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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO.: CA 109/2025
In the matter between:
AYANDA RUDOLPH MLAMBO Appellant
and
MINISTER OF POLICE Respondent
APPEAL JUDGMENT
Brown AJ:
[1] This is an appeal against an order of the Magistrate’s Court of New Brighton
dismissing, with costs, an action brought by the appellant seeking damages
arising from his arrest and detention by members of the South African Police
Service (“SAPS”).
Condonation
[2] Before turning to the appeal it is necessary to deal with a belated application
brought by the appellant, in which he seeks, inter alia , that his appeal be
“reinstated/revived” together with condonation for his non -compliance with
Magistrate’s Court Rule 51 and Uniform Rule 50 by failing to both note and to
prosecute his appeal within the prescribed timeframes. The condonation
application is opposed by the respondent, who has filed an answering affidavit
and a supplementary answering affidavit thereto.
[3] It is worth emphasising the most unsatisfactory manner in which the
condonation application has been brought and, indeed, opposed.
[4] It is apparent from the papers, that the condonation application was brought in
reaction to points taken in the heads of argument filed on behalf of the
respondent, rather than as a matter of course. This despite the fact that it is
also clear from the founding affidavit that the appellant and his representatives
should have been aware of the failures for some time.
[5] The condonation application was served on the respondent on 30 April 2026
and filed on 5 May 2026, two days prior to the hearing of the appeal. The
founding papers in the application consist of approximately 50 pages. The
answering affidavit is approximately 40 pages and was filed on 6 May 2026
with a supplementary answering affidavit filed later of a further 10 pages.
[6] The result of all of this is that the condonation application, taken together with
the averments contained in respect thereof in the heads of argument, has
resulted in almost doubling the material in the record of appeal.
[7] At the hearing of the appeal it was put to both counsel, given the relatively short
time periods in respect of which condonation was sought and the fact that there
appeared to be no substantial prejudice to the respondent, whether it was not
appropriate to grant condonation, and that the appellant, be ordered to pay
some of the costs related thereto. Both counsel agreed that this was an
appropriate course.
[8] In the face of that ready concession on the part of both parties, one is left to
ask why the parties deemed it appropriate to so significantly increase the
volume of documentation necessary for the court to consider. This particularly
in circumstances where, as appeared from the respondent’s heads of
argument, the condonation application could – if opposed – have been
opposed and argued on a substantially narrower basis.
[9] In justification of his failures, 1 the appellant claims that he did not receive
timeous notification of the fact that the Magistrate’s Court had handed down
judgement, resulting in the late filing of the notice of appeal. The notice of
appeal was delivered 6 days late as taken from the date on which the appellant
obtained a copy of the judgement and only after the appellant had sought
further written reasons in terms of Magistrate’s Court Rule 51(1). Quite why the
1 These failures include the late filing of the appeal record, including in the appeal record
unnecessary documents and the late filing of heads of argument.
appellant believed it necessary to request reasons in circumstances where a
comprehensive written judgement had been delivered, is not clear.
[10] Insofar as the late prosecution of the appeal is concerned, the notice of
prosecution was filed 2 days out of time. Moreover, the notice of prosecution
was filed without the appeal record, which was ultimately filed substantially out
of time on 22 January 2026. Both of these delays, according to the appellant,
are ascribable to difficulties in obtaining a typed copy and transcript of the
proceedings a quo.
[11] A court may grant condonation upon good cause shown. The applicant for
condonation seeks an indulgence and the court has a discretion as to whether
to grant condonation.2
[12] In United Plant Hire (Pty) Ltd v Hills 3 the Appellate Division, as it then was,
confirmed that in considering applications for condonation at the appeal stage,
the court has a discretion to be exercised judicially upon consideration of all the
relevant facts which may include, inter alia, the degree of non -compliance, the
explanation provided therefor, the importance of the case, the respondent’s
interest in the finality of the judgement, the convenience of the court and the
avoidance of unnecessary delay in the administration of justice.4
2 Grootboom v National Prosecuting Authority 2014 (2) SA 68 (CC) at para 20.
3 United Plant Hire (Pty) Ltd v Hills 1976 (1) SA 717 (A).
4 Supra at 720E – G.
[12] These factors were echoed by the Constitutional Court in Van Wyk v Unitas
Hospital5 in which the court moreover confirmed that the standard for
considering condonation is the interests of justice.6
[13] Where an appellant has not complied with the time frames, he is compelled to
seek condonation from the court and in doing so is required, inter alia, to fully
explain the reasons for his failures. A litigant is entitled to oppose such an
application, particularly where the failings have resulted in prejudice to that
party.
