THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 843/2024

In the matter between:
MAKOFANE WILLIAM MOHLALA APPLICANT
and
MEC FOR TRANSPORT, LIMPOPO FIRST RESPONDENT
MINISTER OF POLICE SECOND RESPONDENT
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS THIRD RESPONDENT

Neutral citation: Makofane William Mohlala v MEC for Transport, Limpopo and
Others (843/2024) [2026] ZASCA 55 (17 April 2026)
Coram: MBATHA, UNTERHALTER and BAARTMAN JJA and MAMOSEBO and
GOVINDJEE AJJA
Govindjee AJA (first judgment): [01] to [31]
Unterhalter JA (dissent): [32] to [51]
Heard: 6 March 2026
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, published on the Supreme Court of Appeal website,
and released to SAFLII. The date and time for hand -down is deemed to be 17 April
2026 at 11h00.
Summary: Special leave to appeal – delict – unlawful detention – failure to consider
or facilitate release on police bail in terms of s 59 of the Criminal Procedure Act 51 of
1977 – deprivation of liberty prima facie unlawful – Minister bearing onus to justify
continued detention – liability established – quantum of general damages determined
on appeal – costs adjusted to reflect partial success.

2


ORDER

On appeal from: Limpopo Division of the High Court, Polokwane (Mashamba AJ and
Ngobeni AJ, sitting as court of appeal):
1 The applicant is granted special leave to appeal against the order of the high court,
limited to the claim for unlawful detention.
2 The costs of the application for special leave to appeal shall be costs in the appeal.
3 The appeal against the order of the high court is upheld.
4 The order of the high court is set aside and substituted with the following:
‘(i) The appeal against the dismissal of the appellant’s claim for unlawful detention
is upheld.
(ii) The order of the magistrates’ court is set aside and replaced with the following:
(a) The second defendant is liable for the unlawful detention of the plaintiff
at Dennilton Police Station between 1 April 2017 and 3 April 2017.
(b) The second defendant is ordered to pay the plaintiff the sum of R80 000
as general damages, together with interest thereon at the legal rate from 25
April 2023 to the date of final payment.
(c) The second defendant is ordered to pay fifty (50) percent of the plaintiff’s
costs.
(iii) The second respondent is ordered to pay fifty (50) percent of the costs of the
appeal, including the costs of counsel on scale B.’
5 The second respondent is ordered to pay fifty (50) percent of the applicant’s costs
of the appeal in this Court.

3


JUDGMENT

Govindjee AJA (Mbatha and Baartman JJA and Mamosebo AJA concurring):

Background
[1] This is an application for special leave to appeal against an order of the
Limpopo Division of the High Court, Polokwane, sitting as a court of appeal (the high
court). The application was referred for oral argument in terms of s 17(2)( d) of the
Superior Courts Act 10 of 2013. The principal substantive issue concerns the liability
of the second respondent, the Minister of Police (the Minister), for the alleged unlawful
detention of the applicant, Makofane William Mohlala ( Mr Mohlala), prior to his first
court appearance.1

[2] It is common cause that Mr Mohlala was lawfully arrested on Saturday, 1 April
2017, in terms of s 40(1)(b) of the Criminal Procedure Act 51 of 1977 (the Act). He had
been stopped by traffic officers at a roadblock earlier that afternoon. A breathalyser
test indicated a concentration of alcohol above the legal limit, and he was arrested on
suspicion of driving under the influence of alcohol. When he was taken to Philadelphia
Hospital for a blood sample to be drawn, Mr Mohlala refused to permit the attending
doctor to draw blood on the basis that he was allergic to needles . He was taken to
Dennilton Police Station, a docket was opened and he was detained on charges of
driving under the influence of alcohol and defeating the administration of justice. Mr
Mohlala was released on warning following his court appearance on 3 April 2017. The
charges were subsequently withdrawn.

The pleadings, evidence and judgments below
[3] Mr Mohlala pleaded that members of the South African Police Service (SAPS)
were ‘entitled and permitted by the Criminal Procedure Act’ to release him and merely
warn or notify him to appear in court on a date determined by them. The failure to
release him on that basis rendered his detention unlawful. Mr Mohlala accordingly

1 A second basis for seeking special leave, namely the high court’s dismissal of the appeal in relation

to damages for malicious prosecution, was not persisted with during argument. This concession was
properly made, as no case for special leave on that issue is foreshadowed on the papers.

4
claimed damages arising from the deprivation of his liberty and the consequences
flowing from his detention. The Minister pleaded a bare denial to these allegations.

[4] It is accepted that Mr Mohlala was detained pursuant to his arrest for a period
of approximately 48 hours, between 1 and 3 April 2017. Mr Mbonani, the traffic officer
who effected the arrest , testified that he had read Mr Mohlala his rights upon arrest.
He was, however, unable to testify as to what occurred at the police station after Mr
Mohlala was brought there and charged. His colleague on duty that day, Ms Mothiba,
likewise had no recollect ion of what transpired once Mr Mohlala accompanied Mr
Mbonani into the police station. These were the only two witnesses called on behalf of
the Minister. Mr Mohlala’s evidence that he was never informed that he could apply
for bail while in police custody remained unchallenged.

[5] The magistrate dismissed the claim for unlawful detention on the basis that
Mr Mohlala bore the burden of proving that his detention was unlawful. He had failed
to establish that a police officer of sufficient rank was available at the police station or
that such an officer had refused to exercise a discretion to release him. Nor was there
evidence that Mr Mohlala had requested the police officers on duty to consider bail.
Having regard to the provisions of the Act, the magistrate concluded that the traffic
officers who effected the arrest had no authority to release Mr Mohlala. The claim for
unlawful detention was accordingly dismissed.

