IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case No.: AR483/24
In the matter between:
GABRIEL ZILUNGISELE HLONGWANE APPELLANT
and
MINISTER OF POLICE RESPONDENT
This judgment was handed down electronically by circulation to the parties’ representatives by email and
released to SAFLII. The date for hand down is deemed to be on 05 June 2026 at 11:00
ORDER
On appeal from the Magistrate’s Court, Durban:
The appeal is dismissed with costs on Scale A.
JUDGMENT
CHETTY et HARRISON JJ
[1] This is an appeal against the dismissal of an action in the court where the
appellant, as plaintiff, sued the respondent on two causes of action, namely:
2
(a) contumelia and deprivation of freedom due to unlawful arrest and
detention; and
(b) pain and suffering, and temporary loss of amenities of life.
`
[2] The second cause of action, whilst framed in the particulars as pain and
suffering, is in effect a claim in respect of an alleged assault which occurred whilst
the appellant was in police custody. The contumelia relates to an alleged
instruction, at the instance of certain police officers, that the appellant twerk1.
[3] The entirety of the events relates to the arrest of the appellant on Friday,
29 April 2016 and his subsequent detention until his release after having been held
over a long weekend. It is common cause, as borne out by the appellant's own
evidence-in-chief, that he was not arrested by the police on Friday, 29 April 2016,
but rather that his arrest was effected by an employee of the security firm known
as Black Dolphin Investigations (Black Dolphin).
[4] On 29 April 2016, a security officer Mr Jacob Machaka (Mr Machaka) of Black
Dolphin was on duty at the Greyville branch in Durban of the First National Bank
(FNB) keeping a watch over customers using their automated teller machines
(ATMs) as there had been a number of thefts of bank cards and money, especially
on Friday afternoons. Mr Machaka recognised the appellant, along with two
accomplices, as being part of a syndicate targeting customers by swapping their
bank cards while using the ATMs. The appellant was identified as being the driver
of a Toyota Yaris in which two other known suspects were passengers.
[5] Although Mr Machaka was not called to testify in the court a quo, he deposed
to a statement taken on 29 April 2016 at 19h00 which formed the basis of the
appellant’s detention by the police until his release following his first appearance
in Court on 4 May 20 16. Mr Machaka stated that the appellant and his cohorts
were already on the bank’s ‘watch lists’ when he recognised them arriving at the
were already on the bank’s ‘watch lists’ when he recognised them arriving at the
1 A sexually suggestive dance generally while squatting. Merriam-Webster.com Dictionary.
3
Greyville branch on 29 April 2016. He recalled that two of the occupants exited the
vehicle and entered the banking lobby where the ATMs were located. They began
‘interfering’ with customers, typical of behaviour associated with the card swapping
crimes at ATMs. The remainder of his statement is somewhat confusing as it is not
clear whether the appellant was present in the bank lobby or remained waiting in
the vehicle outside the bank. What is not in dispute is that the appellant and
another individual were apprehended by Mr Machaka and his colleague , after
which the members of the South African Police Service were summoned to the
scene.
[6] When the police arrived on the scene, the appellant had already been
arrested and detained in terms of s 42 of the Criminal Procedure Act 51 of 1977
(the Act) by a private individual. Section 42 of the Act provides that:
‘(1) Any private person may without warrant arrest any person-
(a) who commits or attempts to commit in his presence or whom he reasonably
suspects of having committed an offence referred to in Schedule 1;
(b) whom he reasonably believes to have committed any offence and to be escaping
from and to be freshly pursued by a person whom such private person reasonably believes
to have authority to arrest that person for that offence;
(c) whom he is by any law authorized to arrest without warrant in respect of any offence
specified in that law;
(d) whom he sees engaged in an affray.
(2) Any private person who may without warrant arrest any person under subsection
(1) (a) may forthwith pursue that person, and any other private person to whom the
purpose of the pursuit has been made known, may join and assist therein.
