IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
APPEAL CASE NO: HCAA37 / 2024
COURT A QUO CASE NO: 9230/2022
(l ) REPORTABLE:~NO
(2) OF INTEREST TO OTHER JUDGES:.m/ NO
(3) REVISED:~ O
0-3 \ o b\~<u 2 b
Date
In the matter between:
THATO CLEARENCE SHILABYE APPELLANT
And
THE MINISTER OF POLICE RESPONDENT
JUDGMENT
2
NGOBENIJ
[1] This is an appeal against the whole judgment of Acting Judge Mashamba
(court a quo) which was handed down on 24 July 2024, in which the
appellant's claim for unlawful arrest and detention was dismissed. The
court a quo granted leave to appeal the said judgment on 05 September
2024 to the Full Court of the Limpopo Division of the High Court,
Polokwane. The appeal lies against the judgment in respect of the claim
for unlawful arrest and detention. The claim against the National Director
of Public Prosecutions (NDPP) was not pursued by the appellant.
[2] I will not restate the grounds of appeal verbatim, but a conspectus will
suffice for purposes of this appeal. The appellant's submission is that the
court a quo misdirected itself by evaluating the evidence in piecemeal and
by not considering the totality of the evidence presented. Thus, the
restated grounds of appeal are as follows:
(i) failure by the court a quo to find that the respondent (defendant)
had complied with section 40 (1) (b), of the Criminal Procedure Act
51 of 1977 (CPA) by arresting the appellant without a warrant of
arrest,
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(ii) on the evidence tendered the defendant failed to discharge the
onus on a balance of probabilities that the arrest and detention of
the appellant (plaintiff) was lawful in terms of section 40 (1) of the
CPA.
(iii) the court a quo erred in finding that any reasonable person in the
position of the police who has received information pertaining to the
identification of the appellant from the complainant would have
reasonable suspicion that the identified person, being the appellant
in this case, would have possibly committed the offence of rape and
robbery.
(iv) the finding by the court a quo, that the appellant possibly
committed the offences in question was erroneous, in that sergeant
Teffo confirmed that the complainant made two statements, and he
used the second statement to effect an arrest, and on the second
statement, he relied on a friend to identify the appellant. No
identification parade was held .
(v) the court a quo erred in finding that the further detention of the
appellant was not as a result of any misconduct, misleading
information or wrong act committed by the respondent.
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(vi) the detention of the appellant was unlawful and was directly linked
to misconduct committed by sergeant Teffo.
(vii) the court a quo should have ruled that section 40(1)(b) was never
complied with and dismiss the respondent's defence.
[3] The claim of the appellant arose from an arrest and subsequent detention
on 20 September 2020. He was arrested by sergeant Teffo (police
officer/investigating officer) on the allegations of rape that was allegedly
committed on 11 August 2020 at or around Moletji. The complainant was
on the date mentioned on her way walking to school at around 05h50 in
the morning, using the gravel road which goes through the bushes, when
she came across a male person who was running as if he was exercising.
The said male person asked her if she knows him, and she answered in
the negative.
[ 4] The male person demanded her cell phone, which he took out of her
school bag. He took out a knife and ordered her to go with him behind
the mountain holding her by the hand and threatening her. When they
arrived there, he forced her to take her clothes off and forcefully inserted
his penis into her vagina without her consent. After finishing he ordered
her to leave without screaming. She left and when she arrived at school,
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she reported the incident to the managers, and she was taken to the
clinic and the police were called.
[SJ A week after the alleged incident, the complainant was coming from
school with her friend when they met a cream white BMW motor vehicle,
and in that motor vehicle she saw the person who sexually violated her
on 11 August 2020. Her friend told her that she does not know the name
of that person but knew where that person stayed. The complainant
subsequently contacted sergeant Teffo to inform him as to who the
suspect was and where he stayed after she had established the identity of
the appellant. Sergeant Teffo and the complainant subsequently went to
the home of the appellant but did not find him but only found his mother
who confirmed his names.