[6] The high court upheld the magistrate’s conclusions. The reasoning of the high
court reflects the view that the burden rested on Mr Mohlala to prove that a suitably
ranked police officer was available and that he had applied for, and been refused,
police bail:
‘[27] The learned Regional Magistrate found that section 59 of the Criminal Procedure Act,
regulates the release of a suspect before the first appearance in court and grants discretionary

powers to a commissioned police officer above the rank of a warrant offic er to cause the
release of a suspect after consultation with the investigating officer. The appellant did not
prove that a police officer with the required rank was available at the police station or had
refused to exercise his or her discretional po wers to grant police bail. The learned Regional
Magistrate was not wrong to find that the appellant carried the burden of proof that his further
detention was indeed unlawful.

5
[28] . . . in terms of section 59 of the Criminal Procedure Act, the grant or refusal of the
police bail is exclusively a matter to be decided by an authorised police officer after
consultation with the investigating officer. The appellant did not prove that he applied for police
bail to the authorised … police officer and that the said police officer refused to grant police
bail. The evidence which has been given by the appellant that other 2 (two) suspects arrested
with him were given police bail does not help the court to conclude that the discretion in terms
of section 59 of the Act was not properly exercised. The appellant did not prove that he applied
for bail from an authorised police officer and that such application was refused, without just
cause. The court finds no misdirection on the part of the learned Regional Magistrate when
he found that the detention was lawful and the claim for unlawful detention was to be
dismissed.’ (sic)

Special leave
[7] It is trite that the test for the grant of special leave is more stringent than for
ordinary leave. This Court has explained the position as follows:
‘An applicant for special leave to appeal must show, in addition to the ordinary requirement of
reasonable prospects of success, that there are special circumstances which merit a further
appeal to this court. This may arise when in the opinion of this cou rt the appeal raises a
substantial point of law, or where the matter is of very great importance to the parties or of
great public importance, or where the prospects of success are so strong that the refusal of
leave to appeal would probably result in a manifest denial of justice.’2

[8] The present matter raises a substantial point of law concerning the proper
allocation of the burden of proof in claims for unlawful detention following a lawful
arrest. Both the magistrate and the high court approached the matter on the basis that
Mr Mohlala bore the burden of proving that a police officer of the requisite rank was

Mr Mohlala bore the burden of proving that a police officer of the requisite rank was
available and that he had applied for, and been refused, police bail. Whether that
approach is correct, having regard to the established principle that a deprivation of
liberty is prima facie unlawful and must be justified by the detaining authority, raises
an issue of legal principle of sufficient importance to warrant the attention of this Court.
The apparent misdirection on the allocation of that burden also gives rise to stron g
prospects of success on appeal. In the circumstances, special leave to appeal should
be granted, limited to the issue of Mr Mohlala’s claim for unlawful detention.


2 Van Wyk v S; Galela v S [2014] ZASCA 152; [2014] 4 All SA 708 (SCA); 2015 (1) SACR 584 (SCA)
para 21, citing Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA
555 (A) at 564I–565E.

6
Analysis
The statutory framework
[9] The Act provides that the effect of a lawful arrest is that the person arrested is
placed in lawful custody and may be detained until lawfully discharged or released. 3
That position is, however, subject to the provisions of the Act that permit the release
of a suspect from detention.4 It follows that a lawful arrest does not necessarily require
that an arrested person remain detained until the first court appearance. 5 In cases
involving relatively minor offences, the Act permits release on bail by the police before
an accused person’s first court appearance (police bail). 6 Section 59 provides in
relevant part:
‘Bail before first appearance of accused in lower court
(1)(a) An accused who is in custody in respect of any offence, other than an offence –
(i) referred to in Part II or Part III of Schedule 2;
…
may, before his or her first appearance in a lower court, be released on bail in respect of such
offence by any police official of or above the rank of non-commissioned officer, in consultation
with the police official charged with the investigation, if th e accused deposits at the police
station the sum of money determined by such police official.’

[10] The jurisdictional facts for the consideration of police bail are that the accused
is in custody in respect of an offence and that the offence is not listed in s 59(1) (a).
Once these conditions are present, the statutory process governing the possible
release of the detainee on police bail is engaged. In such circumstances the police
are required to ascertain whether the detainee wishes to have the possibility of release
on police bail considered.7


3 Section 39(3) of the Act.
4 Syce and Another v Minister of Police [2024] ZASCA 30; [2024] 2 All SA 662 (SCA); 2024 (2) SACR
1 (SCA) (Syce) para 42. See A van der Merwe (2009) Annual Survey 325 at 339.
5 Following arrest, the peace officer concerned is vested with a further discretion whether to detain the

arrestee or warn the person to attend court: Diljan v Minister of Police 2022 JDR 1759 (SCA); [2022]
ZASCA 103 (Diljan) para 9.
6 The effect of police bail is the same as ordinary bail: s 59(2) of the Act. See E Cameron ‘The Crisis of
criminal justice in South Africa’ (2020) 137 SALJ 32 at 59.
7 Syce fn 4 para 45. See also Setlhapelo v Minister of Police and Another [2015] ZAGPPHC 363
(Setlhapelo). ‘Despite this exposition of the principles, the court dismissed the plaintiff's claim because
he had not specifically relied upon the provisions of s 59 in his particulars of claim. In the light of Zealand
v Minister of Justice and Constitutional Development and Another 2008 (2) SACR 1 (CC); 2008 (4) SA
458; 2008 (6) BCLR 601 (CC); [2008] ZACC 3 para 24, the outcome appears erroneous.’

7
[11] This duty must be read together with s 50 of the Act, which regulates the
procedure following arrest. It provides that a person arrested without a warrant must
be brought to a police station as soon as possible. Once detained in this manner, the
arrestee m ust be informed of the right to institute bail proceedings ‘as soon as
reasonably possible’. 8 The purpose of this requirement is to enable the detained
person to exercise the right to apply for release on police bail even before the first
court appearance.9 A failure to inform a detainee of this right, a failure to consider the
possibility of release on police bail, or an unreasonable delay in that process may,
depending on the circumstances and in the absence of a lawful justification for
continued detention, render the continued detention unlawful.10 This reflects both the
substantive and procedural protections afforded to the right to personal liberty.

