IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION: MTHATHA
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES
DATE: 27 MARCH 2026_________
SIGNATURE: __________________
Case no: 959 / 2021
In the matter between:
APHIWE PIUS LAMLA Applicant
and
THE MINISTER OF POLICE Defendant
____________________________________________________________________________
Summary: Unlawful Arrest – search without warrant sections -22, 29, 40, 50 Criminal
Procedure Act -1977 – section 13 South African Police Act -1995. Unjustified and
damages awarded.
____________________________________________________________________________
JUDGMENT
____________________________________________________________________________
NTLAMA-MAKHANYA AJ
[1] The applicant was arrested at his home in Bhongweni Township, Phase Two,
Mthatha on the 29 th of January 2021 by members of the defendant without a
warrant of arrest. He was detained at the Mthatha Central Police Station. He was
charged for possession and dealing in drugs. He appeared at the Magistrate
Court on the 1 st of February 2021, and the prosecutor declined to prosecute.
Thereafter, he was subsequently released. Aggrieved by the conduct of the
members of the defendant, he instituted a claim for damages for the said arrest
and alleged that it was in violation of his constitutional rights.
[2] The matter was opposed by the defendant.
[3] The matter proceeded before this Court on both merits and quantum.
[4] The parties agreed that the defendant had a duty to begin to justify the
lawfulness of the arrest and the applicant to prove the reasona bleness of the
claim for damages.
[5] The main question before this Court was to consider whether the alleged
unlawful arrest and subsequent detention of the applicant were lawful. Simply
put, whether the arresting officers had reasonable grounds to beli eve the
applicant’s arrest and detention were justifiable.
[6] In traversing the main question, it is essential for this Court to provide a brief
background on the sequence of events that resulted in the claim for damages
against the defendant. Both parti es called one witness each. The defendant was
represented by the arresting officer whilst the plaintiff testified on his behalf.
BACKGROUND
[7] The applicant was arrested by SAPS members at his homestead in Bhongweni
Township: Phase 2, Mthatha on 29 Janu ary 2021 at about 23h30 in the evening.
He was suspected of selling drugs following a tip -off from the resident of the said
Township. His arrest was effected by Seargent Tebello Mketu with Seargent
Ndamase. During his arrest it also turned out that there w ere two other Officers
that were involved in the arrest. On their arrival at the applicant’s homestead,
they knocked and the applicant opened the door and was shocked to see the
Police wearing Head Gears (balaclavas) and two (2) other Officers pointing a
firearm at him. He then retreated behind the door and hid beneath the couch. At
the house, he was with two of his friends: Sinovuyo Giqwa (Sinovuyo) and Xolani
Cuba (Xolani) excluding his mother who was at her other house that turned out to
be her rental fl ats. The Police told him that they were there to conduct a search
for drugs. During the search, they found 4 sachets of Tik (crystal meth) from the
applicant. Thereafter, he was arrested and transported and detained at Mthatha
Central Police Station (Police Station) where he was charged for possession and
dealing in drugs. He was informed of his constitutional rights and signed a
warning statement. He was detained from the evening of the 29th of January 2021
until his subsequent transportation from the Police Station to the Magistrate
Court in the morning of the 1 st of February 2021. Whilst awaiting at the
Magistrate Court, he was called and only to find out that it was a Legal
Representative that was organised by his mother. The Legal Representative
informed him that prosecution declined to prosecute him because there was no
evidence of a successful prosecution.
[8] This background laid the foundation to determine the efficacy of the parties’
submissions in this matter.
PARTIES SUBMISSIONS
[9] The purpose in this section is not to exhaust the submissions but to highlight the
foundations of this case.
Defendant
[10] The defendant called one witness: Seargent Tebello Mketu whom I will simply
refer to as the defendant.
