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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 33235/14
In the matter between:
In the matter between:
MONOGRAN MOONIAN
PLAINTIFF
AND
MINISTER OF POLICE DEFENDANT
This judgment is handed down by electronic communication to the parties’ legal
representatives. The date that the judgment is deemed to be handed down is 26 May
2026
______________________________________________________________________
JUDGMENT
Pretorius AJ.
Introduction
[1] This is an action for damages in the amount of R400 000.00 against the
defendant for unlawful arrest and detention of the plaintiff.
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
26 MAY 2026 ________________
DATE SIGNATURE
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[2] It is common cause that the plaintiff was arrested without a warrant of arrest by a
member of the South African Police Service , acting within the course and scope
of his employment with the defendant.
[3] The arrest took place on 10 May 2014 at Lenasia on a charge of theft from a
motor vehicle and theft . After the plaintiff’s arrest he was detained at Lenasia
police station until 12 May 2014 at 06h00. The plaintiff was subsequently taken to
Lenasia Court but did not appear before a magistrate. He was released from
Lenasia Court Cells at 14h00.
[4] The defendant pleaded that the Plaintiff was lawfully arrested without a warrant in
terms of Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 based on the
arresting officer’s reasonable suspicion of the plaintiff having committed an
offence contemplated in schedule 1 of the Act.
[5] It is trite that the onus rests on the defendant to justify an arrest to prove the
lawfulness of the arrest and to prove lawfulness of the arrest and detention on a
balance of probabilities
1. The defendant accepted the duty to begin.
[6] The issues which require determination are:
6.1. Whether the plaintiff was lawfully arrested and detained in terms of s 40(1)
(b) of the Criminal Procedure Act (“CPA”).
6.2. Whether, on the facts the arresting officer had formed a reasonable
suspicion that the plaintiff had committed an offence falling under
Schedule 1 of the Act.
6.3. Whether he applied his mind properly in exercising his discretion to arrest
the plaintiff.
6.4. If not, then the quantum of plaintiff’s damages occasioned by the arrest
and detention
6.5. Liability for costs.
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Evidence
[7] The defendant called one witness, Sergeant Ephic Manganyi (“Manganyi”), who
testified that at the time of the plaintiff’s arrest he was employed as a Constable
in the South African Police Service (“SAPS”).
[8] Manganyi testified that on 5 March 2014 a criminal docket under CAS
103/03/2014 was opened in relation to the alleged theft of a motor vehicle
battery, with one Mr Dlomo recorded as the complainant. He stated that he
subsequently received information from an informer, a certain Victor, alleging that
the plaintiff could be found at a shack situated adjacent to a RDP house in
Lenasia.
[9] Acting on the aforesaid information, Manganyi proceeded to the identified
premises accompanied by another police officer and Victor, who pointed out the
plaintiff as the suspect.
[10] Upon arrival at the premises, Manganyi introduced himself to the plaintiff, placed
him in handcuffs, and effected an arrest under the aforementioned case number.
He confirmed that neither he nor the accompanying officer was dressed in SAPS
uniform and that they were travelling in an unmarked vehicle.
[11] Manganyi further testified that Victor identified the plaintiff as the individual
involved in committing the offence.
[12] Following the arrest, the plaintiff was transported to the police station where,
according to Manganyi, his constitutional rights were explained to him. A Notice
of Rights, marked as Exhibit 1 (Caselines 25- 4), was completed and signed by
the plaintiff under the section headed “Certificate by Detainee”.
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[13] The witness further testified that the plaintiff signed a statement pertaining to an
interview conducted with him, which appears as Exhibit 2 (Caselines 25-22 to 25-
33). During cross-examination, however, Manganyi conceded that portions of the
statement relating to the interview were incomplete and contained no entries. He
further conceded that he himself had not signed the relevant certificate.