[6] When the police officer went back to his office, upon investigations he
found that the appellant had a previous conviction of rape. The police
officer then saw it fit that the appellant be arrested because he already
had a previous conviction of rape and that there were allegations of rape
by the complainant that he was investigating. It only came out during
cross examination of the police officer that the appellant actually handed
himself at the police station after he was told that the investigating officer
was looking for him. The appellant was then arrested, charged and
detained by the investigating officer.
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[7] In the appeal this court has to decide as to whether the court a quo
misdirected itself by dismissing the claim of unlawful arrest and
detention. This court must at the end determine whether the arrest of the
appellant was justified or not. At this stage, I want to highlight some
issues in the judgment of the court a quo which I will later on deal with
fully. In dismissing the claim of the appellant on paragraph 42 of the
judgment the court a quo clearly stated in its findings that the police
made some investigations and found that the name given to them, was
that of the appellant who has a previous conviction for a similar offence,
and therefore any reasonable person who had received information on
identification of the appellant from the complainant would have a
reasonable suspicion that the appellant committed the said offences of
rape and robbery.
[8] The court a quo also found that the further detention of the appellant was
as a result of the findings of the Magistrate, after considering several
factors including the fact that the appellant had previous convictions, and
could therefore not find fault on the part of the respondent with regard to
the further detention of the appellant.
[9] The defendant's plea is based on the defence contained in Section 40(1)
(b) of the CPA which provides as follows:
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"A peace officer may without warrant arrest any person who he
reasonably suspects of having committed an offence referred to in
Schedule 1, other than the offence of escaping from lawful custody "
[10] Section 40(1)(a) of the CPA is the provision that requires the presence of
a police officer who is empowered to arrest without a warrant if the
offence is committed in his/her presence. In terms of section 40(1)(b), it
is not a requirement that the alleged offence must have been committed
in the presence of a police officer. There are jurisdictional requirements
as developed by case law which are applicable where the matter has to
be decided under the provisions of section 40(1)(b) of the CPA.These
jurisdict ional facts were set out in Duncan v Minister of Law and Order 1
as follows:
(a) The arrestor must be a peace officer;
(b) The arrestor must entertain a suspicion;
(c) The suspicion must be that the suspect (the arrestee) committed
an offence referred to in Schedule 1,
(d) The suspicion must rest on reasonable grounds.
1 [1986) 2 All SA 24 1(A) at 8 18G-H.
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[11] The jurisdictional facts cited above, were still confirmed by the same
court as in the Duncan case, supra, being the Supreme Court of Appeal
(SCA) in Minister of Safety and Security v Sekhoto and Another 2 . The Bill
of Rights guarantees the right of security and freedom of the person
which includes the right 'not to be deprived of freedom arbitrarily or
without just cause'. In cases of this nature, it is trite that the onus rests
on the respondent to justify an arrest, as was the position in the case at
hand.
[12] In Minister of Law and Order v Hurley 3 the court as per Rabie CJ, as he
then was, stated as follows:
'An arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems fair and just to require that the person
who arrested or caused the arrest of another person should bear the onus
of prov ing that his action was justified in law .'
[13] The Constitutional Court in Zealand v Minister of Justice and
Constitutional Development'\ confirmed that the burden is always on the
defendant to justify the arrest and detention.
2 201 1( 1) SACR 3 15 (SCA).
3 [I 986] 2 A ll SA 428 ( A).
4 2008 (4) SA 458 (CC) paragraphs 24 and 25, 'Reasonable and probable cause in the law of malicious prosecution: A
review of South African and commonwealth decisions' by Professor Chuks Okpaluba.
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[14] It wi ll be ideal to deal with this appeal according to the jurisdictional facts
or requ irements as set out in the Duncan case, supra. The appellant in
this appeal argues that the court a quo erred in finding that the
respondent had complied with the provisions of section 40(1)(b) of the
CPA in arresting the appellant without a warrant. It is now for this Court
to assess as to whether the evidence upon which the court a quo relied
on for its decision met the jurisdictional facts as set down in the cases of
Duncan and Sekhoto, supra.
(i) The arresting officer must be a peace officer.