Application to the facts
[12] The statutory framework imposes obligations on police officials to consider the
justification for a person’s continued detention following arrest.11 Even where an arrest
is lawful, police officers must apply their minds to whether the detainee should remain
in custody. This necessarily includes consideration of whether detention is required at
all, and a failure to do so may render the ensuing detention unlawful.12

[13] These duties arise within the constitutional framework governing arrest and
detention. South African law places a high premium on the right to liberty. 13 The
constitutional right to freedom and security of the person affords both substantive and
procedural protection against deprivations of liberty. 14 The Bill of Rights also

8 Section 50(1)(a) and (b) of the Act.
9 Section 50(1)(c) of the Act contemplates the release of an arrested person prior to first court
appearance either because no charge is to be brought or because bail has been granted in terms of
s 59 or 59A. See Syce above fn 4 para 44.

s 59 or 59A. See Syce above fn 4 para 44.
10 Setlhapelo fn 7 para 38 quoted with approval in Syce fn 4 para 45. Also see P du Toit ‘Criminal
procedure’ (2025) 38 SACJ 314 at 317. Only a police officer of or above the rank of non-commissioned
officer is authorised, in consultation with the investigating officer, to release the detainee on police bail
upon payment of a sum determined by that official.
11 Botha v Minister of Safety and Security and Others; January v Minister of Safety and Security and
Others [2011] ZAECPEHC 12; 2012 (1) SACR 305 (ECP) para s 29–30, quoted with approval in
Mahlangu and Another v Minister of Police [2021] ZACC 10; 2021 (7) BCLR 698 (CC); 2021 (2) SACR
595 (CC) (Mahlangu) para 40.
12 Mvu v Minister of Safety and Security and Another [2009] ZAGPJHC 5; 2009 (2) SACR 291 (GSJ);
2009 (6) SA 82 (GSJ) para 10 cited with approval in Mahlangu fn 11 para 40.
13 Minister of Police and Another v Du Plessis [2013] ZASCA 119; 2014 (1) SACR 217 (SCA) para 15.
14 Section 12(1)(a) and (b) of the Constitution. See Bernstein and Others v Bester and Others NNO
[1996] ZACC 2; 1996 (4) BCLR 449; 1996 (2) SA 751 (CC) para 145. See also Malachi v Cape Dance
Academy International (Pty) Ltd and Others [2010] ZACC 13; 2010 (6) SA 1 (CC); 2010 (11) BCLR
1116 (CC) para 25. On the ambit of the prohibition against ‘detention without trial’, see Makana People’s
Centre v Minister of Health and Others [2023] ZACC 15; 2023 (8) BCLR 963 (CC); 2023 (5) SA 1 (CC)

8
guarantees that everyone who is arrested for allegedly committing an offence has the
right to be released from detention if the interests of justice permit, subject to
reasonable conditions. 15 The state is constitutionally obliged to respect, protect,
promote and fulfil these rights, which bind all arms of government and all organs of
state.16 This includes the duty on the police to ensure that a person is not deprived of
their freedom other than in accordance with a fair process. 17 These procedural
safeguards form part of the framework within which the lawfulness of a deprivation of
freedom falls to be assessed. Their observance is directly relevant to whether
continued detention is justified. In the absence of lawful justification, a failure to
observe them may render the continued detention unlawful.

[14] Mr Mohlala’s pleaded claim for damages was premised on the alleged violation
of various constitutional rights, including the limitation of his right to liberty and the
impairment of his dignity. His cause of action was based on his alleged unlawful
detention for a period of approximately 48 hours at Dennilton Police Station following
his arrest. The case he advanced, both on the pleadings and at trial, was that members
of the SAPS acted unlawfully by keeping him detained in circumstances where they
were entitled and permitted by the Act to release him on police bail. 18 The magistrate
framed the case accordingly before holding that Mr Mohlala bore the burden of proving
that his detention was unlawful, including that a police officer of the requisite rank was
available and had refused to exercise the discretion to release him.19

[15] That approach cannot be sustained. Properly analysed, the claim engages
delictual liability for an omission, namely a failure to act in circumstances where the
law imposes a duty to do so. The existence of that duty is informed by the statutory

(Makana People’s Centre) para 116. Zealand v Minister of Justice and Constitutional Development and

Another [2008] ZACC 3; 2008 (6) BCLR 601 (CC); 2008 (2) SACR 1 (CC); 2008 (4) SA 458 (CC)
(Zealand) para 33.
15 Section 35(1)(f), ss 10 and 12(1)(a) of the Constitution. See Mahlangu fn 11 paras 21 and 38.
16 Section 7(2) and s 8(1) of the Constitution. See Raduvha v Minister of Safety and Security and
Another [2016] ZACC 24; 2016 (10) BCLR 1326 (CC); 2016 (2) SACR 540 (CC) para 56.
17 Makana People’s Centre fn 14 para 115.
18 See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others [2004]
ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) para 27: ‘where a litigant relies upon a
statutory provision, it is not necessary to specify it, but it must be clear from the facts alleged that the
section is relevant and operative’. See also Saziwa and Others v Mhlontlo Local Municipality and Others
[2026] ZACC 10 paras 98–100: ‘it is incumbent upon an official [charged with legislative responsibilities]
to know the legislation applicable …, to consider and apply that legislation and to use it to do their job
to serve the people in their area of responsibility.’
19 The magistrate notes: ‘Secondly, the plaintiff alleged that his further detention was unlawful because
he was not granted bail or released on warning by the police before his first appearance in court.’

9
framework regulating police bail, read consistently with the constitutional rights to
freedom and dignity. The enquiry is thus whether, in light of the failure to consider and
effect release, the continued detention was justified.20 It is not whether the detainee
had a freestanding right to be released, but whether the continued detention was
justified in light of the statutory and constitutional framework governing continued
detention.