(3) The owner, lawful occupier or person in charge of property on or in respect of which
any person is found committing any offence, and any person authorized thereto by such
owner, occupier or person in charge, may without warrant arrest the person so found.’
owner, occupier or person in charge, may without warrant arrest the person so found.’
Having been detained and arrested, he was then handed over to the SAPS and
transported to the Durban Central Police Station where, according to the appellant,
he was later assaulted. He subsequently appeared in court and after which the
charges against him were withdrawn and he was released. He thereafter instituted
an action claiming damages for his unlawful arrest, detention and assault.
4
[7] During the course of the trial it was common cause that the appellant was
arrested by Mr Machaka. The latter furnished a statement to the police indicating
that the appellant and two other occupants of a motor vehicle had:
‘… [B] een seen by me at different FNB branches involved in various card swapping
activities ... [T]hey were already on the bank watchlists. I therefore identified them by
faces.’ (Sic.)
The police had before them a credible report as to why Mr Machaka had conducted
himself and effected the arrest in terms of s 42 of the Act.
[8] During the trial and on appeal much was said of the police’s duty to properly
investigate allegations levelled against individuals , to guard against un lawful
arrests and arbitrary deprivation of one’s liberty. This, however, overlooks a more
fundamental point which was specifically raised by the Magistrate in his judgment,
namely, the failure to join Black Dolphin. It was common cause that the appellant
was not detained nor arrested by the police. His arrest was carried out by a private
security officer. This is borne out explicitly from the evidence of the appellant
himself. His evidence under cross-examination is relevant:
‘Mr Xulu : You were arrested by two investigators who worked for Black Dolphin
Investigators?
Plaintiff : I do not know, they did not introduce themselves to me. They were not
employed by SAPS. They did not introduce themselves to me.
Mr Xulu : You were not arrested by the police?
Plaintiff : Yes, it is not okay.
Mr Xulu : You were not taken out of the car by the police?
Plaintiff : Yes, if you say so.
Mr Xulu : You were handcuffed and arrested by people of Black Dolphin.
Plaintiff : Okay.’
[9] The magistrate correctly identified that there was a non -joinder of Black
Dolphin and, accordingly, the issue of the appellant’s arrest stands to be decided
on whether there was a material non-joinder of Black Dolphin.
5
[10] It has long been established that a party with a direct and substantial
interest must be joined as a party to any litigation for there to be an effective
judgment.2 In Matjhabeng Local Municipality v Eskom Holdings Limited and
Others,3 the Constitutional Court held that:
‘The law on joinder is well settled. No court can make findings adverse to any person's
interests, without that person first being a party to the proceedings before it. The purpose
of this requirement is to ensure that the person in question knows of the complaint so that
they can enlist counsel, gather evidence in support of their position, and prepare
themselves adequately in the knowledge that there are personal consequences —
including a penalty of committal — for their non-compliance. All of these entitlements are
fundamental to ensuring that potential contemnors' rights to freedom and security of the
person are, in the end, not arbitrarily deprived.’ (Footnote omitted.)
[11] Khumalo v Wilkins and Another4 held that:
‘the Court will not deal with those issues without such a joinder being effected, and no
question of discretion nor of convenience arises ...’
The Constitutional Court in De Klerk v Minister of Police 5 said the following in
relation to the non-joinder of a concurrent wrongdoer:
‘[82] The applicant did have alternative avenues of recourse regarding his unlawful
detention after the remand order beyond only pursuing a claim against the respondent.
There appear to have been multiple, concurrent wrongdoers in this matter. They all
contributed to a systemic failure that led to the applicant being unlawfully detained for
seven days. These parties were not joined and are not before us, and we are thus unable
to pronounce definitively on their liability.
[83] The Minister of Justice and Director of Public Prosecutions might be jointly and
severally liable with the Minister of Police, but it is sufficient for one of them to be sued for
their proven delict for the applicant to succeed. A plaintiff may elect to sue only one person
whose delict caused her harm, even if another person's independent delict also caused
that same harm. It is not obligatory that all joint wrongdoers be sued in the same action.