[15] Section 40(1)(b) provides that a peace officer may without a warrant
arrest any person whom he reasonably suspects of having committed an
offence classified under schedule 1. It must be understood that the
schedule 1 that is referred to, is the one classified under the CPA, which
makes provision for classification of offences into 8 schedules relating to
different sections in the CPA. Schedule 1 offences are serious offences
that are referred to in sections 40 and 42 of the CPA, and the offences of
rape and robbery are classified under this schedule. Section 1 of the CPA
defines a peace officer to include a police official.
[16] A police official in terms of the CPA means any member of the force as
defined in Section 1 of the Police Act No. 7 of 1958 which has been
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amended by section l(b) of the Criminal Procedure Amendment Act 5 of
1991, which just took out some text, which is not relevant for this
discussion, but what remains is that the word 'police' has a corresponding
meaning to the word 'police official'. It is common cause that the police
officer who arrested the appellant and detained him is a member of the
South African Police Service (SAPS). It is also common cause that
sergeant Teffo was acting within the course and scope of his employment
with the respondent.
(ii) The peace officer must entertain a suspicion
[17] The crucial question that remains is whether the court a quo misdirected
itself by finding that the investigating officer entertained a reasonable
suspicion by arresting the appellant. The evidence of the complainant as
outlined in her first affidavit is to the effect that she did not know the
person who robbed and raped her. The submission by the appellant is
that she did not even state in her statement whether she would identify
that person if she saw him again or not. After the alleged incident one
week later, she then called the investigating officer and told him that she
has been told the name of the person who violated her, and she even
knew where he was staying. That prompted the investigating officer to go
to that particular home, although they did not find that suspected person.
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[18] The confirmation of the reasonable belief in the mind of sergeant Teffo
formed when he went back to the office and upon investigation found that
the person that he went to look for had a previous conviction of rape. He
then in his own evidence in court, as reflected on page 10 of the
transcribed record said the following:
"MR TEFFO: ... and the fact that I have seen M'Lord that he already has a
conviction of rape against him M'Lord I saw it fit that the suspect should
be arrested ".
[19] Sergeant Teffo went on to impress on how the issue of the previous
conviction bolstered his reasonable belief that the appellant was the
perpetrator of the alleged offences by say ing the following on pages 31 to
32 of the transcribed record:
"MR TEFFO: M'Lord before I discover the previous conviction the
complainant already had the name of the suspect . So, for me to get that
previous conviction just confirmed more".
[20] It is clear from the two paragraphs that I have quoted above , that the
need to investigate the matter further was curtailed because the
investigating officer had a reasonable belief that the appellant is the one
who committed the offences because he even had a previous conviction
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of rape. The court a quo, also fortified the reasonable belief of the
appellant in its judgment by stating that the belief of the police officer
was reasonable and justifiable. That appears in the judgment of the court
a quo on paragraph 42 of the court 's findings, and the fol lowing was said:
"The police further made some investigation and found that the names
given to them are for the plaintiff who have (sic) a previous convict ion of
similar offences. The police reasonable (sic) suspected that the plaintiff
might have committed the offence of rape and robbery. In my view, any
reasonable person in position (sic) of the police who has received the
identification of the plaintiff from the complainant, would have a
reasonable suspicion that the identified person, in this case the plaintiff,
has possibly committed the said offence of rape and robbery"
[21] It is clear from the paragraph that I have quoted above that the court a
quo in its findings, took into consideration that one of the aspects that
influenced the reasonable belief that the appellant committed the
offences he was charged with to the extent that arrest and detention
were justified was the issue of his previous conviction. I also take into
consideration that the statement of the friend of the complainant, who
told or showed her where the appellant stays was obtained on 13 March
2021, whereas the appellant was arrested on 20 September 2020. The
question should then be what supported the version of the complainant if
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the statement of the friend of the complainant was only obtained the
following year after the arrest and detention of the appellant.
