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IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 1301/2021
In the matter between:
MOBU ADOLF MOLOI APPLICANT
and
THE MINSTER OF POLICE FIRST DEFENDANT
THE NATIONAL DIRECTOR OF SECOND DEFENDANT
PUBLIC PROSECUTIONS
Neutral citation: Moloi v The Minister of Police and Another (1301/2021) [2026]
ZAFSHC 229 (2 April 2026)
Coram: NEMAVHIDI AJ
Heard: 23 February 2026
Delivered: 2 April 2026
Summary: Unlawful arrest and detention – s 40(1)(b) of the Criminal
Procedure Act 51 of 1977 – warrantless arrest – reasonable suspicion – theft –
discretion to arrest – post appearance detention – judicial remand – onus of
proof.
ORDER
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1 The plaintiff’s claim against the first and second defendant is dismissed.
2 The plaintiff is ordered to pay both defendants’ costs of suit on scale A.
JUDGMENT
Nemavhidi AJ
Introduction
[1] The plaintiff instituted action against the defendants for damages arising from
his arrest on 3 May 2019 and subsequent detention until his release on bail on
20 May 2019. The plaintiff was arrested at his workplace, Bibi Cash and Carry in
Phuthaditjhaba, on suspicion of theft of stock. He was detained for approximately
seventeen days before being released on bail following a formal bail application. The
plaintiff's claims were originally for unlawful arrest and detention, and malicious
prosecution. During the trial, after the plaintiff closed his case, the second defendant ,
the National Director of Public Prosecutions, applied for and was granted absolution
from the instance in respect of the malicious prosecution claim. The matter
proceeded only on the claims for unlawful arrest and unlawful detention against the
first defendant, the Minister of Police.
[2] The first defendant admits that the plaintiff was arrested and detained, but
contends that both the arrest and detention were lawful. The onus accordingly rests
on the first defendant to justify the lawfulness of the deprivation of liberty. Having
considered the evidence presented, the applicable law, and the submissions of
counsel, I find that the first defendant has discharged this onus. The plaintiff's claim
falls to be dismissed. My reasons follow.
The evidence
[3] The plaintiff testified that on 2 May 2019, he removed expired stock to the
receiving room, showed it to his manager, and was instructed to place it next to the
door. He later borrowed a pallet jack from the damaged stock department. On
3 May 2019, he was called to the security room where CCTV footage was viewed.
He explained that he had only been moving stock in the ordinary course of his duties.
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According to the plaintiff, management indicated that he should not be arrested and
could accompany the police to the station merely to make a statement. Nevertheless,
he was taken to the police station, detained, and only released on bail on
20 May 2019 after a formal bail application.
[4] The first defendant called Sergeant Motloung, the ar resting officer, and
Sergeant Mkhwanazi, the investigating officer. Sergeant Motloung testified that she
and other members attended at Bibi Cash and Carry following a complaint of theft.
Upon arrival, they met the complainant, Mr Fabian (the receiving manager), who
showed them CCTV footage in the presence of the plaintiff and another employee.
The footage depicted the plaintiff moving stock using a pallet jack. Sergeant
Motloung understood the complaint to be that good stock was being disguised as
damaged stock. She testified that the plaintiff pointed himself out on the footage and
explained that there was a promise of money after the work was done. A case of theft
was then opened and the plaintiff was arrested.
The law
Arrest without warrant
[5] Section 40(1) (b) of the Criminal Procedure Act 51 of 1977, provides that a
peace officer may without a warrant arrest any person whom he or she reasonably
suspects of having committed an offence referred to in Schedule 1. Theft is a
Schedule 1 offence. In Duncan v Minister of Law and Order ,
1 the Appellate Division
identified four jurisdictional facts that must be present for a lawful arrest under this
section:
(i) the arrestor must be a peace officer;
(ii) the arrestor must entertain a suspicion;
(iii) the suspicion must be that the suspect committed a Schedule 1 offence; and
(iv) the suspicion must rest on reasonable grounds.
[6] The test for reasonable suspicion is objective. In Mabona and Another v
1 Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G-H. See also Minister of Safety and
Security v Sekhoto and An other [2010] ZASCA 141; 2011 (1) SACR 315 (SCA); [2011] 2 All SA 157
(SCA); 2011 (5) SA 367 (SCA) para 6 (Sekhoto).
