of the case. If the balance
of probabilities favours the plaintiff, then the court will accept his version as being
probably true. If however, the probabilities are evenly balanced in the sense that they
probably true. If however, the probabilities are evenly balanced in the sense that they
do not favour the plaintiff's case any more than they do the defendant's, the plaintiff can
only succeed if the court nevertheless believes him and is satisfied that his evidence is
true and that the defendant's version is false.
This view seems to me to be in general accordance with the views expressed by Coetzee
J in Koster Ko-operatiewe Landboumaatskappy Bpk v Suid -Afrikaanse Spoorweë en
Hawens (supra) and African Eagle Assurance Co Ltd v Cainer (supra). I would merely
stress however that when in such circumstances one talks about a plaintiff having
discharged the onus which rested upon him on a balance of probabilities one really
means that the court is satisfied on a balance of probabilities that he was telling the truth
and that his version was therefore acceptable. It does not seem to me to be desirable for
a court first to consider the question of credibility of the witnesses as the trial judge did
in the present case, and then, having concluded that enquiry, to conside r the
probabilities of the case, as though the two aspects constitute separate fields of
enquiry. In fact, as l have pointed out, it is only where a consideration of the
probabilities fails to indicate where the truth probably lies, that recourse is had to an
estimate of relative credibility apart from the probabilities.”
[13] I align myself with the technique outlined in our law, which requires an
inquiry into the credibility, reliability, and inherent probabilities of witnesses.
Regarding the search, I find the defendant’s version to be more probable. The
plaintiff’s status as a former SANDF member makes it more likely that he would
cooperate with identified officers. Furthermore, the plaintiff’s own testimony
revealed that he opened the door for the police and specifically directed them to
the location of the firearm concealed under his bedding. These are not the actions
of a person who objected to or resisted the search.
[14] The plaintiff alleged that the police entered while pointing firearms at him,
which he contends vitiated any consent. I reject this version as improbable for the
reasons stated above. Even accepting that the officers were armed, the mere
presence of armed officers does not, without more, negate consent. What is
required is that the consent be voluntary, in the sense that it was not the product
of physical compulsion or an unlawful threat. On the facts, I have found that the
plaintiff cooperated, opened the door, and personally indicated the location of the
firearm there is no basis to conclude that his conduct was coerced rather than
voluntary. I am accordingly satisfied that the plaintiff gave actual and voluntary
consent within the meaning of s 22(a) of the CPA, rendering the search and
consent within the meaning of s 22(a) of the CPA, rendering the search and
seizure lawful. It is therefore unnecessary to consider whether the requirements
of s 22(b) were also met.
[15] Regarding the ammunition, the court specifically finds that the recovered
ammunition bore "SAPS" or "P" markings. It is highly unlikely that the police
would fabricate the presence of state marked ammunition during a legitimate
intelligence led operation. This finding is a significant fact that distinguishes this
case from a mere failure to produce a firearm licence.
Finding on arrest
[16] It is trite that the Bill of Rights guarantees the right of security and freedom
of the person, which includes the right ‘not to be deprived of freedom arbitrarily
or without just cause’.3 . As explained by Rabie CJ in the Minister of Law and
Order v Hurley4:
“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.”
[17] It has been established that an arrest is prima facie unlawful, and the burden
of proving the lawfulness of the arrest rests with the defendant. As a result, the
onus fell on the defendant to prove, on a balance of probabilities, the lawfulness
of the arrest and the subsequent detention of the plaintiff. The authority to arrest
without a warrant under s 40(1)(b) of the CPA applies only to offences outlined
in Schedule 1, which generally involve more serious crimes in our law. The
plaintiff was ar rested on a charge of unlawful possession of a firearm and
ammunition.
[18] To justify the arrest, the defendant must establish the jurisdictional facts as
3 See s12(1), s1(a) and 7(1) of the Constitution.
4 1986 (3) SA 568 (A) at 589E-F.
outlined in Duncan v Minister of Law and Order5. In sum, for an arrest under
s40(1)(b) to be lawful, the arresting officer must be a peace officer, must
reasonably suspect the person of having committed a Schedule 1 offence, and
these facts must exist at the time of the arrest. 6 The officer’s suspicion must be
objectively reasonable and based on information available at the time of the
arrest.