[14] During cross-examination, Manganyi was unable to explain why the presence of
the accompanying police officer and Victor at the scene was not properly
recorded either in his contemporaneous notes or in the docket. He further
conceded that, owing to the lapse of time, he could not recall several material
aspects of the matter, including the date of the plaintiff’s release, whether the
plaintiff appeared in court, and the whereabouts of the original statements and
the docket itself. He further acknowledged that the evidence he relied on was
based on information conveyed to him by Victor.
[15] When questioned regarding the basis for the arrest, Manganyi testified that he
acted on the information received and the identification made by Victor. He
further stated that upon arrival at the scene he observed that a vehicle bonnet
was open and that a battery was missing. He conceded, however, that this
observation was not recorded in a statement or affidavit.
[16] Manganyi was unable to provide an explanation as to why no search warrant or
warrant of arrest had been obtained prior to the arrest of the plaintiff. His
explanation was that he believed he would not have been able to obtain a
warrant as he did not know the plaintiff’s full particulars.
[17] When questioned as to why he had not obtained the plaintiff’s particulars despite
allegedly visiting the plaintiff’s mother on various occasions prior to the arrest,
Manganyi testified that the plaintiff’s mother informed him that she did not wish to
involve herself in the matter.
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[18] It was put to Manganyi that the plaintiff was arrested inside his mother’s
residence situated at 8[ …] G[…] Avenue, where the plaintiff resided at the time,
and that the arrest was unlawful and unsupported by a reasonable suspicion as
contemplated in section 40(1)(b) of the Criminal Procedure Act 51 of 1977.
Manganyi denied that the arrest was unlawful and maintained that he acted on
information provided by witnesses, although he was unable to clearly articulate
the objective basis upon which the suspicion against the plaintiff was formed,
other than the information from Victor.
[19] Manganyi further confirmed under cross -examination that the SAP 10 register,
being the official register recording detained persons, was not contained in the
docket. He was unable to provide an explanation for its absence. He further
conceded that certain procedural safeguards, including documentation relating to
the plaintiff’s legal representation, had not been properly completed.
[20] In re-examination, Manganyi maintained that a peace officer is empowered in law
to effect an arrest without a warrant. He did not, however, provide a basis or
evidentiary justification for the exercise of such discretion in the present matter.
[21] This concluded the evidence for the defendant and counsel for the defendant
closed its case without adducing any other evidence or exhibits.
[22] The plaintiff testified that he was born on 8 July 1985 and was 30 years old at the
time of his arrest on 10 May 2014. He resided at his parents’ home situated at
8[…] G[… ] Street, Extension [ …] , Lenasia, where he still resides. Prior to his
arrest, he earned a living as a hawker selling fruit within the Lenasia community.
[23] According to the plaintiff, at approximately 14h00 on the day of the arrest, two
men arrived at his home. The men, who were dressed in civilian clothing and not
in police uniform, entered the house whilst he was seated at the table eating.
in police uniform, entered the house whilst he was seated at the table eating.
One of the men informed him that he was under arrest. When he enquired as to
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the reason for the arrest, he was told that he “should know”. He was thereafter
transported in an unmarked grey vehicle to the Lenasia Police Station where his
fingerprints were taken and he was placed in a cell and instructed to sign a white
paper, reflected as Exhibit “1”. He stated that he signed it because the police
informed him that he should. He requested permission to contact his family to
bring him clothes and food, as he had been arrested whilst wearing only track
pants and a T-shirt, but was not allowed to phone anyone.
[24] He described the conditions of his detention as terrifying. T he cell was occupied
by approximately eight or nine men who appeared to be under the influence and
who he perceived as gangsters who dominated the cell. He stated that he
remained quiet out of fear. The cell smelled of urine and waste , and the toilets
inside the cell were blocked and unusable.
[25] He was unable to sleep and spent the night on a concrete bench without
blankets. Although blankets were available in the cell, he could not use them as
they were infested with red lice. There were no mattresses provided. He did not
receive food on the first day of his detention. On the Sunday morning, he was
given four slices of dry bread served on a dirty plate and later the day received a
small portion of samp. No food was provided on Sunday evening.