Where all joint wrongdoers have not been sued, a court i s not barred from determining
2 Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at 659 to 660.
3 Matjhabeng Local Municipality v Eskom Holdings Ltd and Others [2017] ZACC 35; 2018 (1) SA 1
(CC) para 92.
4 Khumalo v Wilkins and Another 1972 (4) SA 470 (N) at 475A.
5 De Klerk v Minister of Police [2019] ZACC 32; 2020 (1) SACR 1 (CC) 1.
6
the liability, if any, of the party or parties before it. This happened in Carmichele
(and K and F), where the plaintiff sued only the state officials for their delict, and not the
party who had actually assaulted her.
[84] This matter is similar. There are potential concurrent wrongdoers: the Minister of
Justice, the Minister of Police and the relevant Director of Public Prosecutions. Each of
these actors may have committed independent delicts resulting in harm to the a pplicant.
This would render them jointly and severally liable. So, while Mr De Klerk may successfully
sue only one wrongdoer, it does not follow that the others did not commit a delict.
[85] The Apportionment of Damages Act then provides that where a plaintiff successfully
sues only one of the concurrent wrongdoers, then that wrongdoer can bring a claim of
contribution against the other wrongdoers that were not sued by the plaintiff. It i s open
then to the Minister of Police to bring a claim of contribution against the Minister of Justice
or Director of Public Prosecutions if the requirements for concurrent wrongdoing are met.
These latter actors are absolved of liability as against the applicant, because the Minister
of Police will foot the bill, but they may still be liable for contribution claims at the instance
of the Minister.’ (Footnotes omitted).
[12] The appellant, however, did not plead apportionment nor did he seek to
amend his particulars after the respondent filed an amended plea specifically
averring that the appellant had been arrested by Mr Machaka, an employee of a
private security company. Bound by these authorities, the magistrate had no
discretion to overlook the non -joinder of Black Dolphin and consequently
dismissed the appellant’s claim of unlawful arrest, as pleaded.
[13] We agree with the finding of the court a quo that the non-joinder of Black
Dolphin was fatal and consequently dispositive of the appellant’s claim of unlawful
Dolphin was fatal and consequently dispositive of the appellant’s claim of unlawful
arrest. The appellant placed nothing before this Court on appeal pointing to a
misdirection by the court a quo on the facts or the law. Accordingly, the appellant’s
appeal on this leg must be dismissed.
[14] We are obliged to record that at the hearing of the appeal, Ms Buthelezi
who appeared for the appellant, informed the court that the appellant was not
persisting with his claim based on the unlawful arrest, but intended to proceed with
7
the appeal based only on his unlawful detention. The abandonment of a significant
part of the appeal was not communicated to the Court prior to the hearing. We
were obliged to read the entire record, the heads of argument and all thirteen cases
cited by the appellant’s counsel relating to the issue of the unlawful arrest. Apart
from a waste of the court’s time and resources, the manner and lateness of the
abandonment reflected a casual flippancy demonstrating a lack of respect for this
Court. Counsel are first and foremost officers of the court and are expected to
conduct themselves accordingly. We say no more in this regard.
[15] In respect of the claim for unlawful detention, the essence of the argument
on behalf of the appellant was that the police had no reasonable grounds to justify
the arrest and that they should have applied their minds before detaining him as
the appellant was not identified by the complainant as being involved in the card
swapping activity, and he was identified by Mr Machaka as merely the driver of the
car. A further argument raised was that the police ought to have obtained the video
surveillance evidence from the bank before deciding to detain the appellant.
[16] These arguments lose sight of the factual context of the arrest and the
detention by the police . The arrest by Mr Machaka occurred late on a Friday
afternoon, before a long weekend. There was no evidence to suggest that video
surveillance footage could have been obtained after business hours from the bank.
The appellant was taken from the scene of the alleged crime and transported to
the police station. He was informed of his rights in terms of s 35 of the Constitution,
including his right to remain silent and his right to be brought before a court as
soon as reasonably possible but not later than 48 hours after his arrest, or before
the end of the first court day after the expiry of the 48-hour period.