[19] What is central to these jurisdictional requirements is whether the suspicion
was based on reasonable grounds. Our law is rich in judicial precedent that
consistently affirms that reasonable suspicion must rest on objective facts, not on
mere conjecture, intuition, or hunch. In Mabona and Another v Minister of Law
and Order and Others7, the court explained that a reasonable suspicion exists if a
reasonable person, with the same information possessed by the arrestor, would
have suspected that the suspect had committed a Schedule 1 offence. Similarly,
in Duncan, the court emphasized that the existence of reasonable suspicion is a
factual question and must be present at the time of arrest. The suspicion must be
formed on credible and reliable information, considering the circumstances as a
whole. These authorities confirm that reasonable suspicion is an objective one,
grounded in factual information available to the arresting officer at the time of
the arrest.
[20] In Biyela v Minister of Police 8 the test for a reasonable suspicion was stated
as follows:
5 1986 (2) SA 805 (A) at 818 G-H.
6 Minister of Safety and Security v Sekhoto and Antoher (131/10) [2010] ZASCA 141; 2011 (1) SACR
315 (SCA) ; [2011] 2 All SA 157 (SCA); 2011 (5) SA 367 (SCA) (19 November 2010) (hereafter
Sekhoto) paragraphs 28-38.
7 1988 (2) SA 654 (SE) at 658 E-H.
8 [2018] ZASCA 128 at paragraph 14.
“The test for the existence of a reasonable suspicion is objective. It is not sufficient for
a police officer to allege that he entertained a suspicion; there must be facts from which
a reasonable man could conclude that there was a suspicion. The information must not
be vague or indefinite, nor should it amount to a mere rumour or gossip or be based on
speculation or conjecture. The arrestor must act on a suspicion that would be shared by
a reasonable man placed in the position of the arrestor.”
[21] The plaintiff argues that his arrest was unreasonable, given the
circumstances, as he had a valid licence and was not given an opportunity to
present it. He also contends that the alleged offence, unlawful possession of a
firearm and ammunition, does not qualify as a Schedule 1 offence. According to
the plaintiff, the p olice officer should have used discretion to seize the firearm
and ammunition instead of making an arrest.
[22] In assessing the defendant’s evidence, it is clear that the police officers
acted on the intelligence they received. When evaluating their combined
evidence, I find no material contradictions that impact the likelihood of their
individual accounts. This does not mean their evidence was perfect. According to
the plaintiff’s own tes timony, the police officers asked him twice if he had a
licence. If he indeed had a licence, the question remains why he did not produce
it. Therefore, it is reasonable to conclude that the suspicion the plaintiff did not
have a licence was justified under the circumstances. The plaintiff was arrested
for unlawfully possessing an unlicensed firearm and ammunition.
[23] The plaintiff’s submissions regarding the questions of law as it relates to the
firearm and ammunition, and the corresponding Schedule of the CPA that makes
a warrantless arrest permissible are misplaced. In the S.T.T and Others v Minister
of Police9 the court addressed these questions as follows:
of Police9 the court addressed these questions as follows:
9 (A2023/114372) [2024] ZAGPJHC 1180 (20 November 2024) paragraphs 7 -12.
“[7] The Appellants were arrested under section 40(1)(b) of the Criminal Procedure
Act 51 of 1977 (CPA) for possession of unlicensed firearms and ammunition. This
section provides that a peace officer may arrest any person without a warrant of arrest
‘whom he reasonably suspects of having committed an offence referred to in Schedule
1, other than the offence of escaping from lawful custody’.
[8] Schedule 1 includes ‘any offence…. The punishment wherefor may be a period of
imprisonment exceeding six months without the option of a fine’.
[9] Section 3(1) of the Firearms Control Act 60 of 2000 (the Firearms Control Act)
provides –
No person may possess a firearm unless he or she holds a licence, permit or
authorisation issued in terms of this Act for that firearm.
[10] Section 90 of the Firearms Control Act provides –
No person may possess any ammunition unless he or she-
(a) holds a licence in respect of a firearm capable of discharging that
ammunition;
(b) holds a permit to possess ammunition;
[11] Section 121 read with Schedule 4 to the Firearms Control Act provides that the
maximum penalty for a person convicted of contravening section 3 or section 90 of the
Firearms Control Act is fifteen years without the option of a fine.