[22] Having analysed the reasonable suspicion that the investigating officer
relied on to arrest and detain the appellant, I find that the mind and
reasoning of the investigating officer was clouded by the fact that the
appellant had a previous conviction of rape, and he therefore stopped
investigating the complaint and arrested the appellant on that basis. In
law that is unfortunately not the standard that is applied and that should
be discouraged in the strongest terms so that a wrong precedent is not
created. If that thinking and reasoning is not nipped in the bud, we will
have chaos in the criminal justice system if it is encouraged that people
be judged according to their past conduct .
(iii) The suspicion must be that the suspect committed an
offence referred to in the subsection.
[23] I have already dealt with the provisions of section 40 and 42 of the CPA
which deals with Schedule 1 offences to which the offences of rape and
robbery fall under, and therefore not necessary to repeat same.
[ 2 4 J The court however, in the Sekhoto case, supra, in paragraph 30 of the
judgment stated that the decision to arrest must be based on the
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intention to bring the arrested person to justice. The appellant handed
himself over to the police . If the purpose of arrest is to bring the arrested
person to justice, in my view the appellant should have just been charged
and taken to court without necessarily being detained. I must however be
clearly understood, as I am not saying that every person who hands
himself/herself over to the police must not be arrested and detained, but
the circumstances of each case would determine and dictate as to how
the case should be handled.
[25] In the case at hand I find that the arrest and detention was not justified
because the issue of identity was crucial in this case . If the investigating
officer was applying his mind reasonably, without being clouded by the
appellant's previous conviction , he might have allo wed him to appear in
court without being detained and continued to further investigate the
case or investigate first before he could let him appear in court. I find
that the investigating officer acted arbitrarily and without justification by
detaining the appe llant without a warrant before he could investigate and
form a reasonable suspicion or entertain a belief that the appellant
committed the offences in question.
(iv) The suspicion must be based on reasonable grounds .
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[26] The suspicion of sergeant Teffo for arresting and detaining the appellant
without a warrant was clearly not based on reasonable grounds as I have
dealt with that aspect in the preceding paragraphs of this judgment, and
there is no need for repetition.
[27] In the result, the decision by the court a quo that the arrest and
detention of the appellant on 20 September 2020 was based on lawful
reasonable grounds, stands to be set aside. In the circumstances I find
that the arrest and detention of the appellant was unlawful. Further, that
the respondent is liable to compensate the appellant 100% of the proven
damages for his unlawful arrest and detention.
[28] I now deal with the issue pertaining to quantum. The submission by the
appellant is that the respondent must compensate the appellant for the
whole period that he has been incarcerated, being 20 September 2020 to
09 March 2022 when he was released. The duration of the detention as
submitted by the appellant is 492 days, which the appellant submits that
an amount of R37 500-00 must be allocated for each day which will then
make a total of R18 450 000-00.
[29] The appellant explained that he was initially detained at Seshego police
holding cells under filthy and horrible conditions, as the cell in which he
was kept had a bad smell due to the condition of the toilet. There were no
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beds in the cell he was, and he slept on the floor with one blanket which
was very dirty and had bed bugs which caused him to itch. The showers
were not working and there was no water. He stayed there for three
months. He was later moved to Polokwane Correctional Service Centre
(prison), where he stayed for one year three months, and it was at the
peak of the corona virus pandemic, and he was given one musk for the
whole duration of his stay.
[30] The appellant in that regard referred the court to three cases, but I wi ll
only refer to one of them, which I could find easily when I searched,
being the case of Mvu v Minister of Safety and Security and Another 5 ,
where an amount of R30 000-00 was awarded to the plaintiff who was
detained just for a day. The plaintiff in the said case, Mnoneleli Maxwell
Mvu was an Inspector in SAPS, charged with malicious damage to
property . The difference in the Mvu case, supra , and the case at hand is
that the social standing differs, which is one of the aspects that the court
has to consider when awarding damages.
[31] The appellant specifically asks this court to award an amount which is
calculated at R37 500-00 per day, following the practice that has
developed in the North West Div ision of the High Court (North West) of
5 2009 (2) SACR 291 (GSJ) (31 March 2009).
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awarding RlS 000-00 per each day that a person is in detention .