[16] I do not agree that the failure to comply with the statutory safeguards governing
police bail leaves the continued detention lawful. Mr Mohlala’s continued detention
constituted an interference with his liberty and was prima facie unlawful.21 The burden
rested on the Minister to justify the deprivation.22 In the context of a claim for delictual
damages, the position is as follows:23
‘[24] There is another, more important reason why this court should rule in the applicant’s
favour. The Constitution enshrines the right to freedom and security of the person, including
the right not to be deprived of freedom arbitrarily or without just cause, as well as the founding
value of freedom. Accordingly, it was sufficient in this case for the applicant simply to plead
that he was unlawfully detained. This he did. The respondents then bore the burden to justify
the deprivation of liberty, whatever form it may have taken.
[25] This is not something new in our law. It has long been firmly established in our common
law that every interference with physical liberty is prima facie unlawful. Thus, once the claimant
establishes that an interference has occurred, the burden falls upon the person causing that
interference to establish a ground of justification. In Minister van Wet en Orde v Matshoba, the
Supreme Court of Appeal again affirmed that principle, and then went on to consider exactly
what must be averred by an applicant c omplaining of unlawful detention. In the absence of

what must be averred by an applicant c omplaining of unlawful detention. In the absence of
any significant South African authority, Grosskopf JA found the law concerning the rei
vindicatio a useful analogy. The simple averment of the plaintiff’s ownership and the fact that
his or her property is held by the defendant was sufficient in such cases. This led that court to
conclude that, since the common -law right to personal freedom was far mor e fundamental

20 J Scott ‘Determining the wrongfulness in delict of a positive breach of a public duty’ (2017) TSAR 379
at 385 and 388 ; Unlawful arrest and detention are exceptional delicts imposing strict liability: see J
Neethling, JM Potgieter and A Roos Neethling on Personality Rights (LexisNexis) (2019) at 187.
21 Mahlangu fn 11 para 32.
22 Zealand fn 14 paras 24 and 25; Mahlangu fn 11 para 32. In Minister van Wet en Orde v Matshoba
[1990] 1 All SA 425 (A); 1990 (1) SA 280 (A) at 284H-I the following appears:
‘Hoewel hierdie passasies slegs verwys na ’n inhegtenisneming – dit was al wat daar in geskil was –
geld dieselfde beginsel klaarblyklik ook vir die aanhouding van n’ persoon.’ (Although these passages
refer only to arrest – the only issue in dispute – the same principle evidently applies to the detention of
a person. (Own translation)) See J Brickhill and K Hofmeyr ‘Constitutional law’ in Juta’s Quarterly
Review of South African Law (2008) (vol 1) para 2.3.1 and following.
23 Zealand fn 14; Also see Minister of Home Affairs v Rahim and Others [2016] ZACC 3; 2016 (3) SA
218 (CC); 2016 (6) BCLR 780 (CC) (Rahim) para 27.

10
than ownership, it must be sufficient for a plaintiff who is in detention simply to plead that he
or she is being held by the defendant. The onus of justifying the detention then rests on the
defendant. There can be no doubt that this reasoning applies with equal, if not greater, force
under the Constitution.’24

[17] As was the case in Syce,25 once the jurisdictional facts were present, the police
were obliged to ascertain whether Mr Mohlala wished to apply for police bail.
Mr Mohlala’s uncontested evidence was that he was never informed that he could
apply for bail while in police custody following his arrest, with the result that he did not
do so. It must be accepted that whatever rights were read to him by Mr Mbonani at the
time of arrest did not include any mention of the possibility of bail. By failing to inform
him of his right to institute bail proceedings, the police also failed to comply with the
procedure following arrest prescribed by s 50 of the Act. Nor was there any indication
that the possibility of his release on police bail was considered by SAPS members at
the police station, and the Minister led no evidence explaining why he was not released
in terms of s 59 of the Act.26

[18] In these circumstances, the burden rested on the Minister to justify the
continued detention, which he failed to do. In the absence of any explanation for the
continued detention, including the failure to comply with the statutory safeguards
governing possible release on police bail, the detention remained unjustified and
therefore unlawful. Delictual liability accordingly followed in respect of the damages
flowing from the unlawful deprivation of liberty. 27 Absent any compelling reason to
depart from the norm, the general principles of accountability require that the state be
held liable for damages arising from these failures. 28 The approach adopted by both
the magistrate and the high court, which shifted the onus onto Mr Mohlala, constituted

the magistrate and the high court, which shifted the onus onto Mr Mohlala, constituted
an error of law and cannot be sustained.29




24 Zealand fn 14 paras 24-25 (footnotes omitted).
25 Syce fn 4.
26 Syce fn 4 paras 47 and 51, fn 19 and fn 23: continued detention, at least where ss 59 and 59A of the
Act apply, is always subject to the exercise of a discretion.
27 See, generally, Rahim fn 23 para 20 and following.
28 Woji v Minister of Police [2014] ZASCA 108; [2015] 1 All SA 68 (SCA); 2015 (1) SACR 409 (SCA)
para 28 cited with approval in Mahlangu fn 11 para 38.
29 Mahlangu fn 11 para 46.

11
Quantum
[19] The determination of the appropriate award of damages ordinarily falls within
the domain of the trial court, which has the advantage of hearing the evidence and
assessing the circumstances first -hand. An appellate court may nevertheless
undertake that task where the relevant facts appear sufficiently from the record. 30 In
the present circumstances, this Court is in as good a position as the trial court to
determine an appropriate award, and it is appropriate to do so to bring finality to the
matter.31 Doing so entails the exercise of a true discretion, guided principally by the
particular facts and circumstances of the case.32