[17] The appellant confirmed in writing that his rights, referred to above, were
[17] The appellant confirmed in writing that his rights, referred to above, were
conveyed to him at 17h50 on Friday, 29 April 20 16. The witness statement from
Mr Machaka was deposed to at 19h00. Within this timeline, counsel for the
appellant was unable to indicate when the police should have obtained the video
surveillance footage that was said to implicate the appellant. As stated earlier, the
8
appellant was arrested late on a Friday afternoon, and in circumstances where the
first court day after the expiry of the 48-hour period would only occur after the long
weekend, on Tuesday, 3 May 2016.
[18] Importantly, once the appellant abandoned the argument that the arrest
was unlawful, the only issues which ordinarily remain ed was whether the police
had a reasonable suspicion to detain the appellant and whether the appellant had
proven on a balance of probabilities that he was assaulted while in detention.
[19] Regarding the contention that the police acted maliciously in refusing to
grant the appellant bail on the day of his arrest, it is tri te that bail recognises an
awaiting-trial accused’s right to liberty while he or she is presumed innocent. It is
not a form of anticipatory punishment. Section 50 of the Act provides that:
‘(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.
(b) A person who is in detention as contemplated in paragraph (a) shall, as soon as
reasonably possible, be informed of his or her right to institute bail proceedings.
(c) Subject to paragraph (d), if such an arrested person is not released by reason that-
(i) no charge is to be brought against him or her; or
(ii) bail is not granted to him or her in terms of section 59 or 59A,
he or she shall be brought before a lower court as soon as reasonably possible, but not
later than 48 hours after the arrest.
(d) If the period of 48 hours expires-
(i) outside ordinary court hours or on a day which is not an ordinary court day, the
accused shall be brought before a lower court not later than the end of the first court day.’
At the same time, a lawful arrest does not necessarily require that an arrested
At the same time, a lawful arrest does not necessarily require that an arrested
person remain detained until the first court appearance , especially in
circumstances where the accused is charged with a minor offence . The Act
permits release on bail by the police before a first court appearance . This is
commonly referred to as police bail.
9
[20] In this appeal, it is a matter of record that the appellant was charged with
theft and had three previous convictions for the same offence .6 In traversing his
detention, the appellant conceded under cross-examination that he was informed
that he was not eligible to obtain police bail in light of his previous convictions. Mr
Xulu for the respondent submitted that the appellant’s previous convictions as well
as the evidence against him in the form of Mr Machaka’s statement constituted a
lawful basis that prevented him from being granted police bail in terms of s 59 of
the Act, which provides that:
‘(1) (a) An accused who is in custody in respect of any offence, other than an offence-
(i) referred to in Part II or Part III of Schedule 2;
(ii) against a person in a domestic relationship, as defined in section 1 of the Domestic
Violence Act, 1998 (Act 116 of 1998); or
(iii) referred to in-
(aa) section 17 (1) (a) of the Domestic Violence Act, 1998;
(bb) section 18 (1) (a) of the Protection from Harassment Act, 2011 ( Act 17 of 2011 );
or
(cc) any law that criminalises a contravention of any prohibition, condition, obligation
or order, which was issued by a court to protect the person against whom the offence in
question was allegedly committed, from the accused, may, before his or her first
appearance in a lower court, be released on bail in respect of such offence by any police
official of or above the rank of non -commissioned officer, in consultation with the police
official charged with the investigation, if the accused deposits at the police station the sum
of money determined by such police official (My emphasis.)
[22] Section 59(1)(a)(i) provides that an accused may be released on police bail
where he or she is charged with an offence other than that falling under Part II or
Part III of Schedule 2. The appellant was arrested on a charge of theft, which does
Part III of Schedule 2. The appellant was arrested on a charge of theft, which does
not fall under Part II or Pa rt III of Schedule 2. However, the respondent contends
that police bail could not be granted and the detention of the appellant until his
appearance in court on 3 May 2016, being the next ordinary court day, was justified
6 The court a quo erroneously recorded in its judgment that the appellant had one (1) prior
conviction for theft. The SAP 69 issued by the SAPS Criminal Record Centre reflects that the
appellant had 3 previous convictions for theft.