However, in the case at hand the proposed amount was even taken
higher following the case of De Klerk v Minister of Police6, which the
appellant submits was calculated at R37 500-00 per day.
[32] The trend or practice of the automatic calculation of damages which the
SCA in Motladile v Minister of Police7 , referred to as a 'one size fits all '
practice which was followed in North West in several cases8 was
discouraged. It is however comforting that North West, following the
Motladile judgment , supra , acknowledges that the trend of mechanical
approach of calculation of damages that they followed in many cases
cannot be sustained, and that was illustrated in Sediro v Minister of
Police9 , where Wessels AJ said the following on paragraph 23 of the
judgment:
"23 . In Motladile , the SCA specifically criticized the practice that had
developed in North West Division of applying a 'one size fits all'
approach of R15 000-00 per day to damages claims for unlawful
6 [20 19] ZACC 32 (22 August 2019).
7 (414/2022) [2023) ZASCA 94; 2023(2) SACR 274 (SCA) (12 June 2023).
8 Mocumi v Minister of Police and Another Case number CIV APP9/202 I (3 December 2021 ), Tobase v Minister of
Police CIV APP MG I 0/2021 (3 December 202 1 ), Ngwenya v Minister of Police (924/20 16) [20 19] 3 ZANW HC 3 (7
Feb ruary 20 19), Gulanc v M ini stc ,· of Poli ce C IV APP MG 2 1/20 19, Mats h c v M inister of Police C IV APP R C 10/2 0 2 0 ,
Nabuihe v Minister of Police 2273/2019 NWHC (9 March 2022).
9 (534/202 1) [2026) ZANWHC 73 (26 March 2026).
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arrest and detention , holding that such a mechanical approach
constitutes a misdirection ...
24. This Division has since applied the principles enunciated in Motladile
in a manner that reflects the importance of tailoring each award to
the specific facts of the case. In Lenoke v Minister of Police 10 Reddy
J reaffirmed that the assessment of damages is not a mechanical
exercise that regards only the number of days spent in detention
and awarded R30 000 for approximately three hours of detention
coupled with assault. In Mmadu v Minister of Police 11 Hendricks JP
awarded R60 000 for detention of 28 hours , together with a
separate award of R100 000 for a severe assault involving
suffocation and loss of consciousnes s".
[33] I have demonstrated that the SCA discourages the mechanical manner of
calculation of damages, and in Motladile, supra, the court clearly stated
that each case must be decided on its own merits. The SCA went further
to give direction as to what the courts should consider when awarding
damages, and for the sake of context I am going to quote paragraph 17
of the Motladile judgment, supra, which states that:
10 (CIV APP MG 27/2023) (2024) ZANWHC 277 (6 November 2024).
11 (3058/20 19) (2024] ZANWHC 143 (21 June 2024).
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"[17] The assessment of the amount of damages to award a plaintiff who
was unlwful/y arrested and detained, is not a mechanical exercise that
has regard only to the number of days that a plaintiff had spent in
detention. Significantly, the duration of the detention is not the only
factor that a court must consider in determining what would be fair and
reasonable compensation to award. Other factors that a court must take
into account would include (a) the circumstances under which the arrest
and detention occurred; (b) the presence or absence of improper motive
or malice on the part of the defendant; ( c) the conduct of the defendant;
(d) the nature of the deprivation; (e) the status and standing of the
plaintiff; (f) the presence or absence of an apology or satisfactory
explanation of the events by the defendant ; (g) awards in comparable
cases; (h) publicity given to the arrest; (i) the simultaneous invasion of
other personality and constitutional rights ; and (j) the contributory action
or inaction of the plaintiffl- 2 " .
[34] In casu, the appellant was arrested after the complainant had opened a
case, but the investigating officer's mind was clouded by the previous
conviction that the appellant has, but that in my view cannot be said to
be improper motive or malice on the part of the investigating officer,
because in my view he just wanted to arrest the appellant as he thought
12 JM Potgieter et al, Visser & Potgieter Law of Damages 3 ed (20 12) at 545-548; HB Klapper Damages (20 17) at 255-
259.
