IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GQEBERHA)
Case no: 1318/2024
In the matter between:
SIPHESIHLE HOPEWELL KAKANA Plaintiff
and
THE MINISTER OF POLICE First Defendant
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS Second Defendant
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JUDGMENT
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Appels AJ
Introduction
[1] This is an action for damages in which the plaintiff claims against the first
defendant for alleged unlawful arrest and detention. The action was initially instit uted
against both defendants. In this regard, the plaintiff claimed:
a) in respect of claim 1, against the first defendant for unlawful arrest and detention
before the first court appearance;
b) in respect of claim 2, against both defendants for his furt her detention from his
first appearance to his release from custody; and
c) in respect of claim 3, against the second defendant only for malicious prosecution.
[2] All claims against the second defendant were withdrawn during the course of
the trial. During closing argument, the plaintiff’s counsel also indicated that the
plaintiff will not persist with the claim against the first defendant for the further
detention following the plaintiff’s first appearance in court.
The facts
[3] The facts of this matter are common cause. The plaintiff, along with another
man, was arrested by a member of the SAPS, Sgt Ngcokazi, on 4 February 2022
without a warrant of arrest. They were detained until their first appearance in the
Magistrates’ Court on 7 February 2022 on a charg e of robbery with aggravating
circumstances. After the plaintiff’s first appearance on 7 February 2022, he was
detained in terms of successive remand orders issued by the magistrate. He was
eventually released from custody when he was discharged by the pre siding
magistrate in terms of section 174 of the Criminal Procedure Act 51 of 1977 (“the
CPA”).
[4] By agreement the following documents were admitted into evidence:
a) The transcribed record of the bail and criminal trial proceedings in the
Magistrates’ Court, marked Exhibit A;
b) An indexed bundle of documents, containing sworn statements, bail
information form, investigation diary and the Regional Court charge sheet,
marked Exhibit B; and
c) The minutes of a rule 37 pre -trial conference, marked Exhibit C. It was
recorded inter alia in the minutes that the documents referred to above may
be admitted into evidence without the necessity of having to prove the
contents thereof.
[5] The plaintiff’s ar rest was preceded by a report of an armed robbery made by
two complainants, Thandiswa and Unathi Kalipa (“the complainants”). It appears
from two sworn statements made by Unathi Kalipa (“Unathi”), admitted into evidence
as part of Exhibit B, that on 4 Febr uary 2022 at approximately 21h30, his home,
which he shared with Thandiswa Kalipa (“Thandiswa”), was invaded by two men,
one of whom was armed with a firearm. The complainants were robbed of certain of
their belongings, including their motor vehicle.
[6] The robbery was reported to the SAPS who sent two members, Sgt Ngcokazi
and St Hoza to attend to the scene. While Unathi was standing outside his home,
giving a statement to the police about the armed robbery, the plaintiff and his co -
accused walked past them. Unathi identified and pointed them out to the SAPS
members as the two men who invaded his home earlier that same evening. He
stated that he recognised them by their complexion, the clothes that they are
wearing and the fact that one of them wore a beard.
[7] The plaintiff was arrested by Sgt Ngcokazi, after having been so identified and
pointed out by Unathi as one of the armed robbers who invaded his home. Notably,
the plaintiff conceded during cross -examination that he was wearing a beard on the
evening of 4 February 2022 when he was pointed out by Unathi.
[8] After his arrest, the plaintiff appeared in court on 7 February 2022 on a charge
of robbery with aggravating circumstances. A bail application was brought on 21
February 2022, with judgment being handed d own on 28 February 2022. The
magistrate refused bail and the plaintiff remained in custody. The plaintiff thereafter
made numerous court appearances, and he was remanded in custody by order of
made numerous court appearances, and he was remanded in custody by order of
the magistrate until he was discharged at the end of the state’ s case in accordance
with section 174 of the CPA on 13 February 2024.
[9] In his ruling in terms of section 174 of the CPA, the magistrate recorded that
the evidence of the complainants ‘as far as the identity of the robber is concerned, is
not sufficient’. In this regard, the magistrate pointed out various deficiencies and
inconsistencies in their evidence regarding the identity of the armed robbers who
invaded their home.