[14] However, the raising of technical objections simply because they are available,
rather than to achieve the purposes of the rules and law to which they relate,
must be depreciated. Adopting a strategy which simply seeks to raise every
available point, whether there is substantive reason to do so, does nothing
more than to overburden the court, and indeed the parties. It also serves to
distract attention from what is in fact at issue.
[15] An opposing party is expected to consider and to evaluate its position to avoid
simply quibbling about trivialities. In this regard, the issue of real prejudice must
be properly considered and engaged with.
[16] Parties, guided by their legal representatives who are officers of the court, are
expected to take a pragmatic approach to litigation and to utilise the available
procedures to advance their case where there are justifiable reasons for doing
so.
5 Van Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus Curiae) 2008 (2) SA 472 (CC) also
Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Limited [2013] 2 All
SA 251 (SCA) at para 11
6 Supra at 477A - B
[17] As I have stated above, the notice of appeal and the notice of prosecution were
delivered 6 days and 2 days out of time respectively. The notice of prosecution
was delivered without a copy of the record. It was explained by the appellant
that this was as a result of difficulties in obtaining the typed copy of the
transcription of the proceedings of the trial court.
[18] Although the appellant’s conduct in prosecuting the appeal is hardly exemplary,
on considering the factors relevant to condonation at the appeal stage and the
concessions made in argument, it is my view that it is in the interests of justice
to grant the condonation relief.
[19] The general rule is that an applicant who seeks an indulgence pays the costs of
the application, including the costs “ reasonably incurred ” in opposing the
application.7 However, where such opposition is unreasonable, frivolous,
vexatious or unmeritorious there is no reason to adhere stringently to the
general rule.8
[20] What in my view undermines the approach adopted by the respondent is not
only the fact that he was not able to set out any significant prejudice caused by
the delays, but also the unnecessarily lengthy papers filed in opposition to the
condonation application.
[21] In the face of these concerns, during argument it was asked of the counsel for
the respondent whether, in assessing the costs relating to the condonation
application, it would not be appropriate to deny the respondent a portion of the
7 Dobsa Services CC v Dlamini Advisory Services (Pty) Ltd 2016 JDR 1786 (SCA) at para 11.
8 Meyers v Abramson 1951 (SA) (3) SA 438 (C) 455F – H; Dimension Data Middle East Africa (Pty)
Ltd and others v Ngcaba 2022 JDR 3826 (GJ) at para 41.
costs. The respondent’s counsel, quite properly in my view, accepted that this
may be justified in the circumstances.
[22] Insofar as the costs relating to the condonation application are concerned then,
the appellant is to pay those costs on the scale as between party and party.
However, as a mark of the court’s disapproval of the respondent’s conduct with
respect to the condonation application, it is appropriate to limit the respondent’s
recovery of such costs to 70 percent of the costs so incurred.
The appeal
[23] As I have adverted to above, the present appeal is against an order of the
magistrate a quo dismissing an action brought by the appellant for damages
arising out of his arrest and detention at the hands of members of the SAPS.
[24] The following material facts are not in dispute:
24.1 The appellant was arrested, without a warrant of arrest, on the evening
of Friday, 28 October 2022 at 3[...] S[...] Street, Kwazakhele, Gqeberha. I
will refer to these premises as “3[...] S[...] Street”.
24.2 3[...] S[...] Street is a premises on which a shebeen is operated and at
which alcohol is sold.
24.3 The attendance by the police officers at 3[...] S[...] Street took place
pursuant to a search and seizure warrant, with which I will deal in more
detail below.
24.4 After his arrest, the appellant was transported to Kwazakhele Police
Station where he was detained until Monday, 31 October 2022 to appear
at the New Brighton Magistrate’s Court.
24.5 On arrival at the police station the appellant was charged with the
possession of illegal drugs.
24.6 On Monday, 30 October 2022 the prosecutor at the New Brighton
Magistrate’s Court declined to prosecute and the appellant was released
from custody.
The appellant’s evidence
[25] During his evidence, the appellant testified that he was at 3[...] S[...] Street on
the night of 28 October 2022, where he was drinking liquor with some friends.
[26] At approximately 19h00, police officers arrived at 3[...] S[...] Street and
conducted a search of the property. After engaging with other persons at 3[...]