[20] The person whose liberty was wrongfully restrained may claim damages aimed
at providing personal satisfaction for injured feelings. Such damages are estimated ex
aequo et bono (in or according to equity and good conscience) in respect of the
personality infringement suffered in the circumstances, bearing in mind the high
premium our law places on personal liberty.33 The appropriate approach is as follows,
bearing in mind that awards should be fair but not extravagant, and that factors tending
to introduce a penal element are to be excluded:34
‘In the assessment of damages for unlawful arrest and detention, it is important to bear in mind
that the primary purpose is not to enrich the aggrieved party but to offer him or her some much
needed solatium for his or her injured feelings. It is therefore crucial that serious attempts be
made to ensure that the damages awarded are commensurate with the injury inflicted.
However, our courts should be astute to ensure that the awards they make for such infractions
reflect the importance of the right to personal liberty and the seriousness with which any
arbitrary deprivation of personal liberty is viewed in our law. I readily concede that it is
impossible to determine an award of damages for this kind of injuria with any kind of

impossible to determine an award of damages for this kind of injuria with any kind of
mathematical accuracy. Although it is always helpful to have regard to awards made in

30 Syce fn 4 para 53. Also see Diljan fn 5 para 13.
31 EF v Minister of Safety and Security [2018] ZASCA 96; 2018 (2) SACR 123 (SCA) para 32.
32 Minister of Safety and Security v Tyulu [2009] ZASCA 55; [2009] 4 All SA 38; 2009 (5) SA 85; 2009
(2) SACR 282 (SCA); (Tyulu) para 26.
33 Van der Nest NO v Minister of Police [2025] ZASCA 42; [2025] 2 All SA 655 (SCA); 2025 (5) SA 152
(SCA) (Van der Nest NO) para 27; Motladile v Minister of Police [2023] ZASCA 94; 2023 (2) SACR 274
(SCA) (Motladile) paras 17 and 22.
34 Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (6) BCLR 759 (CC); 1997 (3) SA 786
(CC) (Fose) paras 63 and 72; Tyulu fn 31 para 26; Minister of Safety and Security v Seymour [2006]
ZASCA 71; [2007] 1 All SA 558 (SCA); 2006 (6) SA 320 (SCA) ( Seymour) para 20; De Jongh v Du
Pisanie [2004] ZASCA 43; [2004] 2 All SA 565 (SCA); 2005 (5) SA 457 (SCA) para 60. Cf Wright v
Multilateral Vehicle Accident Fund (Corbett and Honey The Quantum of Damages in Bodily and Fatal
Injury Cases (1992) vol IV at E3-31) cited with approval in Road Accident Fund v Marunga [2003]
ZASCA 19; [2003] 2 All SA 148 (SCA); 2003 (5) SA 164 (SCA) paras 27 and 34; HB Klopper Damages
(LexisNexis) (2017) at 255 -9 at 259: the fact that compensation is paid using public money is a
mitigating consideration.

12
previous cases to serve as a guide, such an approach if slavishly followed can prove to be
treacherous. The correct approach is to have regard to all the facts of the particular case and
to determine the quantum of damages on such facts…’35 (Citations omitted.)

[21] In applying this approach, the court must have regard to a range of factors, as
explained in Motladile.36 These include the duration of the detention; the
circumstances under which the detention occurred, including the nature of the
deprivation and whether other personality and constitutional rights were infringed; the
conduct of those responsible for the det ention, including the presence or absence of
aggravating factors such as improper motive or malice, or mitigating factors such as
an apology or satisfactory explanation of the events; the age, status and standing of
the person detained and any publicity gi ven to the detention; and any contributory
action or inaction on the part of the person concerned.

[22] Against these considerations, it is necessary to consider the circumstances of
Mr Mohlala’s detention. The unlawful deprivation of liberty is itself a serious injury,
involving an infringement of fundamental constitutional rights, including the rights to
dignity and freedom and security of the person. 37 The evidence relating to the
conditions of detention was sparse and failed to address most of the factors identified
above, which impacts on the assessment. From his own evidence, it appears that
Mr Mohlala was detained in dirty police cells for approximately two days. He testified
that the conditions were such that he was unable to eat and that he was not provided
with a blanket. He also stated that, as a result of the detention, he lost his employment,
but this aspect was not fully canvassed before the high court.

[23] In addition to these considerations, regard may be had to awards made in
comparable cases as a useful guide.38 These awards provide a general sense of what

comparable cases as a useful guide.38 These awards provide a general sense of what
experience has shown to be reasonable, to which due regard may be had in
determining an appropriate award on the particular facts. 39 The purpose of this

35 Tyulu fn 32 para 26.
36 Motladile fn 33 para 17, citing JM Potgieter et al Visser & Potgieter Law of Damages 3 ed (2012)
(Juta) at 545–8; Klopper fn 34 at 255-9. Also see Seymour fn 34 para 17.
37 Motladile fn 33 para 22.
38 Seymour fn 34 paras 17 and 20; Hulley v Cox 1923 AD 234 at 246.
39 Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A) at 536A-B; Scott v Musial (1959) 3 W.L.R. 437
at 446 cited with approval in Sigournay v Gillbanks 1960 (2) SA 552 (AD) at 556. In considering previous
awards, allowance should be made for inflation: Neethling et al fn 20 at 190; Moses v Minister of Law
and Order 1995 (2) SA 518 (C) at 524.

13
exercise is to ensure that the award is not substantially out of line with those made in
broadly similar matters.

[24] The following recent decisions of this Court, spanning the period from 2022 to
2025, provide some guidance. In Diljan,40 the appellant was detained for three nights
in conditions described as ‘appalling’, including dirty and malodorous blankets, a
blocked toilet and the absence of toilet paper. She was unable to eat the limited food
provided and was deprived of visitation; an award of R120 000 was made in respect
of unlawful arrest and detention. In Syce,41 the appellant was detained unlawfully for
approximately 13 hours in a dirty and overcrowded cell; an award of R40 000 was
made in respect of unlawful detention. In Van der Nest ,42 the deceased claimant,
whose executor was substituted as claimant before this Court, was detained for
approximately 20 hours in filthy conditions. She was deprived of food, water and a
mattress, and her privacy was compromised in that male detainees were able to see
her in her cell; an award of R50 000 was made in respect of unlawful arrest and
detention.