[11] The defendant subm itted that he reported for duty at 18h00 and thereafter went
to patrol with Seargent Ndamase in a marked Police Van at Bhongweni
Township, Phase 2. Whilst on patrol, at about 19h00, they received a tip -off from
the resident of the Township that drugs were being sold at the applicant’s
homestead. The defendant (Seargent Mkefu, Sergeant Ndamase Constable
Mzamo and Constable Sesing) went to applicant’s homestead at about 23h30
despite the tip off at around 19h00. The purpose was to avoid people running
away in case of seeing police approaching. Upon their arrival, they knocked and
the applicant opened the door for them. They advised him of the purpose of their
visit that they were to conduct a search for drugs. During their search they found
four (4) sachets of crystal meth (Tik) from applicant (Aphiwe) They arrested him
without a search and warrant of arrest for possession of drugs and informed him
verbally of his rights. He was then taken to Central Police Station. On arrival, he
opened a docket and entered the SAP13 Book which records the items that have
been confiscated and to be used as evidence in court. Thereafter, the applicant
was put into the holding cells and was charged for possession and dealing in
drugs. At about 4am he was read of his constitutiona l rights which were
explained to him in IsiXhosa alongside the charge of possession of drugs as
envisaged in SAP14A. A warning statement was also read and the purpose of his
arrest and detention was also explained to him and in turn for him to write his
own statement. The defendant (Seargent Mkefu) averred that the applicant
admitted that the drugs found in him was his and addicted to them to fulfil his
own desires.
[12] The applicant was then taken into custody, and the Detention Officer took over
responsibility and prepared the Occurrence Book (OB) which records the
sequence of events that are essential for investigation and presentation of
evidence in court. The applicant was then taken to court on the 01 st of February
2021.
Plaintiff
[13] The p laintiff testified on his behalf. The gist of his submissions was already
captured in the background and defendant’s submission. This section will not
make any comprehensive details of his submissions. However, it is also essential
to highlight that he sub mitted that at the time of his arrest, he was awaiting his
Grade 12 (Matric) results and was not on full -time employment. He was working
on an adhoc basis and once had a contract with Telkom. At the time, he was
working as a Labourer at Makalane Constructi on which is a sub -contractor to
Mahlubi Construction. He submitted that at his residence, he was with his friends
(Xolani and Sinovuyo) consuming alcohol when the Police arrived. He submitted
that he opened the door and was shocked to see them in Head Gear s pointing a
firearm at him. In turn, he exclaimed and asked them what they were doing at his
place. He also submitted that he was never told of his rights because he was
clever and knew them. He dismissed the defendant’s contention that they did not
point firearms at him who then dropped them. Further, he submitted that they
were transported in different vehicles and were not taken directly to the police
station, but with one van that went via Zimbane Valley whilst the other van turned
to Ngangelizwe. On a rrival at the police station, he was told to wait for another
young man who turned out to be Sinovuyo. In addition, he submitted that he was
not advised of his rights at the Police Station and was coerced to sign the
documents without being explained to hi m or translated into IsiXhosa. He also
submitted that the conditions at the cells were inhuman with blocked toilets, cold,
submitted that the conditions at the cells were inhuman with blocked toilets, cold,
pouring rain, lack of privacy, overflowing waste and food could not be eaten.
Broadly, with these submissions, he denied that the Tik (crystal meth) was found
in his possession.
[14] To avoid duplication and conflation of arguments, the submissions provide the
subject of contention which now requires a focus on key issues in addressing the
content of this application.
ISSUES
[15] Flowing from the submissions above, this Court will determine the following
primary issues to establish whether:
(i) The plaintiff was searched and arrested unlawfully.
(ii) The defendant had reasonable grounds and proper discretion in
carrying the arrest.
(iii) The defendant’s conduct itself resulted in unlawful arrest and
detention of the plaintiff and
(iv) Quantum of damages, if any, ought to be awarded to the plaintiff.
[16] These issues necessitate the discussion of the principles that are well -
established in matters that are similarly situated with case.