10
by s 60(11)(b) of the Act which permitted his continued detention where he is
charged for an offence under Schedule 5 of the Act, which refers to an offence
under Schedule 1 of the Act, including theft, where the suspect has previous
convictions. Section 60(11) provides that:
‘(11) Notwithstanding any provision of this Act, where an accused is charged with an
offence-
…
(b) referred to in Schedule 5, but not in Schedule 6, the court shall order that the
accused be detained in custody until he or she is dealt with in accordance with the law,
unless the accused, having been given a reasonable opportunity to do so, addu ces
evidence which satisfies the court that the interests of justice permit his or her release.’
[23] On this interpretation the contention that the police failed or refused to grant
the appellant police bail does not arise, given his prior convictions for theft. In any
event, as noted earlier, the alleged refusal of police bail was not properly pleaded
as part of the appellant’ s case with sufficient particularity, and was only obliquely
raised during the hearing of the evidence . In Kali v Incorporated General
Insurances Ltd,7 the court held that:
‘… [A] pleader cannot be allowed to direct the attention of the other party to one issue and
then, at the trial, attempt to canvass another ...’
[24] However, it bears noting that the magistrate did consider this aspect , and
concluded:
‘Given the Plaintiff’s previous conviction for theft, it followed that the detention from 29
April 2016 to 3 May 2016 was justified and the members of the Defendant were not remiss
in keeping Plaintiff in custody as they did.’
[25] In his grounds of appeal, the appellant contended that the court a quo erred
‘... [I]n finding that … [the] detention was justified because the appellant had a previous
conviction for theft.’ It is noteworthy that no reference is made as a ground of appeal
to the issue of a failure to consider the grant of police bail as an omission giving
to the issue of a failure to consider the grant of police bail as an omission giving
7 Kali v Incorporated General Insurances Ltd 1976 (2) SA 179 (D) at 181H-182A.
11
rise to a claim for damages . Nor did the appellant advance this point with any
conviction, either in the heads of argument or at the hearing of the matter. Neither
counsel referred us to any c ase authority on this aspect. Even though this issue
was not canvassed directly in the pleadings or in evidence, to the extent that i t
could fall to be considered as forming part of the claim for unlawful detention we
consider it proper to deal with the issue of police bail, in light of the oblique
reference to it in t he record. In Makofane William Mohlala v MEC for Transport,
Limpopo and Others 8 the SCA found that once an accused person has been
charged, the police are under a n obligation t o ascertain whether the detainee
wishes to have the possibility of release on police bail considered. In Mohala, the
Supreme Court of Appeal (the SCA) held that:
‘… [E]ven where an arrest is lawful, police officers must apply their minds to whether the
detainee should remain in custody. This necessarily includes consideration of whether
detention is required at all, and a failure to do so may render the ensuing detention
unlawful.’ (Footnotes omitted.)
[26] The point of departure from this appeal and that in Mohala is that th e
appellant did not plead his case as one in which damages w ere claimed on the
grounds of the failure of the police to consider and apply their minds to whether he
ought to have been granted police bail. In Imprefed (Pty) Ltd v National Transport
Commission,9 the Appellate Division held that:
“The whole purpose of pleadings is to bring clearly to the notice of the Court and the parties
to an action the issues upon which reliance is to be placed.”’
[27] In Mohala the SCA held that:
‘[14] ... [T]he case he advanced, both on the pleadings and at trial, was that members of
the SAPS acted unlawfully by keeping him detained in circumstances where they were
entitled and permitted by the Act to release him on police bail ...’ (Footnote omitted.)
entitled and permitted by the Act to release him on police bail ...’ (Footnote omitted.)
8 Makofane William Mohlala v MEC for Transport, Limpopo and Others [2026] ZASCA 55 (Mohala)
para 12.
9 Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) at 107C.