[25] Mr Mohlala’s unlawful detention warrants an award of general damages as a
salve to assuage the insult, indignity and suffering caused by the deprivation of his
liberty, including the conditions under which he was detained. 43 The award must be
appropriate and must reflect the importance of the fundamental constitutional rights
infringed, taking into account both the physical and psychological impact of the
detention.44

[26] In all the circumstances, and having regard in particular to the duration of the
detention and the conditions under which it occurred, an amount of R 80 000
constitutes an appropriate award of general damages. This amount accords with the
general range of awards in broadly similar cases.



40 Diljan fn 5 para 22.
41 Syce fn 4 para 57; Also see Masiteng v Minister of Police [2024] ZASCA 165 paras 7 and 21.
42 Van der Nest NO fn 33 para 4.

42 Van der Nest NO fn 33 para 4.
43 Whittaker v Roos and Bateman; Morant v Roos and Bateman 1912 AD 92 at 123. See Amerasinghe
(1967) 84 SALJ 331 at 335.
44 Minister of Justice v Hofmeyr [1993] ZASCA 40; [1993] 2 All SA 232 (A); 1993 (3) SA 131 (A) at 145I–
J; Van der Nest NO fn 33 para 33.

14
Costs
[27] There are competing considerations in relation to costs. While Mr Mohlala
abandoned his claim for unlawful arrest before his appeal to the high court, he
persisted in his claim for malicious prosecution. His application for special leave to
appeal before t his Court relied on prospects of success in respect of both unlawful
detention and malicious prosecution. That he has succeeded only in respect of the
former is a relevant consideration in the exercise of this Court’s discretion as to costs.

[28] In determining who the successful party is for purposes of a costs order, this
Court must have regard to the substance of the judgment. Mr Mohlala has succeeded
in obtaining a damages award and, in the absence of any tender, was obliged to
approach this Court to obtain that relief.45 In my view the issues pursued in the appeals
to both the high court and this Court were sufficiently interwoven such that it would be
inappropriate to make separate costs orders per claim. 46 The respondents did not
succeed on a distinct issue wholly unconnected to the claim for unlawful detention,
and Mr Mohlala has obtained a substantial award and vindicated an important right.47

[29] Although Mr Mohlala is entitled to a costs order in his favour, the costs of both
appeals were increased by the issue of malicious prosecution, on which he has been
unsuccessful. This justifies an award of only a portion of his costs and, having regard
to the nature of the matter, the quantum involved and the absence of complexity, the
costs of a single counsel. An award of 50 percent of his costs is appropriate.48

[30] Finally, it should be noted that Mr Mohlala claimed in excess of R1 million in
respect of unlawful arrest, detention and malicious prosecution. This was extravagant,
and the inflated amounts remained unamended in the particulars of claim despite the
wealth of authority indicating a far lower range. Such conduct has been deprecated by

wealth of authority indicating a far lower range. Such conduct has been deprecated by
this Court, and practitioners are required to make realistic assessments of the merits
of their clients’ cases, including in relation to quantum. 49 Inflated claims of this nature
tend to increase costs unnecessarily, both at trial and on appeal, and diminish the
prospects of settlement.

45 Norwich Union Fire Insurance Society Ltd v Tutt 1960 (4) SA 851 (A) at 854D–E.
46 Invernizzi v Port Elizabeth Municipality 1954 (2) SA 288 (E) at 299D–F; Syce fn 4 para 72.
47 Du Preez v Minister of Police [2025] ZAECMKHC 99 para 73.
48 Cf Syce fn 4 para 72.
49 See, for example, Diljan fn 5 para 20.

15
[31] The following order is made:
1 The applicant is granted special leave to appeal against the order of the high
court, limited to the claim for unlawful detention.
2 The costs of the application for special leave to appeal shall be costs in the
appeal.
3 The appeal against the order of the high court is upheld.
4 The order of the high court is set aside and substituted with the following:
‘(i) The appeal against the dismissal of the appellant’s claim for unlawful
detention is upheld.
(ii) The order of the magistrates’ court is set aside and replaced with the
following:
(a) The second defendant is liable for the unlawful detention of the
plaintiff at Dennilton Police Station between 1 April 2017 and 3 April
2017.
(b) The second defendant is ordered to pay the plaintiff the sum of
R80 000 as general damages, together with interest thereon at the legal
rate from 25 April 2023 to the date of final payment.
(c) The second defendant is ordered to pay fifty (50) percent of the
plaintiff’s costs.
(iii) The second respondent is ordered to pay fifty (50) percent of the costs
of the appeal, including the costs of counsel on scale B.’
5 The second respondent is ordered to pay fifty (50) percent of the applicant’s
costs of the appeal in this Court.




________________________
A GOVINDJEE
ACTING JUDGE OF APPEAL

16
Unterhalter JA (dissenting):

[32] I have had the pleasure of reading my brother, Govindjee AJA’s judgment (the
first judgment). I am unable to agree with its conclusion, and certain of the reasoning
that supports this conclusion. I commence, however, by setting out the matters with
which I concur.

[33] First, I agree that there is a substantial point of law to be determined that
warrants the grant of special leave. Second, the first judgment sets out the statutory
framework for the grant of police bail. An accused who is in custody in respect of any
offence, other than those set out in s 59(1)(a) of the Act, may , before his or her first
appearance in a lower court, be released on bail. I shall refer to this, following the first
judgment, as police bail. Third, an accused who is in custody and may be released on
police bail must be informed of his or her right to seek their release on police bail . I
shall refer to this right as the right of request. Fourth, should an accused wish to
exercise this right, a duty rests upon the police, within a reasonable time, to consider
admitting the accused to police bail. I shall refer to this as the duty of consideration.
This duty entails that a police official of or above the rank of a non -commissioned
officer must be available, on reasonable terms, to decide whether to release an
accused on police bail, in consultation with the police official charged with the
investigation.