LEGAL FRAMEWORK
[17] In resolving the dispute between the parties, this Court is guided by the
regulatory framework that constitutes the legal foundations for the SAPS’
functioning. In this regard, the South Afr ican Police Service Act 68 of 1995
(SAPS Act) read with the CPA serve as a benchmark against which to test the
rationality of the action of the police conduct. Of further importance is their
grounding on the transformative principles of the Constitution of the Republic of
South Africa, 1996 (Constitution) relating to the SAPS role in promoting the
principles of constitutional democracy. This is motivated b y Swain JA in W v
Minister of Police1 who held:
“The Constitution imposes a duty on the state and all of its organs not to perform
any act that infringes the entrenched rights such as the right to life, human dignity
and freedom and security of the person. This is termed a public law duty ... [and its]
…breach … gives rise to a private law breach of [a person’s] right not to be
unlawfully detained which may be compensated by an award of damages. There
can be no reason to depart from the general law of accountability that the state is
liable for the failure to perform the duties imposed upon it by the Constitution, unless
there is a compelling reason to deviate from the norm.”2
[18] This is the tone set for this Court to address the issue raised herein with
reference to the claim itself of search and arrest without a warrant. The main
question focused o n establishing the alleged unlawfulness and
unreasonableness of the arrest without a warrant. The CPA lays down the
framework for exceptional circumstances where a search may be conducted
without a warrant. In these situations, a police officer, as defined in section 1(x)
read with section 5(2) of SAPS Act, may be justified in conducting a search and
arrest without a warrant if a reasonable belief existed that there were articles or
properties that may be used for the commission of an offence. The CPA is
explicit in protecting the carriage of search and arrest without a warrant as
envisaged in section 22 which provides:
“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:
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
1 W v Minister of Police [2015] 1 All SA 68 (SCA).
2 Ibid at para 28, cited by Tshiqi J in Mahlangu v Minister of Police 2021 (7) BCLR 698 (CC).
(ii) that the delay in obtaining such warrant would defeat the
object of the search.
[19] It is further provided in section 40 that:
(1) a peace officer may without warrant arrest any person:
(a) who commits or attempts to commit any offence in his presence;
(b) whom he reasonably suspects of having committed an offence
referred to in Schedule 1, other than the offence of escaping from lawful
custody; (Emphasis mine.)
…
(2) If a person may be arrested under any law without a warrant and subject
to conditions or the existence of circumstances set out in that law, any
peace officer may without warrant arrest such person subject to such
conditions or circumstances.
[20] These provisions (22 and 40) require the police to exercise due care and
diligence in securing a justified unlawful arrest. They serve as an empowering
role to section 12(1)( a) of the Constitution which guarantees the security and
freedom of the person including the right not to be arbitrarily deprived of freedom
without just cause.
[21] Another stimulant for this Court is section 29 of the CPA which seeks to move
beyond the arrests itself to ensure what I refer to as “empowerment of police
officers” in the exercise their duties. This section reads as follows:
“A search of any person or premises shall be conducted with strict regard to
decency and order, and a woman shall be searched by a woman only, and if no
female police official is available, the search shall be made by any woman
designated for the purpose by a police official,” (emphasis mine.)
[22] This section provides the highest standards in the execution of police officers
duty to ensure they uphold the transformative principles in the functioning of the
Police Service. It strategically operationalises the way in which the police must
fulfill their duty. It is a groundbreaking section that seek to ensure that police
officers should have a firm understanding of authority and responsibility that is
bestowed on them in ensuring stability in societies. It seeks to give substanti ve
effect to the procedural safeguards of arrest without a warrant are not relegated
to a sphere of non-significance.
[23] Therefore, the application of this framework is of necessity to determine its
significance and evolution of the principles and state liability vis-à-vis individual
rights.
ANALYSIS
[24] In this case, the evidence was consistent that the SAPS visited the applicant’s
homestead on the night in question. Thus, the contradictory evidence related to
the plaintiff’s arrest, pointing of a firearm, search and seizure, his transportation
and aspects relating to compliance and substance of effecting an arrest. Sach s J
in Minister of Safety and Security v Van Niekerk 3 provided guidance in this
regard. In that case, Sachs J filled in what may be viewed as a gap between
procedure and substance and held:
“ … [the] demonstration of the constitutionality of an arrest will almost
invariably be heavily dependent on its factual circumstances … [which are]
highly fact specific. … [and] those involved in the day -to-day exercise and
supervision of the power to make arrests are usually best positioned to
establish appropriate operational parameters concerning the discretion to
arrest … [and] the lawfulness of an arrest will be closely connected to the
facts of the situation.”4
3 Minister of Safety and Security v Van Niekerk 2007 (10) BCLR 1102 (CC).
4 Ibid paras 17-18.
[25] It is evident that police officer s are not sparred of any self -responsibility to start
by policing themselves in ensuring the prescripts of constitutional democracy as
envisaged in the CPA and SAPS Act. In a claim for damages which will have to
be tested against the conduct of the police officers, Theron J in De Klerk v
Minister of Police5 set out the context and principles to be proved and held:
(a) the applicant must establish that their liberty has been interfered with.
