IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 21685/2022
In the matter between:
BAXOLELE MAKINANA Plaintiff
and
MINISTER OF POLICE Defendant
Case number 21684/2022
And in the matter between:
SIYABONGA MCOTSHANA Plaintiff
and
MINISTER OF POLICE Defendant
Coram: Van Zyl, AJ
Heard on: 28-29 May 2025; 7-8 August 2025; 11 February 2026
Judgment: 15 April 2026
Summary: Claim for damages arising from alleged unlawful arrest and detention –
not proven on a balance of probabilities that discretion to apply for J50 warrants of
arrest improperly exercised – actions dismissed
___________________________________________________________________
ORDERS
1. Under case number 21684/2022, the plaintiff’s claims are dismissed, with
costs, including counsel’s fees on Scale B.
2. Under case number, 21685/2022, the plaintiff’s claims are dismissed, with
costs, including counsel’s fees on Scale B.
JUDGMENT
VAN ZYL, AJ:
Introduction
1. These two actions were heard together because they are based on
substantially the same set of facts. The claims arose following the plaintiffs’
arrests following a kidnapping that had taken place on 5 December 2018 in
Khayelitsha, in which it was the alleged that the plaintiff were involved.
2. The plaintiffs are both members of the South African Police Service (SAPS).
They each seek judgment in the sum of R620 000,00 against the defendant
as delictual damages, arising from an alleged unlawful arrest (pursuant to an
arrest with a duly issued (“J50”) warrant) and detention. Mr Mcotshana was
arrested at his home, whilst Mr Makinana, having learnt of the existence of
the warrant, handed himself in at the Somerset Weste police station.
3. Only Mr Makinana testified at the hearing . Mr Mcotshana could not testify ,
apparently due to ill health.
4. Counsel, who appeared for both plaintiffs, assured the court that Mr
Mcothana’s evidence would merely have been a repeat of Mr Makinana’s
evidence.
The plaintiffs’ cause of action
5. The plaintiffs’ particulars of claim were substantially similar . They challenged
the lawfulness of their arrests, which were effected with a duly issued warrant
obtained by Warrant Off icer Yolande Te Baerts on 18 January 2019 , on
counts of kidnapping, robbery and extortion. This was pursuant to
investigations conducted after consultation with SAPS members Elton Beal
and Virginia Nissen in conjunction with recorded complaints and statements
made by victims, including Mr Mahama Labou Boukari, Mr Abdi Aden
Mohamed, and Mr Abdi Kariim Hassan Noor. The plaintiffs’ involvement was
also implicated by a suspect, Mr Nongauza.
6. Although the cases were somewhat widely pleaded, o ver the course of the
trial the issue narrowed solely to whether W/O Te Baerts had reasonable
grounds upon which to request the prosecuting authorities to issue warrants
of arrest. In other words, should she , instead of having sought warrants,
have considered other measures to ensure the appearance of the plaintiffs
before a court? The question to be answered , namely whether the plaintiffs’
arrests and subsequent detention w ere unreasonable and unlawful in the
circumstances, is thus to be viewed in this context.
7. The plaintiffs’ counsel put the issue as follows: the plaintiffs’ case is
predicated on the failure by the arresting officer to conduct an investigation to
establish reasonable grounds and thereafter make a value judgment prior to
taking a decision to apply for a warrant of arrest. There are two stages
applicable in this matter. The first is the assessment of the evidence to
establish reasonable grounds. The second pertains to the decision to choose
the manner of arrest. The plaintiffs’ case concerns the f irst stage of the
enquiry. The plaintiffs say that, because these cases involved the arrest of
SAPS officials by their colleague, she (W/O Te Baerts) should have applied
caution. She had a discretion not to apply for the arrest warrants, and she
caution. She had a discretion not to apply for the arrest warrants, and she
should not have done so without affording them an opportunity of explaining
themselves beforehand.
The plaintiff’s case and the relevant evidence
8. The pertinent evidence led was that of Warrant Officer Yolande Te Baerts for
the defendant, and one of the plaintiffs, Mr Makinana.
9. The plaintiffs’ pleaded, and Mr Makinana said so in evidence, that at the time
of their arrests, W/O Te Baerts denied the m an opportunity to present facts
which could have enabled her to exercise her discretion properly to not effect
the arrest s or, if she had engaged with them on an earlier occasion, she
would not even have had to apply for warrants of arrests.