S[...] Street, the police officers approached the appellant and asked if they
could search him. He testified that he agreed and a cell phone, house keys and
R28.00 were found in his possession.
[27] At this stage, a police officer approached him holding an ice -cream container.
The police officer said that the ice-cream belonged to the appellant.
[28] The appellant had not seen the police officers before and did not know them.
They arrested him and transported him to Kwazakhele Police Station where the
ice-cream container was opened revealing illegal drugs including tik, dagga and
mandrax tablets. The appellant was charged and placed in a holding cell.
[29] The appellant denied that the ice -cream container was found on him, that he
had any knowledge thereof or of what was contained therein and denied that
he was selling illegal drugs at 3[...] S[...] Street.
[30] Finally, the appellant testified that the reason for his arrest was never explained
to him and that he was never read any of his constitutional rights.
The evidence for the respondent
[31] Before I engage with the evidence given at the trial by Constable Hefke on
behalf of the respondent, it is necessary to deal with the statement of the
arresting officer, Constable Majoka.
[32] Constable Majoka did not testify during the trial. This, according to the evidence
of Constable Hefke, was because Constable Majoka had been dismissed from
the SAPS after being detained pursuant to allegations that he had murdered his
girlfriend.
[33] During the evidence on behalf of the respondent by Constable Hefke, the
statement of Constable Majoka dated 28 October 2022 was referred to and,
prior to the cross -examination of Constable Hefke commencing, the
respondent’s representative brought an application from the bar for the
admission of Constable Majoka’s statement in terms of section 3 of the
Evidence Amendment Act 45 of 1988 (“the Evidence Amendment Act”).
[34] On being asked by the presiding magistrate whether the appellant objected to
the admission of the statement, the representative for the appellant confirmed
that the appellant had no objection to the admission of the statement.
Constable Majoka’s statement was duly admitted into evidence.
[35] Section 3(1) of the Evidence Amendment Act provides that subject to the
provisions of any other law, hearsay evidence shall not be admitted as
evidence at criminal or civil proceedings. However, the subsections of section
3(1) provide certain exceptions in this regard. Relevant to this matter is section
3(1)(a) which provides that hearsay evidence will be admitted as evidence
where “each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings.”
[36] Section 3(4) of the Evidence Amendment Act defines “hearsay evidence” to
mean evidence, whether oral or in writing, the probative value of which
depends on the credibility of any person other than the person giving such
evidence.
[37] In the matter of Congola v S, 9 the court per Moseneke and De Villiers JJ
confirmed that the express agreement of the legal representative of an accused
was sufficient to render admissible hearsay evidence which would have
otherwise been inadmissible in terms of section 3(1) of the Evidence
Amendment Act.10
9 Congola v S [2004] JOL 13371 (T) at pages 5 to 7.
10 The admission of such evidence is limited in criminal cases where the consideration of the
potential prejudice of the evidence to the accused must be considered. This is not relevant in the
present matter.
[38] The admission of hearsay evidence by agreement was also considered, on
appeal, in Witthuhn v Road Accident Fund 11 where the court, with reference
inter alia to Thoroughbred Breeders Association of South Africa v Price
Waterhouse,12 accepted, obiter, that where agreement had been reached the
court was entitled to have regard to evidence which may otherwise have been
inadmissible on the grounds of hearsay.
[39] The reason this is important in the context of the present matter is because the
crux of the appellant’s case before the court a quo, and before this court, rested
on the contention that the jurisdictional facts justifying an arrest in terms of
section 40 of the Criminal Procedure Act, 51 of 1977 ( “the CPA”) had not been
met.
[40] It was further argued on behalf of the appellant that without the evidence of the
arresting officer, Constable Majoka, there could be no evidential basis on which
to properly weigh the probabilities in respect of the lawfulness of the arrest. It
was also suggested that Constable Majoka’s statement “does not constitute
evidence in the trial.”
[41] Given that the appellant’s legal representative expressly agreed to the entering
of Constable Majoka’s statement into evidence, these contentions are
unfounded. In my view the admission of Constable Majoka’s statement met the
requirements for its admission in terms of section 3(1)(a) of the Evidence
Amendment Act. In any event, as I will detail below, Constable Hefke was
11 (A5046/2015) [2017] ZAGPJHC 285 (14 September 2017) at para 24.
12 1999 (4) SA 968 (W) at page 1015.
present throughout the arrest and provided first hand evidence as to what
transpired.