(b) the applicant must establish that this interference occurred
intentionally. In claims for unlawful arrest, a [applicant] need only
show that the defendant acted intentionally in depriving their liberty
and not that the defendant knew that it was wrongful to do so.
(c) the deprivation of l iberty must be wrongful, with the onus falling on
the defendant to show why it is not; and
(d) the applicant must establish that the conduct of the defendant must
have caused, both legally and factually, the harm for which
compensation is sought.6
[26] In turn, the test for reasonableness of the arrest was well articulated by Andrews
AJ in Zilwa v Member of the Executive Council for the Department of Transport
and Public Works 7 who held that it must be objectively sustainable which would
in turn raise a question whether:
“… [A] reasonable [person] in the second defendant's position and possessed of
the same information have considered that were good and sufficient grounds for
suspecting that the plaintiffs were guilty of the conspiracy to commit robbery or
possession of stolen property knowing it to have been stolen?8
The Judge went on to contextualise the test and held:
5 De Klerk v Minister of Police 2019 (12) BCLR 1425 (CC).
6 Ibid at para 14.
7 Zilwa v Member of the Executive Council for the Department of Transport and Public Works [2026]
ZAWCHC 4 citing with approval Mabona v Minister of Law and Order 1988 (2) SA 654 (SE).
8 Ibid para 43.
“…[I]n evaluating his information a reasonable man wou ld 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 libert y. 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 will justify an arrest. 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 re quires
suspicion but not certainty. However, the suspicion must be based upon solid
grounds. Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion.’’ 9
[27] In this case, during cr oss-examination, which is interlinked with arguments, the
test of reasonableness to execute the arrest withou t warrant served as a
benchmark to establish the credibility and exposition of the defendant’s
testimony. The plaintiff focused on the following issues which were recorded in
the statement. First, dagga was recorded as a drug that was found on the
applicant instead of Tik (crystal meth) that the defendant led in his chief
examination. Secondly, the defendant stated that the Tik was sent to the lab for
forensic analysis and the results were no t available since t he day it was sent for
testing. Thirdly, the defendant’s assumption about the weight of the Tik despite
its record as carrying 0.002mg in the statement. Fourthly, the pointing of a
firearm and arrest and detention without a warrant itsel f. This Court need not
conflate these factors because they are a cornerstone to determine the
lawfulness and reasonableness of the arrest. Alternatively, to establish an
lawfulness and reasonableness of the arrest. Alternatively, to establish an
unjustified arrest without a warrant.
[28] The applicant pointed out the evidence of the defence as unreliable and should
not be admitted by this Court relating to the drug and its weighting. In this
instance, the defendant confirmed the unavailability of the forensic results and
his role as the Arresting Officer ended with opening the docket and preparation of
SAP13. Thereafter, the docket was handed to Investigating Officers to do further
investigation to confirm the suspicion of Arresting Officers. The defendant
9 Mabona in Zilwa paras E-H.
conceded his mistake about the weight attached to the Tik which was recorded
as 0,002mg in the statement whilst there was no physical scale to weigh it except
for his assumption. In addition, he also conceded the mistake and attributed it to
the Detention Officer who recorded the drugs found on the applicant as “Dagga”
as opposed to “Tik”. On reply, he confirmed that he was active in searching the
applicant whilst others searched the house. This was the crux of this application
whether the defendant reasonably believed that an illegal substance was being
sold at the applicant’s homestead to an extent of executing the search and arrest
without a warrant.
[29] In the circumstances of this case, the test of justifiability of section 40(1)(b) of the
CPA seeks to establish the veracity of the information relating to the arrest itself.
During cross-examination, the defendant was not economical with the truth. He
did not deny that they received a tip off around 19h00 and opted to go and do the
search at around 23h30. The operation was conducted without a warrant for
search and arrest. He justified this approach and put before t his Court that since
it was in the evening and weekend it was impossible to apply and get it because
of the possible or existing opportunity that the drugs may be concealed or
destroyed. A reasonable suspicio n does not entail intentional wrongdoing but
involves the differentiated justification from the one alleged by the applicant.