[26] On the Monday morning at approximately 06h00 he was transported to the
holding cells of Lenasia Court. The detainees in those cells appeared even more
dangerous, and one detainee demanded that he remove his T- shirt. He received
bread and juice in the holding cells.
[27] He was not brought before court and was released at approximately 14h00 that
afternoon.
[28] The plaintiff stated that the arrest and detention caused him embarrassment and
shame. He felt he was treated “like an animal”. Members of the community who
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knew him observed him in handcuffs, and after his release he became the
subject of comments and jokes which negatively affected work as a hawker
within the community.
[29] The only aspects canvassed during cross -examination related to whether the
plaintiff had previously seen a document similar to Exhibit “1” and whether he
had been arrested before, which he confirmed. No cross -examination was
directed to him relating to the place where he was arrested, nor the identities of
the people who arrested him or circumstances surrounding the arrest and
whether he was a flight risk.
Analysis.
[30] Stellenbosch Farmers Winery
2 sets out the principles pertaining to the evaluation
of evidence, and it is unnecessary to repeat them. Ultimately:
“To
come to a conclusion in the disputed issues a court must make findings on (a) the
credibility of the various factual witnesses; (b) their reliability and (c) the probabilities”
[31] The only aspects canvassed during cross -examination related to whether the
plaintiff had previously seen a document similar to Exhibit “1” and whether he had
been arrested before, which he confirmed. No cross -examination was directed to
him relating to the place where he was arrested, nor the identities of the people
who arrested him or circumstances surrounding the arrest and whether he was a
flight risk.
[32] The Constitutional Court in President of the Republic of South Africa and Others
v South African Rugby Football Union and Others 3 made the following instructive
remarks pertaining to the cross-examination of witnesses:
“[61] The institution of cross -examination not only constitutes a right, it also imposes
certain obligations. As a general rule it is essential, when it is intended to suggest that a
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witness is not speaking the truth on a particular point, to direct the witness’ attention to
the fact by questions put in cross -examination showing that the imputation is intended to
be made and to afford the witness an opportunity, while still in the witness box, of giving
any explanation open to the witness and of defending his or her character. If a point in
dispute is left unchallenged in cross -examination, the party calling the witness is entitled
to assume that the unchallenged witnesses’ testimony is accepted as correct. This rule
was enunciated by the House of Lords in Browne v Dunn[ (1893) 6 The Reports 67 (HL)]
and has been adopted and consistently followed by our courts.”
[33] In several material respects, the defendant’s pleaded case was not borne out by
the evidence adduced at trial. By way of example, the defendant pleaded that the
plaintiff was lawfully arrested in terms of section 40(1)(b) of the Criminal
Procedure Act 51 of 1977, on the basis that the arresting officer, a peace officer,
entertained a reasonable suspicion that the plaintiff had committed a Schedule 1
offence.
[34] It is trite that documents uploaded onto CaseLines do not constitute evidence,
unless properly introduced and admitted in accordance with the rules of
evidence. Likewise, pleadings and heads of argument do not constitute evidence
and cannot serve as a substitute for proof of factual allegations. A litigant is
required to discharge the onus by adducing admissible evidence.
[35] In the present matter, save for evidence establishing that Mr Manganyi was a
police officer, no evidence was adduced to establish the jurisdictional facts
required for a lawful arrest in terms of section 40(1)(b), namely that the arresting
officer in fact formed a suspicion, or that any such suspicion was based on
reasonable grounds.
[36] These issues were not canvassed during cross-examination.
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[37] The plaintiff’s version therefore remained unchallenged, and no contrary version
was put to him under cross -examination, and in the circumstances the Court is
entitled to accept his evidence as credible and uncontroverted.
Legal Position: The Arrest
[38] 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 reasonably
suspects of having committed an offence referred to in Schedule 1”.