[10] The plaintiff made several concessions during cross -examination. He
conceded that he was identified and pointed out by Unathi as one of the armed
robbers who invaded his home and that he was arrested after being so identified. He
also conceded that it was reasonable for the police to arrest him after having been
so identified and pointed o ut. He also conceded that he was wearing a beard on 4
February 2022.
[11] The contents of Exhibit A, as it relates to the bail proceedings were put to the
plaintiff during cross -examination and he was forced to make further concessions
regarding his detention a fter his first appearance in court. In this regard, he
conceded that he was given the opportunity to apply for bail; that he presented
evidence during the bail proceedings and that the investigating officer also gave
evidence at the bail hearing.
[12] The plai ntiff could not point to anything in the evidence given by the
investigation officer that was untrue. In this regard, the plaintiff conceded that the
investigating officer stated that he was arrested because he was pointed out and
identified by the compla inant as the person who carried out the robbery. The
investigating officer’s evidence in this regard was in accordance with the sworn
statements of the complainants. The plaintiff was further forced to concede that the
magistrate considered all the evide nce that was presented in court before giving
judgment in the bail application.
Analysis
[13] It is common cause that the plaintiff was arrested without a warrant and
accordingly the onus to justify the arrest rests on the defendant. 1 In this regard, the
first defendant pleaded that the arrest was lawful in terms of section 40(1)(b) of the
CPA in that the plaintiff was reasonably suspected of having committed an offence
mentioned in Schedule 1 of the CPA.2
[14] In Duncan v Minister of Law and Order 3 it was held t hat the jurisdictional
requirements for a lawful arrest in terms of section 40(1)(b) of the CPA are that:
a) the arrestor must be a peace officer;
b) there must have been a suspicion that
c) the suspect committed an offence referred to in Schedule 1 of the CPA; and
d) the suspicion must be reasonable.
[15] The arresting officer did not give oral evidence regarding the information that
he had at his disposal when he arrested the complainant. However, all the facts
which he had at his disposal and to which he w ould have testified had he given oral
evidence are common cause. These common cause facts are evident from the
exhibits admitted into evidence by agreement, as well as the plaintiff’s own evidence
during examination in chief and the concessions he made during cross-examination.
[16] It is clear from these common cause facts that the arresting officer was a
peace officer that held a suspicion that the plaintiff committed robbery. Robbery is an
offence mentioned in Schedule 1 of the CPA 4. Therefore, at least thre e of the four
jurisdictional requirements to justify an arrest without a warrant, have been met. The
question which should be determined is whether the suspicion was objectively
reasonable.
[17] In Biyela v Minister of Police5 the Supreme Court of Appeal held that:
1 Minister of Law and Order v Hurley 1986 (3) SA 568 (A) at 589E-F.
2 Robbery is an offence mentioned in Schedule 1.
3 1986 (2) SA 805 (A) at 818G-H.
4 Schedule 1 of the CPA.
5 2023 (1) SACR 235 (SCA) at paras 33-35.
‘The question whether a peace officer reasonably suspects a person of having committed an
offence within the ambit of s 40(1)(b) is objectively justiciable. It must, at the outset, be
emphasized that the suspicion need not be based on information tha t would subsequently
be admissible in a court of law.
The standard of a reasonable suspicion is very low. The reasonable suspicion must be more
than a hunch; it should not be an unparticularized suspicion. It must be based on specific
and articulable facts or information. Whether the suspicion was reasonable, under the
prevailing circumstances, is determined objectively.
What is required is that the arresting officer must form a reasonable suspicion that a
Schedule 1 offence has been committed, based on credible and trustworthy information.
Whether that information would later, in a court of law, be found to be inadmissible is neither
here nor there for the determination of whether the arresting officer at the time of arrest
harboured a reasonable suspici on that the arrested person committed a Schedule 1
offence.’
[18] It was suggested during argument by the plaintiff’s counsel that the arresting
officer should not have merely accepted the statement and identification made by
Unathi. It was contended that he should have done some further investigation before
arresting the plaintiff. I was referred to various authorities where the courts have
found that a police officer is expected to analyse and weigh the quality of information
critically and only after he has c hecked what can be checked, would he be able to
form a suspicion.6
[19] These authorities rely on Mabona and another v Minister of Law and Order
and others (“Mabona”)7 where the court held as follows in relation to how a
reasonable suspicion is formed:
‘Would a reasonable man in the second defendant’s position and possessed of the same
information have considered that there were good and sufficient grounds for suspecting that
information have considered that there were good and sufficient grounds for suspecting that
the plaintiffs were guilty of conspiracy to commit robbery or possession of stolen p roperty,
knowing it to have been stolen? It seems to me that in evaluating his information, a
6 See for instance Minister of Police v Dhali (CA327/2017) [2019] ZAECGHC 16 (26 February 2019)
at para 13.