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Minister of Law and Order and Others,2 Jones J held that:
‘The reasonable man will therefore analyse and assess the quality of the information at his
disposal critically, and will not accept it lightly or without checking i t 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 a
sufficiently high quality and cogency to engender in him a conviction that the suspect is in
fact guilty. The section requires suspicion and not certainty. However , the suspicion must be
based upon solid grounds.’
[7] Where an arrest is admitted, the defendant bears the onus of proving that it
was lawful. In Qunta v Minister of Police, 3 the court confirmed that once arrest and
detention are admitted, the onus rests on the defendant to prove justification in terms
of s 40(1)(b). The defendant must establish that the arrestor formed a suspicion
based upon reasonable grounds.
Discretion to arrest
[8] Even where the jurisdictional facts are present, s 40(1) confers a discretion,
not an obligation, to arrest. In Minister of Safety and Security v Sekhoto and
Another,
4 Harms DP held that a party who alleges that a constitutional right has been
infringed bears the onus, and that a party who attacks the exercise of discretion,
where the jurisdictional facts are present, bears the onus of proof. This includes the
onus to show either that there was no urgency to use the arrest method or that other
milder methods would have been equally effective.
[9] In McEwan v Minister of Police,
5 Gqamana J confirmed this principle:
‘In the particulars of claim (at para 13.4) a bold allegation was made that the arresting officer
failed to exercise any discretion at all, alternatively, failed to exercise his discretion in a
rational manner. There was no evidence led by the appellant to show either that there was
rational manner. There was no evidence led by the appellant to show either that there was
no urgency to use the arrest method to bring him before court or that other milder methods of
2 Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) at 658G -H
(Mabona). See also Le Roux v Minister of Safety and Security and Another [2009] ZAKZPHC 8; 2009
(4) SA 491 (N); 2009 (2) SACR 252 (KZP) para 24.
3 Qunta v Minister of Police [2012] ZAECPEHC 6 paras 72-73 (Qunta).
4 Sekhoto para 49.
5 McEwan v Minister of Police [2022] ZAECMKHC 4; 2022 JDR 0996 (ECM) para 14 (McEwan).
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bringing him to court would have been equally effective. Based on the evidence and
pleadings herein, the exercise of discretion by the arresting officer to use the arrest method
to bring the appellant to court cannot be faulted.’
Further detention
[10] In Minister of Police and Another v Du Plessis ,6 the Supreme Court of Appeal
examined the legal duties resting on police and prosecuting authorities after an
arrest. The court emphasised that a prosecutor must pay attention to the contents of
the docket and act with objectivity. However, the liability of the Minister of Police for
post-appearance detention depends on whether police conduct materially influenced
the remand decision. In Mahlangu and Another v Minister of Police,
7 the
Constitutional Court held that police officials bear a continuing duty after arrest to
ensure that a detainee is not unlawfully deprived of liberty. This duty includes placing
before the prosecutor any information known to the police which may justify release
or militate against further detention. The Court further held that judicial detention
does not automatically sanitize police misconduct, and an enquiry into the legality of
further detention cannot be precluded merely because a magistrate's remand order
exists.
Application to the facts
The Arrest
[11] The first three jurisdictional facts are not in dispute. Sergeant Motloung was a
peace officer. She entertained a suspicion that the plaintiff had committed theft, a
Schedule 1 offence. The critical enquiry is whether that suspicion rested on
reasonable grounds. Sergeant Motloung's evidence was that she attended the scene
following a complaint of theft. She was shown CCTV footage in the presence of the
plaintiff. The footage depicted the plaintiff moving stock using a pallet jack. The
plaintiff pointed himself out on the footage. The complainant, Mr Fabian, explained
that good stock was being disguised as damaged stock. Sergeant Motloung formed
the suspicion that theft had occurred.
the suspicion that theft had occurred.
6 Minister of Police and Another v Du Plessis [2013] ZASCA 119; 2014 (1) SACR 217 (SCA) para 34
(Du Plessis).
7 Mahlangu and Another v Minister of Police [2021] ZACC 10; 2021 (7) BCLR 698 (CC); 2021 (2)
SACR 595 (CC) paras 37 and 52 (Mahlangu).