10. W/O T e Baerts testified , however, in detail, that she had made sure to
exercise caution precisely because the plaintiffs were SAPS members. She
was an impressive witness who came across as a dedicated officer who took
her duties seriously. She took care to grant the plaintiff s due procedural
considerations as soon as Mr Nongauza mentioned that SAPS members
were involved in the kidnapping, robbery and extortion case . She pointed out
during her testimony that the plaintiff s failed to provide alibi s, and in stead
chose to state that they would speak to their lawyers. Her evidence was that
“… and like I explained because like I explain when they are saying now I
denied them the opportunity to present facts when I obtain a warning
statement I specifically explain to them if you give me your version I can
follow up on whatever you are telling me.”
11. The warning statements on record bear this out. The plaintiffs were unwilling
to given any explanation at the time when W/O Te Baerts gave them the
opportunity to do so.
12. The plaintiffs’ version, as revealed during cross -examination and put to W/O
Te Baerts , was to the effect that the plaintiff s were involved in a crime
prevention operation targeted at Somalians, ostensibly the complainants,
when the abduction under consideration took place. One wonders why such
explanation – which provides both an alibi and an excellent excuse for being
connected to the scene of the crime – was not provided to the SAPS
members involved in the investigations, including W/O Te Baerts, whether
before or even after she had applied for the issue of the warrants of arrest.
13. In the circumstances, the explanation proffered in court has an air of
improbability about it. This is strengthened by the fact that W/O Te Baerts
explained why such an operation could not lawfully have been undertaken
without the plaintiffs having gone through the proper channels to obtain
authorisation therefor. The plaintiffs did not demonstrate compliance with any
of the procedural requirements for the approval of such an operation, apart
from justifying their conduct by stating that they did not want other SAPS
members to steal their thunder when they did manage to apprehend any
suspects. W/O Te Baerts testified that the plaintiffs were at least supposed to
have been acting under the orders of a commander, and they should have
had a coordinated operational plan even when they were involved in an
operation whilst off -duty, as the plaintiffs claimed they were. Mr Makinana
could not give any satisfactory explanation for the unregulated and
unauthorised manner in which he testified they had gone about th e alleged
secret operation. As far as credibility and probability are concerned, I prefer
the evidence of W/O Te Baerts over that of Mr Makinana in this respect.
14. The plaintiffs further averred that the applicant for a warrant was not based
on information gathered or emanating from an investigation ; rather, it was
based on speculation, guesswork , or various machinations between other
accused involved. In her evidence, however, W/O Te Baerts was careful to
explain the course of her investigation, in particular after Mr Nongauza
provided a statement under section 204 of the CPA, as well as a confession,
implicating the plaintiffs in the crime.
15. The plaintiffs, however, submit that W/O Te Baerts’s actions gave the
15. The plaintiffs, however, submit that W/O Te Baerts’s actions gave the
impression that she did not care about the plaintiffs. They criticised her for
completing the warning statements only after their arrests, and asked them to
give their version only upon discussing the warning statement with them.
She relied to some extent on a photographic identity parade that took place
after the arrest. The complainant himself could not identify the plaintiffs as
the perpetrators of the crime. In short, she failed to apply her mind before
applying for arrest of the plaintiffs, ad her decision was irrational.
16. There is no doubt that W/O Te Baerts, as the SAPS detective tasked with the
case, had a duty to conduct investigations regarding the kidnapping and
robbery and extortion case. In Groves N.O. v Minister of Police 1 it was held
that:
“[60] Applying the principle of rationality, there may be circumstances where the
arresting officer will have to make a value judgment. Police officers exercise public
powers in the execution of their duties and “[r]ationality in this sense is a minimum
threshold requirement applicable to the exercise of all public power by members of
the executive and other functionaries”. An arresting officer only has the power to
make a value judgement where the prevailing exigencies at the time of arrest may
require him to exercise same; a discretion as to how the arrest should be affected
and mostly if it must be done there and then.”
17. The evidence showed that she did so - she considered the information
received from the operation involving Sergeants Beal and Nissen, Mr
Nongauza’s section 204 statement and confession, and a photographic
identification parade. These aspects were not perfect but they provided a
basis for what could, in the circumstances, be considered a reasonable
suspicion. Mr Makinana in fact conceded under cross -examination that the
situation warranted an investigation , and that W/O Te Baerts was performing
one.