[42] The statement of Constable Majoka, accepted to be properly admitted by
agreement into evidence, largely corroborates the evidence given by Constable
Hefke and there is no basis to suggest that the statement should not be taken
into account in assessing the probabilities.
[43] The evidence for the respondent then, as provided by Constable Hefke in
person and as adduced from Constable Majoka’s statement was as follows:
43.1 On 28 October 2022, members of the SAPS, including Constable Hefke
and Constable Majoka executed a search and seizure warrant issued in
respect of 3[...] S[...] Street.
43.2 The search and seizure warrant identified as the “target” a Ms Nomhle, but
empowered the SAPS members to search the premises and “any person
found upon or at such premises ” for the articles listed in the warrant. The
listed articles included illegal drugs.
43.3 I pause to record that, importantly, the validity of the warrant of search and
seizure has not been challenged by the appellant before this court and it
was not challenged in the proceedings a quo.
43.4 In the execution of the warrant, Constable Hefke was with Constable
Majoka at all relevant times.
43.5 Upon entering the premises at 3[...] S[...] Street, Constable Hefke and
Constable Majoka saw a male sitting with a container on his lap. The male
later became known to Constable Hefke as the appellant.
43.6 Constable Majoka introduced himself as a police officer and inspected the
container and found it to contain illegal drugs.
43.7 Constable Majoka thereafter arrested the appellant, explaining the reasons
for doing so and together with Constable Hefke transported the appellant to
Kwazakhele Police Station. The arrest was made without a warrant for the
arrest of the appellant.
43.8 At the police station the appellant was read his constitutional rights. Also,
the contents of the container was inspected and found to contain significant
quantities of tik, mandrax tablets and dagga.
43.9 The appellant was not previously known to Constable Hefke and he had no
prior dealings with the appellant.
The findings of the magistrate
[44] It is against this matrix of facts, conflicting and undisputed, that the magistrate
was called on to balance the probabilities in determining whether the
appellant’s arrest was lawful.
[45] In doing so, the magistrate correctly recognised that the onus rested on the
respondent to demonstrate, on the probabilities, that the arrest was lawful and
that the subsequent detention was justified.
[46] In assessing the evidence, the magistrate found the evidence of the appellant
to be riddled with improbabilities which impacted negatively on his credibility. In
the magistrate’s view, the conspectus of the evidence favoured the
respondent’s version.
[47] In arriving at this conclusion, the magistrate had particular regard to the fact
that a search and seizure warrant had been issued to search 3[...] S[...] Street
and any person found there, that the search and seizure warrant expressly
contemplated a search for unlawful drugs on the premises and that the
appellant was not previously known to either Constable Hefke or Majoka.
[48] The action was accordingly, dismissed with costs.
Analysis
[49] The onus of proof in respect of the lawfulness of an arrest, is borne by the
person who arrested, or caused the arrest, in this case the respondent. This is
because an arrest constitutes an interference with the liberty of the individual
concerned.13
[50] Sections 40(1)(a) and 40(1)(h) of the CPA provide that:
“40 Arrest by peace officer without a warrant
(1) A peace officer may without a warrant arrest any person –
(a) Who commits or attempts to commit any offence in his presence.
…
13 Minister of Safety and Security v Sekhoto and another 2011 (1) SACR 324 (SCA) at para 16.
(h) who is reasonably suspected of committing or of having committed an offence
under any law governing the making, supply, possession or conveyance of
intoxicating liquor or of dependence producing drugs or the possession or disposal
of arms or ammunition.”
[51] To justify an arrest under section 40(1)(a) it is trite that three jurisdictional facts
must exist:14
51.1 Firstly, the arrestor must be a peace officer. That is common cause in
the present matter.
51.2 Secondly, the offence must have been committed or there must be an
attempt to commit the offence.
51.3 Finally, the offence or attempted offence must have been committed in
the presence of the peace officer.
[52] As to the conclusion that an offence is being committed, the question to be
asked is whether the arresting officer had direct personal knowledge of
sufficient facts at the time of the arrest on the strength of which it can be
concluded that the arrestee prima facie committed the offence.15 The test is an
objective one.
[53] The aim is not to determine whether the arrested person is guilty of the offence
on which he or she is arrested and it accordingly matters not whether or not the
arrestee was not prosecuted or was subsequently acquitted.16
14 Twebe v Minister of Safety and Security and others (CA68-2023) [2024] ZAECMKHC 74 (25 June
2024) at para 5; also Van Wyk and another v Minister of Police and another (A617/15) [2016]
ZAGPPHC 942 (17 November 2016) at para 16.