Therefore, the defendant, on receipt of the tip -off, went to the plaintiff’s
homestead to confirm its reasonableness, which in turn informed them to execute
the search and arrest. This fits within the context of the rule of law as Nugent JA
in S v Mabena10 held:
“The Constitution… proclaims the existence of a State that is founded on the rule
of law. Under such a regime legitimate state authority exists only within the
confines of the law, as it is embodied in the Constitution that created it, and the
confines of the law, as it is embodied in the Constitution that created it, and the
purported exercise of such authority other than in accordance with law is a nullity.
That is the cardinal tenet of the rule of law. I t admits of no exception in relation to
the judicial authority of the state. Far from conferring authority to disregard the law
the Constitution is the imperative for justice to be done in accordance with law.”11
10 S v Mabena [2007] 2 All SA 137 (SCA).
11 Ibid at para 2.
[30] The context of section 40(1)(b) was expatiated by Nugent JA that the authority to
arrest without a warrant must comply with the Constitution because of its
supreme commitment to the rule of law. Section 4 0(1)(b), which was therefore
given meaning by Nugent JA, demonstrates how p olice are to exercise their
authority. Police Officers are required to exercise due care and without any act of
impunity. There was also no claim of aggression against the applicant to the
extent of undermining the application of section 29 which requires decency in
effecting arrest.
[31] The def endant might have held a reasonable suspicion to satisfy the
requirements of section 40(1)( b), however, such suspicion must be tested. The
test requires an investigation to comply with section 40(1)(b). This is al so linked
to section 13(1) of the SAPS Act which requires the “performance of du ties and
functions that are conferred to a police official by law.” This Court is stifled by the
arrest of the applicant on Friday and then taken to court on Monday, which then
places at risk the credibility of reasonableness in the execution of the arrest and
search without a warrant. The is borne by the question whether there was
investigation that will inform and ensure sustenance of the integrity and
justification of the arr est without a warrant before the court of law. This may be
attributed to section 50(1) of the CPA which requires a “person to be taken to
court within 48 hours and if they fall outside the ordinary hours should be taken
on the first ordinary court day” as in this case. I am of the view that this provision
limits the proper investigation of the alleged offence which equally tighten the
police officers in terms of ensuring their full -scale investigation of a committed
crime. The established facts were that th e defendant (Arresting Officer) ended
his role with signing off the SAP13 wherein the case is taken over by the
Investigating Officers. The investigation diary including the witness statement
Investigating Officers. The investigation diary including the witness statement
signed by Seargent Ndamase did not provide any evidence relating to the
investigation itself except for the reproduction of the statement by the Arresting
Officer (Seargent Mketu). It appears to me that there was never follow -up to
investigating the case before the appearance of the applicant in court and having
the matter prosecuted to its finality. I believe the police are constrained in their
functioning as they must comply with the rule of law as envisaged in section
50(1) of the CPA. However, does it mean the police have to take cases to court
with no prospects of prosecution let alone their success? It is my view that
prosecution was justified in declining to prosecute because of the lack of
evidence for possible success in prosecuting the case.
[32] Further, the applicant argued that if it was not for his unlawfu l arrest and
detention, he could not have been subjected to inhuman conditions. His further
subjection to pro secution, which was declined by the prosecutor, resulted in a
deteriorated relationship with his mother and members of the community that
viewed him with suspicion following his arrest. Of further concern was the death
of his dream to further his education.
[33] However, this Court is not to succumb to judicial emotions and feel sorry for the
applicant. It made a case to justify the defendant’s conduct of effecting the arrest
without a warrant. This Court’s justification was in vain because it is evident that
the arrest was never followed by an investigation to confirm the reasonable
suspicion of the Arresting Officers. The rule of la w is the cornerstone of all state
functionaries in carrying the aspirations for crime free and just societies. This
Court is also not to overreach and hide behind the application of section 50(1)
above. Of importance in the circumstances, was to highlight what could and
continues to be a challenge for police officers. The reasonableness to effect
arrest without a warrant end up not tested by a proper investigation. In turn, as all
functionaries must execute their duties within the framework of the law, this Court
is not to second -guess the law -making function of Parliament. It is my opinion,
is not to second -guess the law -making function of Parliament. It is my opinion,
despite the reasonableness of the arrest, the evidence must be considered in
totality without one segment missing with a consequent result of matters
concerning not seei ng a courtroom. Let me reiterate, the provisions of sections
20, 22, 29 and 40 of the CPA and 13(1) of SAPS Act will remain untested with a
potential to leave credible evidence without being analysed to ensure its
contribution to social change.
