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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE HIGH COURT, GQEBERHA)
CASE NO: 2660/2023
In the matter between:
OYAMA JIJANA Plaintiff
and
MINISTER OF POLICE 1st Defendant
THE NATIONAL DIRECTOR OF 2nd Defendant
PUBLIC PROSECUTIONS
JUDGMENT
___________________________________________________________________
MAKAULA J:
A. Introduction
[1] The plaintiff issued summons against the defendants suing for three heads of
damages. However, he withdrew the claim for malicious prosecution against
the second defendant. I shall refer to the first defendant as the defendant. The
two remaining claims pertain to firstly, his arrest and detention from 9 January
2022 till 11 January 2022, when he appeared in court and secondly his further
detention by the court from 11 January 2022 until his release on bail on 21
January 2022. The plaintiff was arrested by members of the defendant on a
charge of rape. The public prosecutor eventually withdrew the charge. On the
Plaintiff issued summons on 11 August 2023.
B. Background Facts.
[2] The defendant, as it bore the onus to establish the lawfulness of the arrest,
called three witnesses namely, Miss N[...] S[...] (the complainant), Mr
Dinilesizwe Jijana (Dinilesizwe) the boyfriend of the complainant, and Captain
Madubedube.(I shall use Dinilesizwe and boyfriend interchangeably). The
plaintiff led his evidence only. He is the elder brother of Dinilesizwe.
Miss N[...] S[...].
[3] The complainant testified that at the time of the incident she was cohabiting
with Dinilesizwe at his home, 3[...] J[...] Street, New Brighton, Gqeberha. They
occupied an outside room situated in a flat behind the main house while the
plaintiff lived in the main hous e. On 16 December 2021, she was at her place
of abode with friends, the plaintiff, and family members of Dinilesizwe having
a braai and partaking of liquor. The plaintiff was also present. They continued
to drink until 21h00 when she, Dinilizwe, and the p laintiff went to Mtsiki’s
tavern where they continued to drink alcohol. The complainant and
Dinilesizwe left the tavern for home at midnight leaving the plaintiff behind.
They were drunk.
[4] They proceeded to their room. They had sexual intercourse and f ell asleep
thereafter. She was woken up by a male person who was on top of her. The
thereafter. She was woken up by a male person who was on top of her. The
male person had his penis inside her vagina. He was raping her. When she
looked closely at the person she realised that it was the plaintiff. She grabbed
the plaintiff and they grappled. She screamed and shouted at the plaintiff. A
scuffle ensued between them and she was assaulting him. The plaintiff tried to
hold her arms as a result of which she sustained bruises in her upper arms.
Her boyfriend was asleep as he had passed out due to drunkenness He
eventually woke up during the scuffle. He enquired as to what was happening
and no one responded. The plaintiff broke loose and ran into the house.
Dinilesizwe followed him to the house and later came back and enquired
about what was happening. She told him that the plaintiff was raping her. At
the time she was crying. Her boyfriend went back to the house and brought
the plaintiff back to their room and asked him what had happened. The
plaintiff did not respond. He assaulted the plaintiff.
[5] On 17 December 2021 she went to the police station and opened a case of
rape against the plaintiff. A statement was obtained from her, and she was
referred to Thuthuzela Care Center. She was examined by a health
practitioner who filled a medi cal report referred to as a J88. The nurse noted
on the J88 that the injuries on her arms and that the signs of physical assault
were consistent with the given history. On another day, she met Captain
Madubedube at New Brighton Police station. He asked if she wanted to add
anything to her statement to which she responded none. She informed him
that the plaintiff had since the day of the incident left their home and his
whereabouts were not known.
[6] On 9 January 2022, she received a telephone call from he r boyfriend who
informed her that the plaintiff was at his home. She phoned Captain
Madubedube to say that the plaintiff was at his home. Indeed, Captain
Madubedube and other police arrived and arrested him.