18. Much was made of the fact that she interviewed crucial suspects (known as
Sean and Mike) only after having arrested the plaintiffs. These people could
have shared light on whether the plaintiffs were involved in the commission of
the crime. It was however no secret that the investigation was continuing.
There was never a suggestion that the investigation was complete at the
There was never a suggestion that the investigation was complete at the
1 2024 (4) BCLR 503 (CC) para 60.
stage of the plaintiffs’ arrests. One must be careful not to consider the matter
solely with the considerable benefit of hindsight.
The defendant’s case
19. The defendant's defence is based upon two statutory provisions, namely
sections 43 and 50(1) of the Criminal Procedure Act 51 of 1977 (CPA).
20. Section 43 of the CPA provides as follows:2
“43 Warrant of arrest may be issued by magistrate or justice
(1) Any magistrate or justice may issue a warrant for the arrest of any person upon
the written application of an attorney -general, a public prosecutor or a
commissioned officer of police-
(a which sets out the offence alleged to have been committed;
(b) which alleges that such offence was committed within the area of jurisdiction
of such magistrate or, in the case of a justice, within the area of jurisdiction of
the magistrate within whose district or area application is made to the justice
for such warrant, or where such offence was not committed within such area
of jurisdiction, which alleges that the person in respect of whom the
application is made, is known or is on reasonable grounds suspected to be
within such area of jurisdiction; and
(c) which states that from information taken upon oath there is a reasonable
suspicion that the person in respect of whom the warrant is applied for has
committed the alleged offence.
(2) A warrant of arrest issued under this section shall direct that the person
described in the warrant shall be arrested by a peace officer in respect of the
offence set out in the warrant and that he be brought before a lower court in
accordance with the provisions of section 50.
(3) A warrant of arrest may be issued on any day and shall remain in force until it is
cancelled by the person who issued it or, if such person is not available, by any
person with like authority, or until it is executed.”
2 My underlining.
21. Under section 44 of the CPA a warrant of arrest issued under any provision of
the CPA may be executed by a peace officer, and the peace officer executing
such warrant shall do so in accordance with the terms thereof.
22. Section 50(1) of the CPA, in turn, provides as follows:
"50 Procedure after arrest
(1)(a) Any person who is arrested with or without warrant for allegedly
committing an offence, or for any other reason, shall as soon as
possible be brought to a police station or, in the case of an arrest by
warrant, to any other place which is expressly mentioned in the
warrant.”
23. It is common cause that following the first appearances in the magistrates’
court, they were duly remanded in custody due to the seriousness of the
offence, the sensitivity of the investigation at that particular stage , and the
fact that investigations were ongoing as other suspects were still to be
located. During cross -examination of W/O Te Baerts she was questioned
about her initial opposition to the grant of bail. Ultimately, however, it was
common cause on the evidence (and in fact pleaded in the particulars of
claim) that the State elected not to oppose bail.
24. I agree, however, with the submission made by the defendant’s counsel that
from the essence of the evidence adduced and the substance of the plaintiffs’
attack on the conduct of W/O T e Baerts, it appeared that the plaintiffs
contended that an arresting officer such as W/O Te Baerts must, before
applying for a warrant of arrest, ensure that there is sufficient evidence to
prove the guilt of an accused person. This contradicts the essence of what
constitutes a reasonable suspicion as envisaged in the CPA. Although the
notion of a “r easonable suspicion ” often arises in situation s of an arrest
without a warrant (under section 40(1)(b) of the CPA ), its meaning as
considered in various judgments over the years is relevant for the purposes
of assessing the issues raised by the plaintiffs.
25. Did W/O Te Baerts, an experienced officer, conduct herself reasonably in the
situation she was faced with ? In Minister of Safety and Security v Swart 3 the
Supreme Court of Appeal (SCA) held as follows:
"[20] It is furthermore trite that the reasonableness of the suspicion of any
arresting officer acting under s 40(1) (b) must be approached objectively. The
question is whether any reasonable person, confronted with the same set of
facts, would form a suspicion that a person has committed a schedule 1
offence".
26. From the evidence led it is clear that t he particular set of facts that W/O Te
Baerts was confronted with was that of a complaint involving a series of
serious crimes, including kidnapping, robbery and extortion. She was
confronted with the contents of Mr Nongauza’s section 204 statement, the
confession, the results of interviews with the group of SAPS members
comprising of Beal and Nissen and their statements, apart from other aspects
that arose in the course of her investigations.