[39] The jurisdictional requirements have come to be stated as follows, that for a
lawful arrest:
(i) the arrestor must be a peace officer;
(ii) the arrestor must entertain a suspicion;
(iii) the suspicion must be that the suspect committed an offence referred to in
Schedule 1;
(iv) the suspicion must rest on reasonable grounds.
[40] If the arresting officer succeeds in establishing these jurisdictional factors, the
arrest would be lawful, unless the plaintiff establishes that the discretion to arrest
him/her was exercised in an unlawful manner. If one or more of the jurisdictional
factors is/are not met, the arrest would be unlawful. The relevant enquiry is
whether the suspicion was reasonable thereby successfully establishing the
jurisdictional factors.
[41] The test to be applied is an objective test.
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[42] In Mabona and Another v Minister of Law and Order and Others,5 Jones J held:
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“The test of whether a suspicion is reasonably entertained within the meaning of s 40(1)
(b) is objective (S v Nel and Another 1980 (4) SA 28 E at 33E -H). Would a reasonable
man in the second defendant’s position and possessed of the same information have
considered that there were good and sufficient grounds for suspecting that the plaintiff
was guilty of conspiracy to commit robbery or possession of stolen property knowing it to
have been stolen? It seems to me that in evaluating his information a reasonable man
would bear in mind that the section authorises drastic police action. It authorises an
arrest on the strength of a suspicion and without the need to swear out a warrant, i.e.
something which otherwise would be an invasion of private rights and personal
liberty. The reasonable man will therefore analyse and assess the quality of the
information at his disposal critically, and he will not accept it lightly or without checking it
where it can be checked. It is only after an examination of this kind that he will allow
himself to entertain a suspicion which will justify an arrest. This is not to say that the
information at his disposal must be of sufficiently high quality and cogency to engender
in him a conviction that the suspect is in fact guilty. The section requires suspicion but
not certainty. However, the suspicion must be based upon solid grounds. Otherwise, it
will be flighty or arbitrary, and not a reasonable suspicion.”
[43] Considering that the defendant’s pleaded case was not supported by the
evidence adduced at trial, and more specifically that no evidence was led to
establish that Manganyi, the arresting officer, entertained a reasonable suspicion
that the plaintiff had committed an offence contemplated in Schedule 1, coupled
with the fact that the plaintiff’s version was not challenged during cross -
examination, I conclude that the defendant failed to establish a factual or
evidentiary basis justifying the arrest.
evidentiary basis justifying the arrest.
[44] The evidence presented does not meet the requisite standard necessary to
establish a lawful arrest. Accordingly, I find that the plaintiff’s arrest and
subsequent detention were unlawful.
Legal Position: Quantum
[45] In dealing with the purpose of the award for damages the court in the matter
of Strydom v Minister of Safety and Security and Another
6 stated as follows:
“[12] In the assessment of damages for unlawful arrest and detention, it is important to
bear in mind that the primary purpose is not to enrich the aggrieved party but to offer him
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or her some much needed solatium for his or her injured feelings. It is therefore crucial
that serious attempts be made to ensure that the damages awarded are commensurate
with the injury inflicted. However, our courts should be astute to ensure that the awards
they make for such infractions reflect the importance of the right to personal liberty and
the seriousness with which any arbitrary deprivation of personal liberty is viewed in our
law. It is impossible to determine an award of damages for this kind of injuria with any
kind of mathematical accuracy. Although it is always helpful to have regard to awards
made in previous cases to serve as a guide, such an approach if slavishly followed can
prove to be treacherous. The correct approach is to have regard to all the facts of the
particular case and to determine quantum of damages on such facts.”
[46] In Thandani v Minister of Law and Order 7 Van Rensburg J observed:
“In considering quantum, sight must not be lost of the fact that the liberty of the individual
is one of the fundamental rights of a man in a free society which should be jealously
guarded at all times and there is a duty on our Courts to preserve this right against
infringement. Unlawful arrest and detention constitute a serious inroad into the freedom
and rights of an individual.”