[7] She was asked about the withdrawal statement dated 8 February 2023 that
Captain Madubedube allegedly obtained from her. She denied having made
and signed a withdrawal statement. She only received an SMS notifying her
and signed a withdrawal statement. She only received an SMS notifying her
that her case had been withdrawn. She immediately called Mr. Khuboni,
whom she was advised was the investigator of her case, to enquire about the
message. Mr. Khuboni promised to come back to her. He never did until she
lost her work and had to go back to her home in Queenstown. She
subsequently made a statement confirming that she did not withdraw the case
and requested that her matter be re-instated.
Dinilesizwe Jijana.
[8] He confirmed the evidence of the complainant in material respects as regards
to what took place on 16 December 2021 during the day and up until they
went to sleep . He woke up to a scuffle between the plaintiff, and the
complainant. He testified this. ‘When I woke up my elder brother then went out and
ran into the house and I wondered why he was in fact, running away because we had
been having an enjoyable time all together. When I inquired from him as to what had
happened or what was happening, he did not give me a straight answer…. I then
went back to N[...]. N[...] then informed me that my elder brother had just raped
her…. I lost control over my anger and I wen t to fight with my brother… I hit him…
very much.’ (sic).
[9] He testified that his brother left after he was assaulted by him. He saw him
again on 9 January 2022 at his home. They had gathered as a family
celebrating their late father's birthday as they n ormally do each year. He had
informed his girlfriend that the plaintiff would attend the celebrations and
would alert her of his presence. Indeed, after they had visited his father's
grave, he called the complainant his girlfriend and told her that the pla intiff
was present. They had planned that because the police had been looking for
him. Indeed, after a while the police arrived and arrested the plaintiff.
Captain Madubedube.
[10] He testified that he was a member of the South African Police Service (SAPS )
working as a group commander for Family Violence and Child Protection Unit
in Motherwell police station. His primary duty was to go through the dockets,
give written instructions, and distribute them to various investigating officers.
On 21 December 2021 , he received a docket in connection with this matter.
The docket contained two statements, that of the complainant and her
boyfriend, and the J88.
The docket contained two statements, that of the complainant and her
boyfriend, and the J88.
[11] On 22 December 2021, he met with complainant to verify if her statement
captured everything. She confir med it as correct. She informed him that the
plaintiff ran away, and they do not know his whereabouts. The docket was
assigned to Warrant Officer(W/O) Khuboni to investigate the matter further.
[12] On 9 January 2021, he received a telephone call from the complainant
informing him that the plaintiff was at his home. He was off duty. He took his
car and went to the plaintiff's house having called back up to come and assist
him. The complainant pointed out the plaintiff. He approached the plaintiff,
introduced himself, and told him that he was under arrest. He explained his
legal rights in presence of the other members and why he was arresting him.
They took the plaintiff to the charge office and further explained his
constitutional rights before detaining hi m. On 10 January 2022, he charged
him. The plaintiff appeared in court the following day.
[13] He stated that he arrested the plaintiff without a warrant of arrest because he
had committed an offence of rape which was a serious offence. He stated that
section 40(1)(b) of the Criminal Procedure Act 1 permitted him to arrest the
plaintiff without a warrant of arrest. He did not play any further role thereafter
in the matter. The investigating officer took over the investigations.
[14] He testified under cro ss examination that he filled in what they called the bail
form. It is a roneo form that contains information that would assist the
prosecutor in determining whether bail should be allowed. He filled in the
information he got from the plaintiff, the compla inant, his boyfriend, and
people he found at his home. He verified his address from all of them. The
plaintiff told him that he was on bail in respect of an offence, but he failed to
record what it was. He recorded that he had no children because that was
what he told him. He reflected that the plaintiff had once escaped from
custody because his whereabouts were not known for days after the incident.
He regarded that as being escaping because he knew he had committed an
He regarded that as being escaping because he knew he had committed an
offence. He should have handed himsel f over to the police like others do. He,
however, conceded that no such entry was made in the investigation diary
reflecting efforts made to trace the plaintiff. It was only the complainant who
informed him that the plaintiff is ‘at large’ as they do not k now his
whereabouts.
1 Act 51 of 1977
[15] He testified that at the time he was inspecting the docket involving the plaintiff,
he gave an instruction to W/O Khuboni to arrest him. So, it was at that time
that he decided that he be arrested and not at the time he effected t he arrest.