27. The plaintiffs say that the confession as it stands could not have been used
against the plaintiffs, because of the provisions of section 219 4 of the CPA.
This is of course so, but the fact remains that the confession, implicating the
plaintiffs, was but one of the factors that W/O Te Baerts had to consider in the
exercise of her discretion whether to apply for a warrant of arrest. The fact
that the confession would not have been used in a trial in due course was a
different matter, to be considered in a different context.
28. On W/O Te Baerts’s application for the J50 warrant, and what is expected of
a SAPS member in her position, the following passage s from the SCA in
Minister of Safety and Security v Lincoln5 are instructive:
3 2012 (2) SACR 226 (SCA) para 20. My emphasis.
4 “No confession made by any person shall be admissible as evidence against any other
person.”
5 2020 (2) SACR 262 (SCA) paras 44-45. My emphasis.
"[44] Lincoln (as plaintiff) was required to prove that members of the SAPS –
in particular Knipe and Rossouw – had acted without reasonable and
probable cause. The phrase has been held to mean an honest belief founded
upon reasonable grounds that the institution of proceedings is justified. The
concept involves both a subjective and an objective element.
[45] The material portions of the affidavit of Smith which relate to the charges
brought against Lincoln are set out earlier. The facts set out in Smith's
affidavit which relate to the charges instituted were not seriously contested.
What Lincoln set out to achieve in the trial was to establish his innocence. It
is to this end that his evidence was directed. But this fell far short of
establishing the absence of reasonable and probable cause in respect of
which he bore the onus. Knipe and Rossouw had obtained statements from
numerous witnesses in respect of each docket. Some incriminated Lincoln
but others were favourable to him. All of this – incriminatory and exculpatory
– were placed before Bouwer. It was Bouwer's assessment of all the material
before him in the dockets that led to the ultimate decision by first the
Attorney-General and secondly, the NDPP to proceed with the charges.
Objectively reasonable and probable cause can only be gleaned from an
analysis of the contents of the dockets. It involved the weighing up of the
evidence favourable to Lincoln against that incriminating him and testing the
averments contained therein against the objectively established facts and the
real evidence contained in the docket. There is no evidence that Knipe and
Rossouw actively sought to persuade the Attorney -General to institute the
prosecution. To the extent that they may have expressed their views as to
the case made in the dockets, there is nothing untoward about such conduct.
More was required".
29. In Lincoln’s case, Knipe and Rossouw were SAPS members who carried out
29. In Lincoln’s case, Knipe and Rossouw were SAPS members who carried out
the investigation in which Lincoln was implicated and was charged for certain
criminal offences for which he was later acquitted. T he SCA concluded as
follows:6
"[53] Lincoln accordingly failed to establish the alleged conduct attributed to
Knipe and Rossouw in his pleadings. It follows that he did not establish that
6 Lincoln supra para 53. My emphasis.
they had wilfully placed false evidence before the Attorney -General or that
they had no honest belief in the credibility of the statements presented. They
left the decision to prosecute or not to the Attorney -General. On these
additional grounds the Minister cannot be held liable".
30. In Mabona and another v Minister of Law and Order and others 7 the court
stated that the reasonableness of a suspicion for the purposes of s 40(1)(b)
should be considered objectively : would a reasonable person in the position
of the relevant officer presented with the same information, have considered
that there were good and sufficient grounds for suspecting that the plaintiff
was involved in the crime under consideration:
"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 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 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. However the suspicion must be based upon solid grounds".8
31. It cannot, on the available evidence, be said that W/O T e Baerts acted
unreasonably or that her conduct was malicious in some way . As a
reasonable police officer, in addition to her investigati ve training, she formed
a suspicion that the plaintiff s might be involved in the crime , as they were
implicated (whether wrongly or correctly) by Mr Nongauza. In any event, W/O
Te Baerts indicated that she was continuing with her investigations as further
suspects, known as Mike and Shaun Magoda , were still on the run. Mr
Magoda was only located and arrested in 2020, a year and two weeks after
the commission of the crimes, and Mike is still at large.
the commission of the crimes, and Mike is still at large.
32. The facts that W/O Te Baerts was faced with constituted grounds upon which
a reasonable suspicion that the offence was committed could be reasonably
7 1988 (2) SA 654 (SE) at 658E-H.