15 Scheepers v Minister of Safety and Security 2015 (1) SACR 284 (ECG) at para 18 to 19.
16 Supra at para 18 to 19.
[54] Insofar as section 40(1)(h) of the CPA is concerned, a “reasonable suspicion” is
considered objectively, and is determined by considering whether a reasonable
person with the knowledge and experience of a peace officer, based on the
facts before him or her, could have come to that conclusion.17
[55] In the judgement, the magistrate made no direct reference to the admitted
evidence of Constable Majoka. This, it was urged on behalf of the appellant,
wholly undermined the judgement.
[56] In particular, what was contended in argument before this court was that to
conclude that the jurisdictional facts for an arrest, required in terms of section
40(1)(a) of the CPA, had been met, the evidence of the arresting officer,
Constable Majoka, was a prerequisite.
[57] That contention is not sustainable in light of the authorities. An omission by a
trial court to refer to some fact which is relevant is not necessarily a
circumstance which will entitle a court on appeal to disregard entirely the
findings of the trial court. 18 In any event, where an appeal court is of the view
that the reasons given by the trial court are not satisfactory, it is entitled to have
regard to the evidence to come to its own conclusions, bearing in mind the
advantages that the trial court has, which an appeal court does not have, in
seeing and hearing the witnesses and being steeped in the atmosphere of the
trial.19
17 Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 812H – 813B.
18 R v Dhlumayo and another 1948 (2) SA 678 (A) at page 681.
19 Supra at pages 697 and 700.
[58] Secondly, and fatally, the contention wholly ignores the fact that Constable
Majoka’s statement was admitted into evidence, without objection and in terms
of section 3(1) of the Evidence Amendment Act.
[59] What the court a quo was required to do, and did, was to assess the
probabilities on the evidence before it. In doing so it preferred, on the
probabilities, the evidence of Constable Hefke and thus the case relied on by
the respondent. In my view, the approach adopted by the court a quo and the
conclusions it came to cannot be faulted.
[60] This is particularly so when the evidence of Constable Hefke is considered in
the light of what is contained in the statement of Constable Majoka. As to the
finding by the magistrate that the appellant’s evidence was riddled with
improbabilities, this is justified. A particular example is that, in cross -
examination the appellant conceded that he had in fact signed a document
headed “Notice of Rights in Terms of the Constitution ” confirming that his rights
had been explained to him and that he understood their contents. This
materially contradicted his evidence in -chief and indeed allegations in his
pleadings.
[61] Given that it is not in dispute that the arresting officer was a peace officer, on
the probabilities the appellant was found at 3[...] S[...] Street, with an ice-cream
container which contained what appeared to Constable Majoka and Constable
Hefke to be illegal drugs. On the probabilities then, the jurisdictional facts
required to justify an arrest without a warrant in terms of section 40(1)(a) of the
CPA were satisfied.
[62] It follows too, that the prerequisites for an arrest in terms of section 40(1)(h) of
the CPA were also satisfied.
[63] In the circumstances, the respondent has discharged the onus it bears to
establish on the probabilities that the arrest was lawful and the appeal must fail.
In my view there is no basis to diverge from the normal principle that the costs
must follow the result.
[64] The following order is accordingly made:
1. The appellant’s non -compliance with the provisions of Magistrate’s
Court Rule 51 and Uniform Rule 50 in respect of the time periods
applicable to the noting of and prosecution of the appeal is condoned;
2. The appellant’s appeal is reinstated;
3. The appellant is to the pay 70 percent (70%) of the costs occasioned
by the respondent in opposing the condonation application on the
scale as between party and party, including counsel’s costs on Scale
A;
4. The appeal is dismissed with costs on the scale as between party and
party, including counsel’s costs on Scale A.
____________________________________
G W W BROWN
ACTING JUDGE OF THE HIGH COURT
I agree:
__________________________________
G H BLOEM
JUDGE OF THE HIGH COURT
Appearances:
Counsel the appellant : Adv. C Mzamo
Instructed by: : Magqabi Seth Zitha Attorneys,
Gqeberha
Counsel for the respondent : Adv. N Karsan
Instructed by: The State Attorney
Gqeberha
Matter was heard on : 08 May 2026
Judgment delivered on : 19 May 2026