He said he did not consider applying for search warrant of arrest because he
was not the investigating officer.
[16] He stated that he only knew the plaintiff to be residing at 3[...] J[...] street. He
was neither aware nor told that the plaintiff resided at 6[...] T[...] street during
16 December 2021 until 9 January 2022. He denied that the plaintiff gave the
latter as his address when he was charging him and that being the reason the
prosecutor sought verification of an alternate address. It was put t o him that
had he verified this address on 11 January 2022; the plaintiff would have been
granted bail. Bail was refused because verification of this address was
outstanding, so it was put to him. His response was that the matter would
have been postponed either way because the results of the profiling of the
plaintiff were still outstanding and the verification of the address was still part
of it. However, he deferred to the investigating officer as the person who was
tasked by the prosecutor to verify the address who was better placed to
answer what was put to him.
[17] Captain Madubedube was quizzed at length about how he made the decision
to arrest the plaintiff based on the statements of the complainant and
Dinilesizwe. His attention was drawn to the assertion by the complainant that
her ‘boyfriend beat him up and then he admitted to his brother that he raped me.’ It
was put to him that her boyfriend did not mention that on his statement. He
conceded that he did not notice that when he read the statements. He further
agreed that her boyfriend did not mention that he ass aulted the plaintiff. He
said had he picked up these two differences; he would have given instructions
that further statements be obtained to clarify these differences.
that further statements be obtained to clarify these differences.
[18] The J88 as aforementioned revealed that the plaintiff had a bruise on her left
arm. He confirmed that on the statements of both witnesses, there is no
evidence that explained how the bruise could have been sustained because
there is no evidence that the plaintiff assaulted the complainant. He was
questioned about the noncommittal findin g about rape in the J88. The
conclusion by the medical practitioner was that “no genital injuries seen,
absence of positive findings does not exclude the alleged vaginal penetration.” It
was put to him that this finding established that there was no evide nce that
supported rape in the J88. His response was, “So when I am reading the J88
there where it says it cannot be excluded that the was penetration to the vagina.
Because both had penetrated her, Dinilesizwe, as well as Oyama…. In far as the
rape itself is concerned, M’Lord it is mentioned in the J88 that vaginal penetration
cannot be excluded” (sic).
[19] Captain Madubedube mentioned that the statement re -instating the matter
was obtained on his instructions because the complainant changed her mind
and stated that she wanted the case to be re -instated. He stated that he was
taken aback by complainant’s turnaround.
[20] He said he was not at court when the matter was postponed to 21 January
2022 by agreement between the state and the legal representative of the
plaintiff. However, the entry in the investigation diary reveals that the matter
was postponed for bail profiling and bail application. He stated that his
decision to arrest the plaintiff was informed by the statement of the
complainant, that of her boyfriend, J88, and the fact that the plaintiff was not at
the given address. The defense did not call further evidence.
Oyama Jijana.
[21] The plaintiff confirmed that the complainant was his brother’s girlfriend. He
testified that he was a widower an d had three children with his late wife. He
testified that he obtained grade 12 and thereafter proceeded to Peninsula
Technikon where he obtained a Fashion Designing diploma. He was self -
employed at the time of his arrest. He was arrested by Captain Madube dube
and two other police officers who were in a marked police van at 3[...] J[...]
Steet which is home address. There were people around when he was placed
in the police van. His neighbor was standing in front of his house at the time.
in the police van. His neighbor was standing in front of his house at the time.
He cooperated with the police. He was told of the reason for his arrest. He
was detained in the police cells. He confirmed that he was familiar with what
is contained in his warning statement. He furnished 3[...] J[...] as his home
address. However, he informed Captain Madubedube th at he was resident at
6[...] T[...] street as he was still nursing his injuries. He denied that he was
evading the police. He never received a phone call from the police.
[22] He was detained with six other detainees in the police cells. The conditions
were bad. They shared one toilet which was not working. On 10 January
2022, Captain Madubedube arrived, obtained a statement, and took DNA
samples from him.