8 Mabona supra at 658H. My emphasis.
entertained. She testified that she did not lightly link the plaintiffs with the
alleged offence s as she harboured no ill feeling towards them (they were,
after all, her colleagues) but was guided by the seriousness of the situation
she was faced with. She briefed and communicated with the D irectorate of
Public Prosecutions in the course of applying for assets warrants.
33. W/O Te Baerts testified that the purpose of her application for the J50 warrant
was to ensure that the serious allegations and factors already in her
possession in the course of her continuing investigation are properly
considered by the Director of Public Prosecutions. There was no malicious
intent on her part. Under cross -examination Mr Makinana conceded that W/O
Te Baerts acted as a reasonable police official would in terms of her training
in dealing with the nature of offences that plaintiff was implicated in. His
contention was only that “it was supposed to be done correctly ” and that “she
did not complete the investigation ”. This further concession puts paid to the
allegations that W/O T e Baerts was not conducting an investigation and that
her application for a warrant was “only based on speculation ” and on “guess
work”.
34. The concession is apt, further, as it was W/O Te Baerts’s evidence that the
application for the warrant and arraignment of the plaintiff s was as a
consequence of due legal process , as she was firm in her suspicion that the
plaintiffs were potentially involved in the incident. The plaintiffs ’ insistence
that she “should have done more” before applying for arrest warrants is easily
said with the benefit of hindsight, 9 and disregards the delicacy of the situation
described by W/O T e Baerts under cross -examination. The involvement of
foreign nationals as victims and the potential of imminent exposure to danger
to them required that she be considerate and act decisively and carefully.
She was very much aware of the delicacies of this situation.
She was very much aware of the delicacies of this situation.
9 See Roman’s Transport v Zihlwele [2015] ZASCA 13 (13 March 2015) para 11 in relation to
the need to guard against adopting an armchair critic approach.
35. In Mawu v Minister of Police10 the court disagreed with the proposition that for
a reasonable suspicion to be formed the quality of the information upon which
the arrestor acts must be analysed and assessed and that acting on such
information if the quality thereof has not been subjected to scrutiny will render
the arrest unlawful. Seen in this light, the conduct of W/O Te Baerts displayed
reasonableness of the conduct of an officer to entertain a suspicion that a
suspect was implicated. Her evidence was candid and consistent with , and
indicated that she had conducted herself with the objectives of s ection 43 of
the CPA in mind.
36. I have indicated earlier that it was only during the trial that the plaintiffs raised
a potentially exculpatory explanation. This was that the plaintiffs were part of
a team conducting a secret crime -busting operation, organised by SAPS, at
the time that Mr Nongauza was arrested.
37. This explanation did not withstand scrutiny under cross -examination. Mr
Makinana even resorted to testifying that Mr Mcotshana could have been on
his own mission when the kidnapping, robbery and extortion took place.
38. In these circumstances, I cannot agree with the plaintiffs’ counsel’s
submission that the discretion to apply for the J50 Warrant was properly not
exercised. This is in addition to the clearly disproved allegation that W/O Te
Baerts denied the plaintiff s an opportunity to present facts which could have
enabled her to exercise her discretion properly to not effect the arrest s. The
plaintiffs themselves were unwilling to disclose anything exculpatory when
they were asked to do so.
Discretion and onus
39. In Divisional Commissioner of the South African Police, Witwatersrand Area,
and others v SA Associated Newspapers Ltd and another ,11 the SC A
discussed the intention of the legislature and the onus on a person disputing
10 2015 (2) SACR 14 (WCC) para 31.
11 1966 (2) SA 502 (A) at 512.
that the basis for their arrest was for purposes other than investigations to
bring them to court within 48 hours to answer to specific charges:
"All that need be said for the purposes of the point under consideration is that an
exercise of the discretion in question will be clearly unlawful if the arrestor knowingly
invokes the power to arrest for a purpose not contemplated by the legislator. But in
such a case, as is generally the rule where the exercise of a discretion is questioned,
the onus to establish the improper object of the arrestor will rest on the arrestee".
40. As the plaintiffs ’ pleaded case and evidence only questioned the exercise of
W/O Te Baerts’s discretion, the plaintiff s failed to discharge the onus
mentioned above. It was not sufficient simply to imply that she should have
done more or completed the investigation before applying for the warrant s or
arresting the plaintiffs.