[34] The first judgment proceeds from the premise that the failure by the police to
inform an accused of his or her right of request and the failure by the police to consider
the possibility of release on police bail renders the continued detention of the accused
unlawful, absent justification.50 The question that arises is this: does the infringement
of the accused’s right of request and the failure by the police to comply with their duty
of consideration render the continued detention of the accused in custody unlawful?

of consideration render the continued detention of the accused in custody unlawful?
The first judgment holds that it does. And this holding is central because Mr Mohlala’s
cause of action rests upon the claim that his detention was wrongful and unlawful.

[35] Section 59(1)(a) of the Act does not invest in an accused, who may be admitted
to police bail, a right to such bail. An accused who may be admitted to police bail, as

50 First judgment para 11.

17
explained, has a right of request, which, if exercised, triggers the duty of consideration.
Does the infringement of the right of request or a failure to comply with the duty of
consideration render the continued detention of the accused unlawful?

[36] This question requires some analysis of what it means, in these circumstances,
to attribute unlawfulness to the detention of the accused. T here are different types of
rights that are enjoyed by persons who are detained. These include the rights set out
in s 35(2) of the Constitution. So, for example, s 35(2)(e) of the Constitution provides
that everyone who is detained has the right ‘to conditions of detention that are
consistent with human dignity …’. If the conditions of detention do not meet the
constitutional standard, an infringement of the right has occurred and that is unlawful.
In this sense , the detention of the person is unlawful (subject to the state’s claim of
limitation). But it does not follow that the person so detained is entitled to be released
from detention. That is a question of remedy, it is not part of the content of the right.
In other words, the person may not continue to be detained under conditions that do
not meet the required constitutional standard, but that does not mean that this person
has a right to be released.

[37] Section 35(2)(d) of the Constitution accords the right to a detained person to
‘challenge the lawfulness of the detention in person before a court and, if the detention
is unlawful, to be released’. This right is the constitutional expression of the common
law right of habeas corpus (the writ de homine libero exhibendo). The very nature of
this right is that a person detained by the state must be brought to court; they are
entitled to ask the court for their release; and the court is bound to grant their release,
unless there is some lawful cause for their detention.51 The content of this right is the

unless there is some lawful cause for their detention.51 The content of this right is the
right to be released from detention, unless there is a lawful basis for the detention.

[38] Section 35(2) of the Constitution accords other rights to detained persons, the
infringement of which would be unlawful . But unlike s 35(2)(d), these rights are not
framed on the basis that an infringement of the right entails the right of the detained
person to be released from detention. This distinction is reinforced in the Constitution,
if regard is paid to the right of an arrested person who has allegedly committed an
offence. Section 35(1)(f) of the Constitution provides that an arrested person has the

51 Wood and Others v Ondangwa Tribal Authority and Another 1975 (2) SA 294 (A) at 309A-H.

18
right ‘to be released from detention , if the interests of justice permit, subject to
reasonable conditions’. Lawfully arrested persons do not enjoy an unqualified right to
be released. Their right is subject to what the interests of justice permit.

[39] This constitutional scheme demarcates and distinguishes the rights of detained
persons to be released from detention, and other rights of those who are lawfully
detained to enjoy rights during the period of their detention. I will refer to this latter
class of rights as detention rights. In terms of s 35(2) of the Constitution, the class of
persons who hold detention rights include sentenced prisoners. The content of
detention rights does not include a right to be released from detention, as the inclusion
of sentenced prisoners in the class of rights holders makes plain. Release may be an
appropriate remedy, in very special circumstances. But detention rights are conferred
upon detained persons for their benefit, whilst subject to detention.

[40] In this case, we are concerned with the rights of Mr Mohlala in terms of
s 59(1)(a) of the Act. He enjoyed a right of request. The police owed Mr Mohlala a duty
of consideration, if he wished to exercise his right of request. I shall consider whether
Mr Mohlala made out a case for the infringement of his rights. But first, it is necessary
to consider whether, if there was such an infringement, in what sense, if any, did it
render Mr Mohlala’s continuing detention unlawful.

[41] The right of Mr Mohlala in terms of s 59(1)(a) of the Act is a right of request. It
is the right to be considered for admission to police bail, upon request. The first
judgment correctly holds that detained persons who may be admitted to police bail
must be informed of their right to request such bail. If this is not done, as a result of
which police bail is not sought, and hence not considered by the police, what is the
legal consequence? The first judgment holds that the continued detention of such a

legal consequence? The first judgment holds that the continued detention of such a
person is unlawful, and this reflects the right to personal liberty.

[42] I do not consider this holding to be correct. If the detained person had been
accorded his rights under s 59(1)(a) of the Act , he would have enjoyed the proper
consideration of his request to be admitted to police bail. He would not have had a
right to be released. If the full enjoyment of the right does not extend to a right of
release, how can the infringement of the right create such a right. In my view, it cannot.
The infringement of the right to request police bail and have it properly considered is

19
unlawful. It may be actionable as a delict. But it does not render the detention unlawful
in the sense that it becomes unlawful to continue detaining the person, once his right
was infringed. The statutory right neither contains, nor entails, a right of release. The
infringement of the right of request and the failure by the police to observe their duty
of consideration is unlawful. A person who suffers detention without the observance
of their right to seek police bail (if they qualify for such considerati on) is entitled to
enforce their right. And they may seek civil redress for the infringement of their right.
But that infringement does not entail a right of release because the object of the right
is the consideration of police bail by the police official clothed with the authority to do
so. Hence, the infringement of the right does not render the continued detention of the
person who enjoyed the right unlawful.

[43] The first judgment understands the decision of this Court in Syce52 as authority
for the proposition that a failure to inform a detainee of the right of request, a failure to
consider the possibility of release on police bail or an unreasonable delay in doing so,
in the absence of lawful justification, renders the continue d detention of the detainee
unlawful.53 That is not my reading of Syce. In Syce,54 the pleaded case was that
Mr Syce’s continued detention was unlawful because it was no longer required.
Mr Syce was released on police bail, the question was why it did not take place sooner.
There was no proper explanation of this delay. Mr Syce’s continued detention was
unlawful in these circumstances. There was no doubt that Mr Syce was to be admitted
to police bail, the only question was the delay in doing so. That decision should have
been made sooner than it was. Had there been no unreasonable delay, Mr Syce would
and should have been released on the evening that preceded the day of his release.

and should have been released on the evening that preceded the day of his release.