[12] The offence is thus an offence as provided for in Schedule 1 of the CPA.”
(Footnotes omitted)
[24] The plaintiff contended that s 107 of the Firearm Controls Act was a remedy
that could have been used to circumvent the intrusive nature of an arrest. It reads
as follows:
“107. Duty to comply with the request of a police official or authorised person
(1) Any person who carries with him or her a firearm must at the request of a police
official or any person authorised by the Registrar produce the licence, permit or
authorisation, as the case may be, in respect of such firearm for inspection.
(2) A person referred to in subsection (1) must—
(a) at the request and to the satisfaction of a police official or any person authorised by
(a) at the request and to the satisfaction of a police official or any person authorised by
the Registrar, identify himself or herself forthwith; and
(b) at the request of a police official or any person authorised by the Registrar, produce
such firearm for inspection.
(3) If a person fails to comply with subsection (1) or (2), the police official or authorised
person may seize the firearm without a warrant and keep the firearm in custody until
the licence, permit or authorisation is produced or the firearm is disposed of in terms of
this Act.
(4) A police official or an authorised person, when exercising a power in terms
of subsection (1) or (2) must—
(a) identify himself or herself to the person referred to in subsection (1); and
(b) produce his or her appointment certificate or authorisation.”
[25] In my view, the critical enquiry is whether the peace officer held a reasonable
suspicion that the suspect had committed a Schedule 1 offence, and I find that
this requirement was satisfied.
[26] It remains to consider whether, even where the jurisdictional facts under s
40(1)(b) are established, the arresting officers exercised their discretion to arrest
lawfully. In Sekhoto, the Supreme Court of Appeal confirmed that once the
jurisdictional facts are present, a peace officer has a discretion whether to arrest,
and that discretion must be exercised in good faith and must not be arbitrary. The
court must therefore be satisfied that the officers did not act with an improper
motive or in bad faith. In the present matter, the officers acted pursuant to credible
crime intelligence, arrived at the premises in the early hours of the morning, and
upon discovering an unlicensed firearm loaded with state marked ammunition,
formed an objectively reasonable suspicion of a serious offence. There is no
suggestion in the evidence that the arrest was motivated by malice, personal
animosity, or any improper purpose. I am satisfied that the discretion to arrest was
exercised lawfully and in good faith, and that the arrest accordingly complies with
the full requirements set out in Sekhoto.
Conclusion
[27] The defendant has met the burden of proving that the search, arrest, and
detention were justified. The plaintiff’s possession of state marked ammunition
provided reasonable suspicion of a Schedule 1 offence, justifying the deprivation
of his liberty.
[28] In addition to the lawfulness of the arrest, the court is satisfied that the
duration of the plaintiff’s detention did not independently violate his
constitutional rights. Section 50(1) of the CPA requires that an arrested person be
brought before a court as soon as reasonably possible and, where a court does not
sit on the day of arrest or the following day, not later than the first court day
thereafter. The plaintiff was arrested on 16 January 2019 and appeared in court
on 18 January 2019, a period of approximately three days. The intervening day,
17 January 2019, fell within the period ordinarily attributable to court availability.
No evidence was led to suggest that the plaintiff was held beyond the first
available court sitting. The detention was accordingly lawful.
Costs
[29] The general rule is that the costs follow the event. I find no reason to deviate
from this rule. The defendant requested that a punitive cost order be imposed at
the attorney and client scale, including counsel's costs on scale C. I find no
grounds to impose a punitive cost order.
Order
[30] Resultantly, the following order is made:
1. The plaintiff’s claim is dismissed with costs.
2. The plaintiff is ordered to pay the defendant's costs of suit on a party and party
Scale A.
-
________________________
R KORAAN
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Appearances:
Counsel for the Plaintiff: Advocate JF De Bruin
Attorney for Plaintiff: Molelekeg Tlhakanye Attorneys
92 Molopo Road
Mahikeng
Counsel for Defendant : Advocate Tshevhungwe
Attorney for Defendant : The State Attorney
1St Floor East Gallery
Mega City Shopping Complex
Mmabatho