[23] He appeared in court on 11January 2022. At court, the matter was postponed
for the verification of address and the DNA results. He was transferred to St
Albans Prison where the living conditions were horrible. He was cramped into
one cell with between thirty and fifty awa iting prisoners. The detainees would
rob them of their food, clothes, and anything capable of being forcefully taken
from them.
[24] He denied that he raped the complainant let alone assaulting her. He stated
that the police had no reason to arrest him based on the statements and J88.
C. Analysis.
[25] Section 12(1) of the Constitution of the Republic of South Africa 2 and the line
of decisions by our courts 3 guarantee the right to freedom and security of a
person which includes the right not to be deprived of freedom arbitrarily and
without just cause.
[26] The defendant relied on the provisions of section 40 (1) (b) of the Criminal
Procedure Act 4 (the CPA). Section 40(1)(b) provides: ‘ 40 Arrest by peace
officer without warrant
(1) A peace officer may without a warrant arrest any person-
(a) …..
(b) whom he reasonably suspects of having committed an offence
referred to in Schedule 1, other than the offence of escaping from
lawful custody;’
2 The Constitution of the Republic of South Africa, 1996
3 S v Coetzee 1997 (3) SA 527 (CC); 1997 (4) BCLR 437 (CC).
4 Act 51 of 1997
[27] The jurisdictional facts for a section 40(1)(b) defense are that (i) the arr est
must be by a peace officer; (ii) the arrestor must entertain a suspicion; (iii) the
suspicion must be that the suspect (the arrestee) committed an offense
referred to in Schedule 1; and the suspicion must rest on reasonable
grounds5.Once the jurisdict ional factors have been established the duty to
arrest arises.6
[28] It is common cause that Captain Madubedube is a peace officer and that rape
is a Schedule 6 offence and more serious than Schedule 1 offences. The
contentious issue is whether Captain Madubedube had reasonable grounds to
suspect that the plaintiff committed the offence and based on the information
before him, he acted reasonably in arresting the plaintiff.
[29] The attack on the lawfulness of the arrest is premised on various fronts
starting on the alleged conflict in the evidence of both Captain Madubedube
and the complainant regarding her statement. The criticism is that the
complaint disavowed her statement by stating that it was not read back to her
after it was taken by Captain Madubedube, something which the latter denied.
Further, regarding her statement, it was at odds with that of her boyfriend and
her evidence in court. The first issue taken in this regard is that the
complainant mentioned in her statement that the pla intiff admitted to
Dinilesizwe that he raped her. However, that did not appear in Dinilesizwe’s
statement or mentioned by her in her evidence. The other aspect is that she
alleged that the plaintiff had assaulted her boyfriend, something which did not
appear in her statement nor that of Dinilesizwe. The argument therefore is
that a reasonable police officer in the position of Captain Madubedube based
on these anomalies, would not have entertained a reasonable suspicion which
would have led to his arrest and detention.
[30] I disagree with these submissions. To nit pick at this stage these ‘anomalies’
[30] I disagree with these submissions. To nit pick at this stage these ‘anomalies’
amount to being wise after the event. At the time of arrest the complainant’s
statement was not an issue. On its own, it was sufficient for him to have
opined t hat an offence had been committed. The discrepancy between the
5 Duncan v Minister of Law and Order 1986 (2) SA 805 (A) 818G-H.
6 Minister of Safety and Security v Sekhoto and Anothoer 2011 (1) SACR 315 (SCA) at paras 6 and
28
complainant’s and Dinilesizwe’s statements could not be material such that it
could be argued that Captain Madubedube did not exercise his discretion to
arrest reasonably. Similarly, whether the plaintiff was naked and assaulted by
Dinilesizwe when he woke up, is not a factor that may have influenced the
arresting officer not to exercise a discretion to arrest. To view it that way would
be to adopt an armchair approach. Even viewing these factor s cumulatively, I
do not find that Captain Madubedube acted unreasonably in the arresting the
plaintiff. The criticism is unfounded.