41. The plaintiffs argued th at various methods to secure a suspect’s presence in
court are contained in section 38 of the CPA. The methods are summons,
written notice, indictment, and arrest. The section does not rank the methods
in terms of preference. In Minister of Safety and Security v Sekhoto and
another12 the SCA stated thus:
“[54] The present debate arose in the high courts by reason of the last
sentence (which I italicise below) of a dictum by Schreiner JA in Tsose (at
17G–H) which reads:
‘An arrest is, of course, in general a harsher method of initiating a
prosecution than citation by way of summons but if the circumstances exist
which make it lawful under a statutory provision to arrest a person as a
means of bringing him to court, such an arrest is not unlawful even if it is
made because the arrestor believes that arrest will be more harassing than
summons. For just as the best motive will not cure an otherwise illegal arrest
so the worst motive will not render an otherwise legal arrest illegal. . . .
so the worst motive will not render an otherwise legal arrest illegal. . . .
What I have said must not be understood as conveying approval of the use of
arrest where there is no urgency and the person to be charged has a fixed
and known address; in such cases it is generally desirable that a summons
12 Supra para 54.
should be used. But there is no rule of law that requires the milder method of
bringing a person into court to be used whenever it would be equally
effective.”’
42. The fact remains, however, that W/O Te Baerts had a discretion. . Minister of
Law and Order and another v Dempsey 13 discussed the general principle as
follows:
"Once the jurisdictional fact is proved by showing that the functionary in fact formed
the required opinion, the arrest is brought within the ambit of the enabling legislation,
and is thus justified. And if it is alleged that the opinion was improperly formed, it is
for the party who makes the allegations to prove it . There are in such a case two
separate and distinct issues, each having its own onus (Pillay v Krishni and Another
1946 AD 946 at 953). The first is whether the opinion was actually formed, the
second which only arises if the onus on the first has been discharged or if it is
admitted that the opinion was actually formed is whether it was properly formed."
43. In Minister of Safety and Security v Sekhoto and another 14 it was held that
"once the jurisdictional facts have been established it is for the plaintiff to
prove that the discretion was exercised in an improper manner. This
approach was adopted in Duncan (at 819 B -D) as being applicable to attacks
on the exercise of discretion under Section 40(1)(b)."
44. In Duncan v Minister of Law and Order 15 the SCA³⁴ stated as follows with
regard to the relationship between the purpose of the arrest and the
lawfulness and reasonableness thereof:
"I therefore share the view of Van Dijkhorst J that an arrest without warrant is
not unlawful merely because the ar restor intends to make further
investigation before deciding whether to release the arrestee or to proceed
with a prosecution as contemplated by s 50 (1). If the object of the arrestor is
to do just that, it cannot be said that he acted with an extraneous or ulterior
13 1988 (3) SA 19 (A) at 38G. Emphasis supplied.
13 1988 (3) SA 19 (A) at 38G. Emphasis supplied.
14 2011 (5) SA 367 (SCA) para 46, and see the discussion at paras 48-50. Emphasis supplied.
15 [1986] 2 All SA 241 (A) para 30.
purpose such as Schreiner JA had in mind in Tsose's case. But that was also
the law under the old Act. Put negatively, an arrest is unlawful if the arrestor
has no intention of bringing the arrestee before a court".
45. In my view, the plaintiffs could not discharge the onus of showing that the
purpose of their arrests was anything else but to achieve the ends of justice.
46. Insofar as the plaintiffs suggest that “a less invasive means ” to bring an
accused person to justice is a further jurisdictional requirement to be
considered in evaluating the exercise of a discretion such as the one in the
present case, this goes against the prevailing precedent . As stated in
Reynolds v Minister of Safety and Security 16 the evidence of the arrestor,
W/O Te Baerts in this instance, should stand scrutiny and point to a proper
exercise of discretion in that the opinion she formed was proper in the
circumstances. It was for the plaintiff s to prove through evidence that the
opinion was improperly formed.
47. W/O Te Baerts, in justifying her decision to apply for the warrants, testified
that due to the nature of the offence she had to take the initiative and present
her case to the DPP , to enable the latter to make a decision. T o have done
otherwise would have exposed potential victims to danger and herself to a
dereliction of duty. The present circumstances cannot be said to be within the
category of those described in Minister of Safety and Security v Sekhoto
supra, namely “the apparent abuse by some peace officers of the provisions
of section 40 (1) ” merely because they have a “right” to do so. 17 The offence
in the present matter was not a petty crime, and that potential involvement of
SAPS members made the situation all the more serious.