[47] In Minister of Safety and Security v Tyulu 8Bosielo AJA (as he then was)
commented:
“In the assessment of damages for unlawful arrest and detention, it is important to bear
in mind that the primary purpose is not to enrich the aggrieved party but to offer him or
her some much-needed solatium for his or her injured feelings. It is therefore crucial that
serious attempts be made to ensure that damages awarded are commensurate with the
injury inflicted. However, our Courts should be astute to ensure that the awards they
make for such infractions reflect the importance of the right to personal liberty and the
make for such infractions reflect the importance of the right to personal liberty and the
seriousness with which any arbitrary deprivation is viewed in our law. Although it is
always helpful to have regard to awards made in previous cases to serve as a guide,
such an approach if slavishly followed can prove to be treacherous. The correct
approach is to have regard to all the facts of the particular case and to determine the
quantum of damages on such facts Minister of Safety and Security v Seymour 2006 (6)
SA 320 (SCA) at 325 para 17; Rudolph and Others v Minister of Safety and Security
2009 (5) 94 (SCA) ([2009] ZASCA 39 paras 26-29).”
[48] On the issue of mechanical precision and guidance by previous cases it is
important to emphasise what was stated in the matter of Spannenberg and
Another v Minister of Police9 where the following was said:
“[20] There is a misnomer that the High Court in the Ngwenya judgment set as a
benchmark an amount of R15 000.00 per day as the norm for unlawful arrest and
detention. This is incorrect and misplaced. Each case must be decided in its own
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peculiar facts and circumstances (merits). This cannot be emphasized enough. There is
no benchmarking nor is there a one size (or amount) fits all practice that must be
followed. This will most definitely erode the judicial discretion of presiding officers.
However, there must be a balance of all the competing interests and it can never be that
there be poured from the proverbial ‘horn of plenty’. A claim for damages is not a get rich
quick opportunity but a solatium as compensation for the damages suffered.”
[49] In Minister of Safety and Security v Seymour 10 at paragraph [20] it was stated
that:
“[20] Money can never be more than a crude solatium for the deprivation of what in
truth can never be restored and there is no empirical measure for the loss. The awards I
have referred to reflect no discernible pattern other than that our courts are not
extravagant in compensating the loss. It needs also to be kept in mind when making
such awards that there are many legitimate calls upon the public purse to ensure that
other rights that are no less important also receive protection.”
[50] Previous awards can serve as guidance in determining an appropriate award for
damages. In Diljan v Minister of Police11 the court held that:
“[17] Thus a balance should be struck between the award and the injury inflicted.
Much as the aggrieved party needs to get the required solatium, the defendant (the
Minister in this instance) should not be treated as a ‘cash-cow’ with infinite resources.
The compensation must be fair to both parties, and a fine balance must be carefully
struck, cognisant of the fact that the purpose is not to enrich the aggrieved party.”
[51] The court in Diljan awarded an amount of R120 000.00 for three days detention.
[52] In Motladile v Minister of Police
12 the Supreme Court of Appeal awarded
R200 000.00 for unlawful arrest and detention of four nights. As stated above
these cases and awards only serve as a guide but ultimately a balance must be
these cases and awards only serve as a guide but ultimately a balance must be
struck between the award and the injury inflicted. Each case should be decided
on its own circumstances.
[53] I am also mindful of the decision in Mvu v Minister of Safety and Security and
other
13 in which Willis J, by referring to the Supreme Court of Appeal ( Seymour
decision) acknowledged the conservative approach of our Courts and awarded
damages in the sum of R30 000 for a day’s detention. (See also Ramakulukusha
v The Commander Venda National Force 1989 (2) sa 813 (v) . All these decisions
13
however are influenced in the final determination by the specific facts of each
case14
[54] Taking into consideration that the plaintiff was subjected to harsh, unhygienic
conditions and provided with little or no food, and having regard to the applicable
comparative case law, I am of the view that an award of R150 000 in respect of
general damages is fair and appropriate in the circumstances.