[31] The arrest is assailed as unlawful because Captain Madubedube should have
realised that the rape allegation is not sup ported by the J88 and even
complainant’s statement is silent on how the bruise reflected in the J88 was
sustained. The plaintiff contended that the conclusion that there was assault
on the complainant is ‘ somewhat spurious and this much the good Captain ha d to
accept’. The aspect of the J88 cannot be a factor determinant of whether the
arrest should not have been effected. The J88 did not exclude the possibility
that rape did occur. This issue, because of the conclusion reached by the
medical practitioner, should not be held to be a factor which should have
influenced or tainted the discretion vested in Captain Madubedube in favour of
not arresting the plaintiff. Even taken in conjunction with the factors
adumbrated above, it cannot be said that based on it, he should not have
formulated a reasonable opinion to arrest the plaintiff. This, to me was a
neutral factor left for the court to decide whether rape did take place or not.
[32] In his Heads of Argument, the plaintiff placed emphasis on the contradictio ns
or inconsistences between the evidence of the complainant and her boyfriend
in court. This criticism eludes me as regards its relevance pertaining to the
decision to arrest. Further, the plaintiff argued that had Captain Madubedube
decision to arrest. Further, the plaintiff argued that had Captain Madubedube
considered the conten t of Dinilesizwe’s statement, he would have seen fit to
interview Siyanda Jijana (Mr Jijana), an independent person, who is
mentioned in his statement as being present at the scene. I do not agree with
this conclusion. The reason being that at the time of the alleged rape, they
were the only three people in the room albeit that Dinilesizwe had passed out
due to over - indulgence. Mr Jijana would not have witnessed the rape
incident. He could only shed light regarding the assault which is not disputed
by Dinilesizwe.
[33] The plaintiff took issue with the fact that the alleged rape took place in the
same bed Dinilesizwe was sleeping in with the complainant. He regarded that
as ‘ a bizzer nature of allegation’ (sic). This characterisation of events, which
should have influenced the arrest, loses sight of the fact that the evidence at
the time was that the complainant and Dinilesizwe had been drinking
throughout the day until midnight and were both drunk. They had sexual
intercourse and Dinilesizwe thereafter passed out. He only woke up during the
scuffle. Those are the circumstances under which the alleged offence took
place. It is probable that the plaintiff, who was also drinking with them
throughout and noticed their level of intoxication, took advantage of th at. This
submission with respect, cannot hold water. As reflected in preceding
paragraphs, especially in his evidence, Captain Madubedube states the
reasons that led him to arrest the plaintiff. To me those reasons are
reasonable and justified the arrest of the plaintiff.
[34] The plaintiff argued that the contention by the defendant that its members
played no role in the further detention of the plaintiff's after his post is first
appearance is bad in fact and in law. This argument is based on what appears
from the investigation diary that the prosecutor gave instructions to verify the
alternate address of the plaintiff. The criticism is that, had the alternative
address been investigated prior to the arrest of the plaintiff, his further
detention would no t have been necessary. The evidence shows that the
plaintiff, in his warning statement, gave Captain Madubedube his home
address as 3[...] J[...] Street and no other address. It is further his evidence
that the plaintiff never mentioned to him that he also res ided at 6[...] T[...]
Street. Even the plaintiff himself did not say he informed Dinilesizwe and the
Street. Even the plaintiff himself did not say he informed Dinilesizwe and the
complainant that he was temporarily residing at his sister’s house. That is why
Dinilesizwe and the plaintiff hatched a plan to notify the police once he
attended the celebration in honour of their late father's birthday. Therefore,
6[...] T[...] Street was never an issue or mentioned prior to the arrest of the
plaintiff. The police would not have been able to verify an address of which
they were not aware. Having reg ard to the evidence before me, the calling of
the investigating officer would not have assisted in this regard because he
was not involved in the arrest of the plaintiff and therefore would not have had
to verify the address anyway before the first appearance of the plaintiff.