The determination of quantum
[34] The Constitution places great emphasis on the liberty of the person and unlawful
deprivation of freedom constitutes a “serious infringement of his constitutional
rights.”12 to freedom and security of the person and to human dignity.” The
applicant was arrested for a short period of time despite his subjection to
inhuman conditions in the cells. I am of the view that the defendant should not be
faulted in this regard because the constitutional obligation vis-à-vis the rights of
the applicant were to be balanced against each other. The applicant was taken to
court within 48 hours of his arrest, which were calculated and inclusive of the
weekend hours. I am mindful of the fact t hat the arbitrarily deprivation of freedom
and security of the person undermines the significance of the rights that are then
contextualised within the framework of section 35 of the Constitution. 13 The
interdependence of rights and values as both justifia ble and justiciable rights
serves as the cornerstone of determining the lawfulness of the alleged arrest. It
also seeks to address whether a suspicion in the circumstances of each case
was justifiable, and the arrest itself was not motivated by impunity. O n the other
hand, this Court is also of the view that rights should not be interpreted outside
the scope of responsibility.
[35] The plaintiff claimed an amount of R450 000. 00 for damages because of the
impact of the arrest without a warrant, inhuman co nditions at the detention cells
and the decline of the prosecution to prosecute because there “was no case”. He
structured the claimed amount as follows:
12 Kathree-Setiloane AJA Motladile v Minister of Police 2023 (2) SACR 274 (SCA) at para 22.
13 See Tshiqi J in Mahlangu (note 2 above) at paras 43-4.
(i) R150 000.00 for wrongful, unlawful and malicious arrest.
(ii) R150 000.00 for wrongful and malicious deten tion from the
29th of January 2021 to 01 February 2021.
(iii) R150 000.00 for contumelia.
He then prayed for the total sum:
(i) R450 000.00.
(ii) Interests on the aforesaid amount at the legal rate from the date of
service of summons to date of payment.
(iii) Costs of suit together with interest thereon at the rate calculated
from a date (14) days from the allocator. and
(iv) Alternative relief.
[36] The claim for damages should therefore be tested against its purpose and not to
enrich the aggrieved party. The courts had lo ng settled that claim for damages against
the executive should be justified within the framework of the harm suffered. The courts
are also not allowed to make awards for a simple reason that there was an alleged
unlawful arrest. The courts are to be cautio us and determine the rationality of the award
on a case -by-case basis which was expressed by Bosielo JA in Minister of Safety and
Security v Tyulu14 as he warned the courts that:
“…[They] 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.”15
[37] The plaintiff therefore, having claimed an amount of R450 000. 00 could not
quantify how he arrived at the amount claimed except for the structure of the amounts.
His Counsel, during closing argument, also con ceded that because they could not
quantify the amount, he left it at the discretion of this Court to determine the amount o f
damage to be paid. This Court discourages the conduct of this nature because it strains
14 Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA).
15 Ibid at para 26.
the judicial resources let alone the public purse. Enormous time is invested in ensuring
the quality of access to justice and only to have litigants at the end of the trial that could
not justify their case.
[38] However, having considered the evidence in totality, including the age of the
plaintiff, his prospects for the future, the nature and the short duration of his arrest and
harm cause d to his reputation, an awa rd in similarly situated cases, the lax of the
investigating officers, it is my opinion that a fair and reasonable amount of R120 000.00
for his arrest, detention and the non-prosecution of his arrest is appropriate.
[39] In the circumstances, the following order is made:
[39.1] The defendant is ordered to pay the applicant an amount of R120
000. 00.
[39.2] Interests on the amount of R120 000.00 at the legal rate from the
date of service of summons to date of payment.
[39.3] The defendant is ordered to p ay the costs of this application on
Scale B including the costs of one Counsel where so employed.
___________________________
N NTLAMA-MAKHANYA
ACTING JUDGE OF THE HIGH COURT
MTHATHA
Delivery: This judgment is issued by the Judge whose name appears herein, and its
date of delivery is deemed 27 March 2026.
Date Heard: 21; 22, January 2026; 17 February 2026
Date Delivered: 27 March 2026
Appearances:
Applicant: Mr Madubela
Instructing Attorneys: Wanga Baxa Attorneys
Defendant Advocate ND Ngadlela
Instructing Attorney: State Attorney
Mthatha