12
[28] In addition, Mohala is distinguishable from the present appeal , particularly
where the SCA held that:
‘[17] … [M]r Mohlala’s uncontested evidence was that he was never informed that he could
apply for bail while in police custody following his arrest, with the result that he did not do
so. It must be accepted that whatever rights were read to him by Mr Mbon ani at the time
of arrest did not include any mention of the possibility of bail …’ (Footnote omitted.)
[29] In the present matter, the appellant confirmed under cross-examination that
he was given a copy of the rights in terms of s 35 of the Constitution which were
explained to him, and for which he acknowledged in writing. This included his right
to apply for bail. He testified that he enquired regarding police bail but was informed
that he would have to wait until the next court day, being 3 May 201 6. It was then
put to him under cross -examination that the reason for police bail not being
available to him was because of his previous convictions for theft. This accords
with the argument referenced earlier as to why it was not open to grant the
appellant police bail in terms of s 59 of the Act.
[30] For the reasons we have referred to earlier, the failure of the police to have
consider the grant of police bail was neither pleaded in the particulars of claim nor
traversed specifically in evidence as a basis for the appellant’s claim. We are of
the view that even if the point is good, it is distinguishable from the facts in Mohala.
Moreover, the point cannot properly be raised for the first time on appeal . In
Robinson v Randfontein Estates GM Co Ltd,10 the Appellate Division held that:
‘… [Th]e trial Court been of opinion th at the arrangements of December 1904 and July 1905 had
not been fully investigated and that the absence of a plea raising the specific defence in question
had prejudiced the appellant, an order directing the filing of an amended plea would indubitably
have been made. No such order issued. And after carefully considering this very bulky record, I
find myself in agreement with the views expressed by CURLEWIS, J.P., upon the point. (Volume
1, pp. 101-2.) The object of pleading is to define the issues; and parties will be kept strictly to their
pleas where any departure would cause prejudice or would prevent full enquiry. But within those
limits the Court has a wide discretion. For pleadings are made for the Court, not the Court for
pleadings. And where a party has had every facility to place all the facts before the trial Court and
10 Robinson v Randfontein Estates GM Co Ltd 1925 AD 173 at 198
13
the investigation into all the circumstances has been as thorough and as patient as in this instance,
there is no justification for interference by an appellate tribunal, merely because the pleading of the
opponent has not been as explicit as it might have been. We are therefore bound to give full effect
to the failure of the appellant to establish the genuineness of the contract upon which he relies …’.
[31] Turning to the issue of the alleged assault, the clear evidence of the police
officers who collected the appellant, namely, Sergeant (Sgt) Nzuza and
Sgt Sithole, was that there was no assault of the appellant by them during the time
they spent with him. He was subsequently transported to Durban Central Police
Station where the matter was further investigated by Detective Mthembu who,
likewise, testified that there was no such assault.
[32] During the course of the appellant’s case, his version was that he was
assaulted by an Indian officer. The respondent duly called Sgt Shaylin Naidoo who
was the only Indian officer on duty on 29 April 2016. During the cross-examination
of Sgt Naidoo it was put that it was not him , but another Indian officer who was
responsible for the alleged assault. Faced with this version, the specific evidence
was that there was no other Indian officer other than Sgt Naidoo on duty at the
relevant time. Additionally, a new version was also put to Sgt Sithole in cross -
examination that she also assaulted the appellant, a version which was neither led
in evidence nor put to any of the other witnesses , a clear an d unequivocal
demonstration of a recent fabrication.
[33] The entire evidence of the assault and the twerking, which was equally
denied, is predicated largely upon a medico-legal certificate ( J88) which notes
bruises on the wrists and numbness of the left thumb and index finger. The J88
also records that the left side of the appellant’s jaw was tender. Unfortunately for
also records that the left side of the appellant’s jaw was tender. Unfortunately for
the appellant, the J88 is supportive of injury to the wrist and hands, which is entirely
consistent with him having been handcuffed by Mr Machaka from Black Dolphin,
but the injuries are inconsistent with, and do not corroborate, the alleged assault .