[35] Criticism has been levelled against the defendant for having introduced in
discovery the issue of the withdrawal statement which was obtained by
Captain Madubedube. The plaintiff contended that such evidence destroyed
the credibility of the complainant and Captain Madubedube. The issue at play
is that the complainant denied having made the withdrawal statement
whereas Captain Madubedube said she did. There are problems with the
evidence of both witnesses. The withdrawal statement though commissioned
is not signed by the complainant. That discrepancy is not explained
meaningfully, especially in the backdrop of the denial by her. However, what
transpired from the evidence is that she accepted that there were discussions
between her, the plaintiff’s family and even the public prosecutor where the
issue was mooted. Having met the public prosecutor, they parted in the note
that she was going to consider the issue of withdrawing the charges. That
never happened as explained above. To me, with this background, I do not
find that to be fatal to the case of the defendant. The contradiction does not
give credence to the argument by the plaintiff that this has led to failure by the
defendant to discharge its onus of establishing that the arrest was lawful. The
arrest had taken place at that stage, and the matter was pending in court.
[36] The plaintiff submitted that the police had an opportunity to secure a warrant
of arrest against the plaintiff because they had ample time to do so. This
argument loses sight of the fact that even though the plaintiff was arrested on
the 23rd day after the commission of the offence, the plaintiff was at large.
The police did not know where to find him. That is clear from the evidence.
The police did not know where to find him. That is clear from the evidence.
Captain Madubedube had to a ct swiftly upon being advised that he had been
seen by the complainant. He had to place himself on duty as he was off that
day to an extent that he used his personal motor vehicle. The exigency of the
situation caused him to act immediately when he receive d the information. It
must be borne in mind that the investigating officer was not available at that
moment, and the situation required him to act immediately. I do not agree with
the submission that Captain Madubedube was found ‘ wanting hopelessly’ in
this regard. His explanation is plausible. It is further unfair to characterise his
evidence about the plaintiff being at large as a ‘concocted’ assertion. As
previously stated, both the complainant and Dinilesizwe testified about this
fact and how it they le d to the arrest of the plaintiff. The insinuation by the
plaintiff that he had a vested interest in the matter is rather unfortunate.
[37] Based on the facts of this matter, I am unable to find that Captain
Madubedube did not assess or analyse the information he had at the time of
arresting the plaintiff ‘flighty or arbitrarily’ and on an unreasonable suspicion. 7
Running the risk of repetiti on, he satisfied himself by consulting with the
plaintiff to verify the veracity of her statement, read the docket thoroughly
before the arrest and other factors alluded to previously. I find nothing
irrational or arbitrary in his exercise of the discretio n vested in him as a peace
officer in the circumstances.
[38] The other contention by the plaintiff is that the defendant is responsible for his
further detention from the period after his first appearance. This is primarily
because the prosecutor sought t he verification of the plaintiff’s physical
address. The argument is that the failure by the police to verify/ignore/ refusal
to seek out that information is ‘foundational principle to malice and or
recklessness. I have dealt with these aspects above when dealing with
evidence. I need not repeat all what I have said about them.
[39] The complainant and Dinilesizwe were not aware that the plaintiff was at their
sister’s place, nor did he inform anyone of that fact. The issue of an alternate
address came only when the prosecutor considered bail presumably because
the statements revealed that they resided in the same address and
particularly the warning statement. Furthermore, there is no evidence that the
police opposed the granting of bail.
[40] There is no evidence that the docket got lost at some point. Captain
[40] There is no evidence that the docket got lost at some point. Captain
Madubedube amply explained that he merely deals with the inspection of
dockets once they are brought from court by the investigators. In this case,
nothing suggests that the plaintiff languished in p rison because of the
7 See Mabona & Another v Minister of Law and Order & Others 1988 (2) SA 654 (SE) para 654E-
unavailability of the docket. Nothing hinged on it. I therefore find no role or
influence played by the members of the defendant in the further detention of
the plaintiff.
D. Costs.
[41] The defendant has incurred costs in defending the a ction brought against it. It
has been successful in doing so. There is no reason that I should depart from
the norm that cost should follow the results.
[42] Consequently, I make the following order:
The action is dismissed with costs.
________________________
M MAKAULA
JUDGE OF THE HIGH COURT
Appearances
For the Plaintiff : Mr Magqabi
Instructed by : MAGQABI SETH ZITHA ATTORNEYS
For the Defendant : Adv Jiba
Instructed by: : STATE ATTORNEYS
Date heard : 05 September 2025
Judgment delivered : 28 April 2026