[44] Syce is a case of unreasonable delay in effecting the release of a detained
person entitled to police bail. Mr Syce was entitled to be considered for release on
police bail. He was found to warrant the grant of police bail. It was unreasonable to
have delayed that grant. Consequently, he was entitled to be released from detention
sooner than he was. His continued detention, from the time when the decision to admit
him to police bail should have been taken, to the time of his eventual release was thus
unlawful.

52 Syce fn 4.
53 First judgment para 11.
54 Syce fn 4 paras 48-52.

20
[45] The ratio of Syce is that an unreasonable delay in making a decision to grant
police bail renders the continuing detention of the person entitled to such grant
unlawful, after the time when the decision should reasonably have been rendered.
Once there was reason to admit Mr Syce to police bail, he was entitled to the benefit
of his release within a reasonabl e time for the taking of this decision. Unreasonable
delay meant that he was denied his liberty which he would otherwise have been
entitled to enjoy. He nce the legal conclusion of the unlawfulness of his continued
detention.

[46] In the present case, Mr Mohlala was not detained in circumstances where he
was entitled to be released. As I have explained, his statutory right was to be informed
of his right of request and be afforded an opportunity to exercise this right. He enjoyed
no right to be released from detention. As a result, even if his rights were infringed, his
continued detention was not unlawful.

[47] The first judgment also refers to Setlhapelo,55 which Syce cited with approval.56
It did so because of its insistence that the police have a duty, as soon as reasonably
possible, after the arrest of a person, to ascertain whether they wish to be considered
for admission to police bail. The consequence of a failure to do so in Syce was that
the continued detention of Mr Syce was unlawful. This holding rests on the finding, as
explained, that Mr Syce was granted police bail, but after an unlawful delay. It does
not follow that if the decision had been taken not to admit Mr Syce to police bail, the
unreasonable delay in reaching this decision would nevertheless have rendered his
continued detention unlawful. In my view, it would not have done so . To the extent
Setlhapelo suggests otherwise, for the reasons given, it was wrongly decided.

[48] I am therefore unable to agree with the legal premise of the first judgment. A
failure by the police to advise a detainee of the right of request and, further , to

failure by the police to advise a detainee of the right of request and, further , to
discharge their duty of consideration, gives rise to no right of release and hence these
failures do not render, to use the language of the first judgment, the ensuing detention
unlawful.


55 Setlhapelo fn 7 para 38.
56 Syce fn 4 para 45.

21
[49] I turn now to consider the case pleaded and made out by Mr Mohlala. The key
averment in the particulars of claim reads as follows: ‘The detention of the Plaintiff was
wrongful and unlawful in that it was effected, in the circumstances that the members
of the SAPS were entitled and permitted by the Criminal Procedure Act 57 of 1977 to
release the Plaintiff and only warn and/or notify him to appear in court on a date
determined by them. … As a result of this unlawful and wrongful detention the Plaintiff
suffered damages, being of deprivation, limitation and restriction of freedom of
movement, limitation of right to liberty, impairment of her (sic) dignity, limitation of the
right to privacy, emotional shock, humiliation and trauma, for a period of three days
…’.

[50] Mr Mohlala’s complaint is that his detention was unlawful because the police
enjoyed the statutory power to release him on police bail and did not do so. His
pleaded case did not allege that he was not informed of his right of request, though in
evidence Mr Mohlala said this was so. How this testimony is consistent with his
evidence that two other suspects , with whom he was arrested , were granted police
bail, when he was not, was not explained by him.

[51] On the most generous treatment of Mr Mohlala’s pleaded case and the
evidence led at trial , it amounts to this. He was not informed of his right of request.
The police had the power to consider whether he should be admitted to police bail.
They failed to carry out their duty of consideration. This rendered his continued
detention unlawful. By when the duty should reasonably have been discharged was
not specified.

[52] Mr Mohlala did not make out his cause of action because the failure by the
police to discharge their duty of consideration gave rise to no right enjoyed by
Mr Mohlala to be released. Nor could such right be established in virtue of any
infringement of his right of request. It was common ground before us that Mr Mohlala

infringement of his right of request. It was common ground before us that Mr Mohlala
was lawfully arrested and detained at the police station, after a breathalyser test
indicated a concentration of alcohol above the legal limit , and his subsequent refusal
to permit a doctor to draw a blood sample. The lega lity of his ongoing detention was
not rendered unlawful by reason of the failure by the police to discharge their duty of
consideration. That failure was unlawful, and may of itself give rise to a claim in delict.
But that is not the claim Mr Mohlala sought to make. His claim was that the failure to

22
discharge the duty of consideration rendered his further detention unlawful. It did not,
and hence his claim cannot prevail.

[53] Once that is so, no burden of proof attaches to the Minister to justify the unlawful
detention of Mr Mohlala. The infringement of his rights did not render his continuing
detention unlawful, and hence the wrongdoing of which he complained, that is, his
continuing detention, required no justification. Mr Mohlala’s continuing detention was
lawful, there was nothing to justify, and no onus resting upon the Minister to discharge.

[54] I would accordingly grant special leave and dismiss the appeal, with costs.




________________________
D N UNTERHALTER
JUDGE OF APPEAL

23
Appearances

For Applicant: M M Makoti (with him T P Motlatle)
Instructed by: Ratale Mashifane Inc. Attorneys, Jane Furse
Phatshoane Henney Attorneys, Bloemfontein


For Respondents: M S Mphahlele SC (with him K S Maboea)
Instructed by: State Attorney, Polokwane
State Attorney, Bloemfontein.