The tenderness to the jaw is not explained and, whilst the J88 was accepted into
evidence, the nature and extent of the injury is undefined.
14
[34] Faced with the evidence of four police officers, all of whom disavowed any
knowledge of an assault, and the appellant’s version which shifted as the trial
proceeded that it was perpetrated by another police officer and not those who had
been called to give evidence, it is hardly surprising that the magistrate found that
the appellant had failed to discharge his onus to prove th e assault. In such
circumstances, the magistrate’s decision to dismiss the claim for the assault is
equally justified on the na ture of the evidence led and the clear contradictions in
the appellant’s version.
[35] It is trite that the powers of a court of appeal to interfere with the findings of
a trial court are limited. In Mavundla v MEC, Department of Co -Operative
Government and Traditional Affairs, KwaZulu-Natal,11 the court held that:
'[87] This Court has, on many occasions, accepted and applied the principles enunciated
in Knox and Media Workers Association . An appellate court must heed the standard of
interference applicable to either of the discretions. In the instance of a discretion in the
loose sense, an appellate court is equally capable of determining the matter in the same
manner as the court of firs t instance and can therefore substitute its own exercise of the
discretion without first having to find that the court of first ins tance did not act
judicially. However, even where a discretion in the loose sense is conferred on a lower
court, an appellate court’s power to interfere may be curtailed by broader policy
considerations. Therefore, whenever an appellate court interferes wi th a discretion in the
loose sense, it must be guarded.
[88] When a lower court exercises a discretion in the true sense, it would ordinarily be
inappropriate for an appellate court to interfere unless it is satisfied that this discretion was
not exercised —
"judicially, or that it had been influenced by wrong principles or a misdirection on the
"judicially, or that it had been influenced by wrong principles or a misdirection on the
facts, or that it had reached a decision which in the result could not reasonably have
been made by a court properly directing itself to all the relevant facts and principles.”’
[36] With the issue of the non -joinder being definitive of the question of the
unlawful arrest, the detention of the appellant being a lawful consequence of the
11 Mavundla v MEC, Department of Co -Operative Government and Traditional Affairs, KwaZulu -
Natal 2025 (3) SA 534 (KZP) para 8.
15
arrest with the police having no discretion to grant him police bail in light of the
charge of theft and his previous convictions for the same offence together with
clear contradictions regarding the appellant’s version of the assault and who
assaulted him, the magistrate’s decision to dismiss the action cannot be faulted.
There was no misdirection by the magistrate and, accordingly, the appeal must
fail.
[37] There is no reason why costs should not as per the general rule, follow the
result, in Septoo and Another v Road Accident Fund, 12 where the SCA held that:
‘[22] The only question that remains for consideration is that of costs. The respondent as
the successful party in this litigation is entitled to costs as a general rule. Though the
general rule is that costs should follow the result, the issue of costs is an exercise of a
judicial discretion. In the case where a party has been successful, there must be
exceptional circumstances, to deprive the successful party of its costs. A court should take
into consideration the circumstances of each case, . . . the conduct of the parties and any
other circumstance which may have a bearing upon the question of costs, and then make
such order as to costs as would be fair and just between the parties.’ (Footnote omitted.)
Order
[38] The following order is made:
The appeal is dismissed with costs on Scale A.
________________
CHETTY J
________________
HARRISON J
12 Septoo and Another v Road Accident Fund [2017] ZASCA 164.
16
Appearances
For the appellant: M Buthelezi
Instructed by: Thami Ndlovu & Company
Address: C642 Amanzimtoti Road
Kwamashu
Ref: TN/tn/CVL 737
Tel: 083 593 7214
Email: thamindovu@telkomsa.net
For the respondent: MN Xulu
Instructed by: The State Attorney
Address: 6th Floor
Metropolitan Life Building
391 Anton Lembede Street
Durban
Ref: 123/3681/17/H/P34
Email: RSchalkwyk@justice.gov.za
Tel: 031 365 2500
Date reserved: 20 March 2026
Date of delivery: 5 June 2026