7 1988 (2) SA 654 (SE) at p 658G-H.
reasonable many would bear in mind that the section authorises drastic police action. It
authorises an arrest on the strength of a suspicion and without the need to swear out a
warrant, i.e. something which otherwise would be an invasion of private rights and personal
liberty. The reasonable man will therefore analyse and assess the quality of the information
at his disposal critically, and he will not accept it lightly or without checking it where it can be
checked. It is only after an examination of this kind that he will allow himself to entertain a
suspicion which justify an arrest.’
[20] However, in Mawu and another v Minister of Police 8 the court held that
Mabona cannot be regarded as authority for the proposition that for a reasonable
suspicion to be formed, it is necessary that the arresting officer should, in all cases,
analyse and assess the quality of the information on which his suspicion is found
prior to arresting the suspect. I agree.
[21] In this regard, it must be borne in mind that the statement by the court in
Mabona regarding the need to analyse information, was made in the context of a
police officer relying solely on information he received from a secret informer. The
court held that the police officer should have treated the information received from
an informer with caution. The court stated the following:
‘Every reasonable policeman knows that our courts regard the evidence of informers with
caution. Informers are categorised with accomplices, quasi accomplices and police traps as
witnesses whose evidence must be subjected to close and careful scrutiny before it is
accepted at all unless it is corroborated.’9
[22] It should also be borne in mind that the court in Mabona went further and
stated that:
‘This is not to say that the information at his disposal must be of sufficiently high quality and
cogency to engender in him a conviction that the suspect is in fact guilty. The section
requires suspicion but not certainty.’10
requires suspicion but not certainty.’10
8 2015 (2) SACR 14 (WCC) at para 31.
9 Mabona (supra) at p 658I-J.
10 Mabona (supra) at p 658H.
[23] The facts of Mabona are clearly distinguishable from the facts in this matter.
In Mabona, the arresting officer relied solely on information received from a secret
informer. In this matter, the plaintiff walked past the sce ne of an armed robbery
which occurred early that same evening and was identified by an eyewitness, in the
presence of the arresting officer, as one of the men who carried out the armed
robbery.
[24] There is no evidence that the plaintiff gave any potentially exculpatory version
that would have given the arresting officer cause to do further checks and
verification. Under these circumstances, where the arresting officer was relying on
the direct evidence of an eyewitness, I cannot find that he ought to have don e more
analysing or investigation before arresting the plaintiff.
[25] The fact that the magistrate in the criminal proceedings did not find the
complainant’s evidence sufficiently reliable to sustain a conviction of the plaintiff
does not mean that the informa tion the arresting officer had was insufficient to
harbour a reasonable suspicion that the plaintiff committed the offence. Questions
about the reliability and credibility of a complainant’s identification need not be
determined by the arresting officer wi th the same degree of certainty (beyond
reasonable doubt) which is required for conviction in criminal proceedings.11
[26] In my view, viewed objectively, the information that the arresting officer had at
his disposal justified a reasonable suspicion that the plaintiff committed the robbery
reported to have occurred on 4 February 2022.
[27] Once the jurisdictional requirements for an arrest have been met, a discretion
arises.12 Arresting officers are entitled to exercise their discretion as they see fit,
provided that they stay within the bounds of rationality. 13 The party who alleges that
the discretion has been improperly exercised bears the onus of proof. 14 The offence
the discretion has been improperly exercised bears the onus of proof. 14 The offence
which the plaintiff was suspected of having committed was a serious offence. No
11 Minister of Safety and Security v Bothma and another 2016 (1) SACR 632 (ECG) at para 17.
12 Minister of Safety and Security v Sekhoto and another 2011 (5) SA 367 (SCA) at para 28.
13 Minister of Safety and Security v Sekhoto and another (supra) at para 36.
14 Minister of Safety and Security v Sekhoto and another (supra) at para 49.
evidence was placed before me from which I could conclude that the arresting officer
did not exercise his discretion within the bounds of rationality.