48. In the circumstances, W/O T e Baerts’s decision to continue with applying for
the warrants of arrest after screening the docket cannot be faulted.
the warrants of arrest after screening the docket cannot be faulted.
16 2011 (1) SA SACR 594 (WCC) para 21. See also Minister of Safety and Security v Sekhoto
2011 (1) SACR 315 (SCA) paras 45-49,
17 At para 13.
Detention
49. Insofar as the alleged unlawfulness of the plaintiffs’ detention is still an issue,
I can do not better than to quote from Nhlapo-Khumalo v Minister of Police
and others, 18 where the court granted an application of absolution from the
instance against the plaintiff who sued the police for unlawful arrest after
having been arrested (albeit without a warrant) for carjacking and attempted
murder, when the evidence in the docket indicated that he had been pointed
out by his co-accused. The court held as follows:
“[20] The evidence presented demonstrates that the police in effecting the arrest had
reasonably suspected that the plaintiff had committed the crimes alleged. The
evidence demonstrate that he was pointed out as an accomplice by the other 3
accused who, when apprehended confessed to the crimes as committed. On this
basis, it is therefore justified to infer on a balance of probabilities that the arrest was
based on solid grounds. I therefore, find that the jurisdictional facts for arrest were
satisfied.
[21] Once the jurisdictional facts for an arrest are present, discretion arises. The
general requirement is that any discretion must be exercised in good faith, rationally
and not arbitrarily. The question therefore is whether members of the SAPS’
exercise of discretion was within the confines of the enabling legislation. It must be
borne in mind that a party who attacks the exercise of discretion where the
jurisdictional facts are present bears the onus of proof.
[22] The Supreme Court of Appeal in Minister of Safety and Security v
Sekhoto held:
“… . once the jurisdictional facts have been established it is for the plaintiff to prove
that the discretion was exercised in an improper manner. …”
…
[24] On the claim of unlawful detention, it is well established that an arrest and
detention are separate legal processes, so much so that while the arrest may be
lawful; the detention may be unlawful; the fact that both result in someone being
lawful; the detention may be unlawful; the fact that both result in someone being
deprived of her or his liberty does not make them one legal process. Having said
that, the evidence in this matter demonstrate that the issue of arrest and subsequent
detention of the plaintiff are intertwined. I have already concluded that the conduct of
18 [2024] ZAGPJHC 838 (22 August 2024) paras 20-24. Emphasis supplied.
the member of the SAPS caused no harm in arresting the plaintiff, it then follows that
detention was justified.”
50. I have found that the arrests were lawful. Given the events that follows
thereafter as gleaned from the magistrate’s notes, and the plaintiffs’ release
on bail with out opposition from the State, I cannot find, on a balance of
probabilities, that their detention was unlawful.
Conclusion
51. It is trite that evidence led at a trial has to prove an alleged fact, and the
common aspects in the evidence considered in its totality should be of
assistance to arrive at a plausible conclusion. The common thread through all
of the evidence taken together in these matters, including the evidence in
relation to the investigations leading up to the plaintiffs’ arrests, show s that
Warrant Officer Te Baerts acted reasonably in the context of the nature of the
alleged crime , and the indications at her disposa l that members of SAPS
might have been involved . Her evidence, viewed objectively and in its
totality, was detailed and credible.
52. The evidence of the witnesses for the defendant, considered together with
the documents submitted into evidence, tips the balance of probabilities in
favour of the defendant. On a consideration of the evidence, therefore, I am
not satisfied that the plaintiffs’ arrest and subsequent detention were brought
about as a result of unreasonable conduct on the part of either W /O Te
Baerts or any of the other employees of the defendant involved in the se
matters.
Costs
53. There is no reason to deviate from the general rule that costs should follow
the result. Counsel were agreed that their fees should be taxed on Scale B.
Order
54. In the circumstances, I grant the following orders:
3. Under case number 21684/2022, the plaintiff’s claims are dismissed, with
costs, including counsel’s fees on Scale B.
4. Under case number, 21685/2022, the plaintiff’s claims are dismissed, with
costs, including counsel’s fees on Scale B.
P. S. VAN ZYL
Acting Judge of the High Court
Appearances:
For the plaintiffs: Mr S. Mbobo
Instructed by: Kili Inc. Attorneys
For the defendant: Mr D. Nyathi
Instructed by: The State Attorney