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[12] The plaintiff's evidence was that he explained his actions as being in the
ordinary course of his duties and that management indicated he should not be
arrested. However, even on the plaintiff's own version, the CCTV footage showed
him moving stock. The explanation he gave was one of innocent intention, but the
objective facts , the movement of stock in circumstances where the complainant
alleged theft, were sufficient to ground a reasonable suspicion. In Mabona,
8 the court
held that the reasonable person analyses and assesses the quality of information
critically and does not accept it lightly without checking it where it can be checked.
Sergeant Motloung did precisely that. She viewed the CCTV footage. She heard the
plaintiff's explanation. She considered the complaint’s version. On the basis of all this
information, she formed a suspicion.
[13] The plaintiff places great emphasis on the fact that management purportedly
requested that he not be arrested. However, Sergeant Motloung's evidence on this
aspect was not that management exonerated the plaintiff, but that a request was
made, possibly to avoid a night in the cells because bail could be arranged. Even if
management expressed a preference, this did not negate the existence of
reasonable grounds for suspicion. The arresting officer was entitled to exercise her
own independent judgment. The plaintiff also points to contradictions between
Sergeant Motloung's civil evidence and her criminal trial testimony. I have carefully
considered these alleged contradictions. While there are some inconsistencies, they
do not go to the heart of whether reasonable grounds existed for suspicion. The core
facts, that the plaintiff was identified on CCTV footage moving stock, that a complaint
of theft was made, and that the plaintiff was present at the scene, are consistent
across both versions.
[14] In Qunta,
9 the court held that where the arresting officer formed a reasonable
[14] In Qunta,
9 the court held that where the arresting officer formed a reasonable
suspicion based on the plaintiff's conduct prior to arrest and allegations of theft by the
complainant, the arrest was lawful. The court further noted that the fact that
allegations in the complainant's statement later proved to be incorrect does not
retrospectively invalidate the suspicion; the prevailing circumstances at the time of
arrest must be examined. Applying this principle, I find that at the time of arrest,
8 Mabona at 658G-H.
9 Qunta paras 75-79.
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Sergeant Motloung possessed sufficient information to ground a reasonable
suspicion. The fact that the plaintiff may have had an innocent explanation, or that
management may have preferred that he not be arrested, does not render the
suspicion unreasonable. As the court in Mabona made clear, the section requires
suspicion, not certainty.
[15] Turning to the exercise of discretion, the plaintiff bore the onus of showing that
the discretion was not properly exercised. No evidence was led to establish that there
was no urgency to arrest or that less invasive methods would have been equally
effective. The plaintiff's bald assertion that he could have been asked to make a
statement is insufficient. In the circumstances , a complaint of theft, the presence of
CCTV footage depicting the plaintiff moving stock, and the need to secure the
plaintiff's attendance at court , the decision to arrest falls within the range of rational
choices available to the arresting officer.
Further detention
[16] The plaintiff was arrested on 3 May 2019, appeared in court on 6 May 2019,
and was released on bail on 20 May 2019 following a formal bail application. The
plaintiff contends that his detention beyond the first court appearance was unlawful
and that the defendants are liable for the entire period. Sergeant M khwanazi, the
investigating officer, testified that he received the docket on 6 May 2019 after the
matter had already been to court. The matter was remanded to 20 May 2019. He
confirmed that he relied on the complainant's statement, the arresting officer's
statement, and the alleged existence of CCTV footage. He conceded that he did not
personally view the CCTV footage prior to the bail postponement and that if relevant
information had been conveyed to him, this could have impacted the duration of
detention.
[17] However, Sergeant M khwanazi also testified that the value of the alleged
stolen property exceeded R20 000, which constituted a Schedule 5 offence. In such
stolen property exceeded R20 000, which constituted a Schedule 5 offence. In such
circumstances, police bail is limited to R5 000, and the matter required the
prosecutor and the court to determine whether release in the interests of justice was
appropriate. The plaintiff relies heavily on Mahlangu, for the proposition that the
Minister may be liable for post-appearance detention where police conduct materially
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influenced the remand decision. In Mahlangu, the police had obtained a confession
through torture and failed to disclose this to the prosecutor. The Constitutional Court
held that the police bore a continuing duty to disclose all relevant facts.10
[18] The present matter is distinguishable. There is no evidence that the police
suppressed exculpatory information or misled the prosecutor. The arresting officer's
statement and the complainant's statement were placed before the prosecutor. The
CCTV footage existed and was available. The inv estigating officer's failure to
personally view the footage prior to the first appearance does not amount to the kind
of deliberate misconduct or material omission that was present in Mahlangu.