[28] During closing argument, the plaintiff’s counsel indicated that the plaintiff does
not persist with claim 2. This concession was correctly made. In this regard it was
evident from the plaintiff’s own evidence and the concessions made during cross -
examination, that the successive remand orders in terms of which the plaintiff was
detained from his first appearance to his release from custody, did not breach the
provisions of section 12(1)(a) of the Constitution.15
[29] In this regard, it should be noted that the plaintiff was charged with a
Schedule 6 offence.16 The magistrate was therefore obliged to:
‘…order the accused be detained in custody until he or she is dealt with in accordance with
law, unless the accused, having been given a reasonable opportunity to do so, adduces
evidence which satisfies the court that exceptional circumstances exist which in the interests
of justice permit his or her release.’17
[30] The plaintiff was given an opportunity to apply for bail and was legally
represented during the bail proceedings. After hearing both the state and the
plaintiff, the magistrate refused bail. It is evident from the contents of Exhibit A that
the magistrate considered all the facts and circumstances relevant to bail in
accordance with section 60(5) to (9) of the CPA. It was not suggested that the
investigating officer or the prosecutor withheld any information from the magistrate
which was relevant to the determination of bail.
15 Section 12(1)(a) of the Constitution affords every accused person with a right not to be deprived of
freedom arbitrarily without just cause. Every encroachment on physical freedom must be carried out
in a procedurally fair manner and should be substantively justified by acceptance reasons. A breach
of section 12(1)(a) of the Constitution may render detention unlawful for the purposes of a delictual
claim for damages even where the accused was detained in terms of an order issued by a magistrate.
See Zealand v Minister of Justice and Constitutional Development and another 2008 (4) SA 458 (CC)
at paras 43-53.
16 ‘Robbery involving (a)the use by the accused or any co-perpetrators or participants of a firearm;..or
(c) the taking of a motor vehicle’, is mentioned in Schedule 6 of the CPA.
17 Section 60(11)(a).
[31] The remand orders in terms of which the plaintiff was detained from the date
of his first appearance were therefore g ranted in a procedurally fair manner and for
substantially justifiable reasons. 18 Accordingly, no delictual claim for damages can
arise from his detention after his first appearance in court.
[32] Claim 3 was withdrawn during the course of the trial. In respect of claim 3, the
plaintiff bore the onus of proving that the second defendant instigated the
proceedings, acted without reasonable and probable cause, acted with malice and
that the prosecution failed. The plaintiff only proved that a) the second defendant
instigated the proceedings and b) that the prosecution failed. No evidence was
presented that the prosecution was instituted without reasonable and probable
cause, nor was there any evidence that the prosecutor acted with any malice.
[33] In the circumstances, counsel for the plaintiff ought to be commended for not
persisting with Claims 2 and 3.
Conclusion
[34] I find that the defendant has discharged the onus of justifying the arrest of the
plaintiff in terms of section 40(1)(b) of the CPA. No evidence was present ed to
suggest that the discretion to arrest was improperly exercised. Accordingly, claim 1
as set out in the particulars of claim ought to be dismissed.
[35] Claim 2 and Claim 3 have been withdrawn by the plaintiff during the trial. Had
these claims not been withdrawn, they would have been dismissed for the reasons
set out above. Therefore the entire action falls to be dismissed with costs.
Order
[36] The following order is issued:
1. The plaintiff’s action against the first and second defendants in respect of
claims 1, 2 and 3, are dismissed.
18 Zealand v Minister of Justice and Constitutional Development and another (supra).
2. The plaintiff is ordered to pay the costs of the first and second defendant,
including the costs of counsel, taxed on scale B.
________________________
G APPELS
ACTING JUDGE OF THE HIGH
COURT
APPEARANCES:
For the Plaintiff: Adv. Z Bangani
Instructed by: Magqabi Seth Zita Attorneys
14 Market Street
North End
GQEBERHA
For the Defendants Adv. N. Mullins SC
Instructed by: State Attorney
29 Western Road
Central
GQEBERHA
Heard: 10 November 2025, 11 November 2025 and
12 November 2025
Delivered: 10 March 2026