Costs
[55] The general principal is that the successful party is entitled to its costs, and I find
no reason to deviate from this principal
[56] Where proceedings could and ought to have been instituted in the Magistrates’
Court, were instead instituted in the High Court without sufficient justification, an
award of costs should be limited to the scale applicable in the lower court.
[57] In Thusi v Minister of Home Affairs and Another
15, the Court held:
“There is judicial authority for the proposition that a successful party may be deprived of
the costs attendant on having instituted action in the High Court, instead of the
Magistrates’ Court, where the monetary value of the relief claimed falls within the
jurisdiction of the Magistrates’ Court.”
[58] Similarly, in Dipico v Dipico16 it was confirmed that:
“The High Court has the discretion, where it is of the view that the Magistrates’ Court
would have been the more appropriate forum, to award costs only on the scale of that
court.”
[59] In the present case, although the plaintiff was successful in his claim for
damages arising from unlawful arrest and detention, the amount of damages
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awarded to the plaintiff falls within the jurisdictional limit of the Magistrates’
Court.
[60]
In light of the above authorities and the facts of this matter, it is appropriate that
costs be awarded on the Magistrates’ Court scale.
Order
In the premise, I make the following order:
a) The defendant is ordered to pay the plaintiff the amount of R150 000.00 in
compensation for the unlawful arrest and detention on 10 May 2014;
b) Interest at the rate of 10,25% on the aforesaid amount from date of
judgment until payment in full;
c) Costs on a party and party scale in the Magistrate’s court.
_____________________________
M. Pretorius
Acting Judge of the High Court
Gauteng Division, Johannesburg
Date of Hearing:
Date of Judgment: 26 May 2026
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Appearances:
For the Plaintiff: Advocate J M V Malema
Group 21, Sandown Village
malema@advocate21.co.za
Instructed by: Madeleine Gowrie Attorneys
For the Defendant: Adv M Shabangu
Oxford Chambers, Sandton
Shabangu.mandla01@gmail.com
Instructed by: State Attorney
1 Minister of Safety and Security v Sekhoto (131/10) [2010] ZASCA 141. Minister of Safety and Security v Tyulu
(327/08) [2009] ZAZCA 55 par 21
2 Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others 2003(1) (SCA) at par [5]
3 President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) S 1
(CC) at para 61
4 See Duncan v Minister of Law and Order 1986(2) SA 805 (A ) at 818 G -H; Nkambule v Minister of Law and Order
1993 (1) SACR 434 (T) at 436 A -B; Mvu v Minister of Safety and Security and Another 2009 (2) SACR 291 (GSJ)
para 9; Olivier v Minister of Safety and Security and Another 2009 (3) SA 434 (W) at 440G.
5 Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) at 658E-H
6 Strydom v Minister of Safety and Security and Another [2014] ZAFSHC 73 (28 May 2014)
7 Thandani v Minister of Law and Order 1991 (1) SA 702 (E) at 707B
8 Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA) at 93 d
9 Spannenberg and Another v Minister of Police (2993/2019) [2022] ZANWHC 4 (24 February 2022) at par [20]
10 Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA
11 Diljan v Minister of Police (Case No. 764/2021) [2022] ZASCA 103 (24 June 2022)
12 Motladile v Minister of Police (414/2022) [2023] ZASCA 94; 2023(2) SACR274(SCA) (12 June 2023)
13 Mvu v Minister of Safety and Security and other 2009 (6) SA 82 (GSJ)
14 See also Ramakulukusha v The Commander Venda National Force 1989 (2) sa 813 (v) . All these decisions
however are influenced in the final determination by the specific facts of each case.
however are influenced in the final determination by the specific facts of each case.
15 Thusi v Minister of Home Affairs and Another 2011 (2) SA 561 (KZP)
16 Dipico v Dipico 2002 (1) SA 504 (W) at 509C–D