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that he had enough evidence, including record of the previous conviction.
There was no embarrassing public display of his arrest in front of his co
villagers as he handed himself over to the police. The appellant is a
relatively young man who was 34 years of age when he testified on 23
May 2024 .
[35] He was not married at that time. He did not have children at that time.
He has been having a stall at the market at Moletji taxi rank since the
year 2018. With the greatest of respect to the appellant, there is nothing
outstanding about him which the court a quo was told when he testified.
The appellant does not hold a job as a professional in the competitive
workplace out there. I do take into consideration that the appellant was
detained in horrible conditions. The period upon wh ich the appellant was
detained, is relatively long.
[36] In the case at hand it is common cause that after the appellant was
arrested and detained, he was taken to court to appear where at first
appearance the matter was postponed so that the profile of the appellant
could be obtained before he could bring a bail application. It has become
apparent that as at the time when the matter was postponed, the
investigating officer was already in possession of information pertaining
to the profile of the appellant, meaning that it was not actually necessary
to postpone the case at that stage for the profiling of the appellant
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because that information was already available, his was just to bring a
bail application .
[37] The submission by the respondent is that after the appellant appeared in
court, his detention henceforth was as a result of the Magistrate not
granting the appellant bail , and therefore the respondent even if it is
found that the arrest and detention were unlawful, after the
postponement by the Magistrate , the respondent must not be held liable
after the first appearance of the appellant in court . The appellant however
prays that the respondent be held liable for all the period that the
appellant was incarcerated. The Constitutional Court (CC) settled that
issue in the De Klerk 's case, supra , by not confirming the majority
judgment in the Sekhoto case, supra , which held that the respondent
cannot be liable for the applicant's detention after his first court
appearance , where the SCA' s reasoning was that what happened in court
and thereafter cannot be placed before the doorstep of the respondent.
[38] In order to determine liability after first appearance of the appellant in
court, I am guided by the explanation in the De Klerk 's majority judgment
on the diffe rentiation between factual causation and legal causation .
Factual causation relates to the question whether the act or omission
caused or materially contributed to the harm, whereas legal causation is
concerned with the remoteness of the damage. The CC succinctly
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explained what factual causation is by saying the following in paragraph
24 of the judgment:
"[24] ... The "but for" test (conditio sine qua non) is ordinarily applied to
determine factual causation. If, but for a wrongdoer's conduct/ the
harm would probably not have been suffered by a claimant/ then
the conduct factually caused the harm". (Footnotes left out) .
[39] In the case at hand, had it not been for sergeant Teffo, who arrested the
appellant, the appellant would not have appeared before the Magistrate,
who then remanded the appellant in custody . The respondent is therefore
liable for damages that resulted from the detention of the appellant for
the whole period that the appellant was detained.
[ 40] In Minister of Security v Tyulu 13 , on paragraph 26 the SCA said:
"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.
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13 2009 (5) SA 58 (SCA).
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[ 41] On the issue of costs, there is no reason why costs should not follow the
result.
[ 42] In the result the following order is made:
(i) the appeal is upheld,
(ii) the order of the court a quo dated 24 July 2024 is set aside, and replaced
with the following order:
"(a) the Minister of Police (respondent) is ordered to pay Rl 500 000-00,
with interest at the prescribed rate from 24 July 2024 (date of judgment
in the court a quo) to date of payment,"
(iii) the Minister of Police is ordered to pay costs on party and party scale,
including counsel's fee on scale B.
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J.T. NGOBENI
JUDGE OF THE HIGH COURT
I AGREE
JUDGE OF THE HIGH COURT
I AGREE M.H.M MASILO
ACTING JUDGE OF THE HIGH COURT
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APPEARANCES:
For the appellant:
Instructed by:
For the respondent:
Instructed by:
Date heard:
Date of delivery:
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Adv. Mokwena
Ntiyiso Mathebula Attorneys
Adv. E.K. Tsatsi SC
Office of the State Attorney, Polokwane
24 April 2026
03 June 2026
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