[19] Moreover, the plaintiff's continued detention after 6 May 2019 was the result
of judicial orders. The matter was remanded by the magistrate for a bail hearing.
There is no evidence that these remand orders were procured through police
misconduct or misrepresentation. In Du Plessis,
11 the court examined the liability of
the Minister for post -appearance detention and held that the prosecutor's failure to
pay attention to exculpatory matter in the docket could found liability. However, in
that case, the prosecutor failed to act on statements that showed the plaintiff was an
innocent bystander. Here, no such clearly exculpatory material existed.
[20] Section 50(6)(d) of the Criminal Procedure Act provides that bail proceedings
may be postponed for a period not exceeding seven days at a time. The
postponement from 6 May to 20 May 2019 exceeded seven days. However, the
plaintiff's remedy, if any, lies against the magistrate and the Minister of Justice for
any alleged wrong application of the law. The magistrate was not joined in these
proceedings. More fundamentally, the plaintiff has not established that the
postponement was unlawful or that it was caused by any conduct of the police. The
postponement was unlawful or that it was caused by any conduct of the police. The
first defendant cannot be held liable for judicial acts over which it had no control.
[21] I am fortified in this conclusion by the approach in McEwan,
12 where the court
upheld the lawfulness of detention where the plaintiff was brought before court within
10 Mahlangu paras 37 and 52.
11 Du Plessis para 34.
12 McEwan paras 3 and 10-12.
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the prescribed period and the subsequent postponements were occasioned by the
normal processes of the court. The court held that the object of arrest is to bring the
suspect before court, and once that is achieved, further detention is a matter for
judicial determination.
Credibility findings
[22] The plaintiff's evidence was not without difficulty. He testified that he had a
poor relationship with the receiving manager and two security officers. He conceded
that on the CCTV footage, he could see that good stock had been mixed with
damaged stock by two other employees. He pointed these employees out to
management. Yet he maintained that he had no involvement in any wrongdoing.
Sergeant Motloung's evidence was substantially consistent on the core facts: the
complaint, the viewing of CCTV footage, the plaintiff's presence and identification,
and the decision to arrest. While there were some inconsistencies under cross -
examination regarding the timing of her call to the station commander and whether
admissions were made, these did not, in my view, detract from the essential
reasonableness of her suspicion.
[23] The approach in Stellenbosch Farmers' Winery Group Ltd and Another v
Martell et Cie and Others ,
13 requires the court to make findings on the credibility of
witnesses, their reliability, and the probabilities. Applying this approach, I find that
Sergeant Motloung was a credible witness whose evidence, viewed holistically,
established that she entertained a reasonable suspicion based on solid grounds. The
plaintiff's version, while consistent, does not displace the objective reasonableness
of the suspicion formed at the time of arrest.
Conclusion
[24] The first defendant has discharged the onus of proving that the jurisdictional
facts for a warrantless arrest under s 40(1)(b) were present. Sergeant Motloung
entertained a reasonable suspicion, based on objective grounds, that the plaintiff had
entertained a reasonable suspicion, based on objective grounds, that the plaintiff had
committed theft. She lawfully exercised her discretion to arrest the plaintiff. The
arrest was accordingly lawful. The plaintiff's detention following the arrest was the
13 Stellenbosch Farmers' Winery Group Ltd and Another v Martell & Cie and Others [2002] ZASCA 98;
2003 (1) SA 11 (SCA) paras 5-6.
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result of judicial orders made in the ordinary course. There is no evidence that the
police suppressed exculpatory information or otherwise misconducted themselves in
a manner that materially influenced the remand decisions. The first defendant cannot
be held liable for detention that was judicially authori sed in the absence of proven
police misconduct.
[25] In the premises, the plaintiff's claims for unlawful arrest and unlawful detention
cannot succeed.
Order
[26] In the result, the following order is made:
1 The plaintiff’s claim against the first and second defendant is dismissed.
2 The plaintiff is ordered to pay both defendants’ costs of suit on scale A
M B NEMAVHIDI
ACTING JUDGE OF THE HIGH COURT
Appearances
For the plaintiff : A C Gobetz
Instructed by: Loubser Van Wyk Inc,
Pretoria
c/o Jacobs Fourie
Bloemfontein.
For the first and
second defendants : S S Jonase
Instructed by: The State Attorney,
Bloemfontein.