IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
NOT REPORTABLE
Case no: 73/2024
In the matter between:
SIMPHIWE NKWATENI Plaintiff
and
MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES Defendant
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Govindjee J
Background
[1] The plaintiff, a correctional officer employed at the East London Correctional
Centre, returned to work after his lunch break on 7 July 2023. He was intercepted by
his supervisor, Mr Mrhasi, before he could re -enter the prison section and be
subjected to the usual pat down search. He accompanied Mr Mrhasi to his office and
was informed that information had been received suggesting that he was bringing
contraband into the facility. The subsequent search revealed no contraband, was
conducted without a warrant and caused the plaintiff considerable upset. The plaintiff
instituted an action for damages arising from an allegedly unlawful or malicious
bodily search. The central disputes concern whether the search was consensual and
lawfully undertaken, including the manner and extent of the search. The plaintiff also
avers that the search was malicious.
[2] It is common cause that the search occurred in Mr Mrhasi’s office (the office),
with the door closed, in the presence of Mr Mrhasi, Mr Van Eck and Mr Botes (the
supervisors). The factual disputes include whether the plaintiff consented to the
search or not, whether he removed his own clothing or whether the supervisors did
so, whether all the plaintiff’s clothing was removed, including his underwear, whether
or not he was made to turn to the wall and squat, and whether the blinds in the office
were slanted or in a poor condition so that passers -by could observe the plaintiff in a
state of undress. The issues also include whether the absence of a warrant, the use
of Mr Mrhasi’s office, the absence of a witness of the plaintiff’s choosing, and the
failure to employ other possible means of search rendered the search unlawful.
The plaintiff’s case
[3] The plaintiff was employed by the Department of Justice and Correctional
Services as a prison warder, stationed in East London. On 7 July 2023, he was
summoned by his supervisor and unit manager, Mr Mrhasi, as he returned from a
lunch break. He accompanied Mr Mrhasi to his office. Mr Van Eck, a supervisor
working in the single cells unit, was also present. Mr Mrhasi informed the plaintiff that
he had received information alleging that the plaintiff was carrying drugs. The plaintiff
requested that a shop ste ward from his union be summoned. Mr Van Eck produced
a mobile phone and the plaintiff was able to contact his shop steward. He was
a mobile phone and the plaintiff was able to contact his shop steward. He was
informed that the shop steward was in a different part of the city and requested that
Mr Mrhasi and Mr Van Eck await his return. They refused to do so and indicated that
they intended to search the plaintiff. The plaintiff requested the presence of another
person, whom he described as a ‘witness’.
[4] Mr Mrhasi left the office and returned in the company of Mr Botes, the head of
the centre. Mr Botes enquired, in a tone the plaintiff perceived to be rough, whether
he was refusing to be searched. The plaintiff explained that he had requested the
presence of a witness and enquired whether it was permissible for him to be
searched without a witness being present. Mr Botes informed him that this was
possible, before leaving the room and returning with a copy of the applicable
legislation. The plaintiff was required to sign the document and did so, before
requesting and receiving a copy. In his mind, the plaintiff was unhappy about what
had transpired and intended to complain at a later stage.
[5] Thereafter, the plaintiff was strip -searched in a manner that he described as
‘forceful’, based on his perception that he had not consented to the search and
because a witness of his choice was not present. Those responsible for the search
were his superiors and the plaintiff believed that he had no option but to comply with
their demand. All his clothes were removed. While the door of the office was closed,
there were gaps in the blinds, which were old and tattered, so that it was possible for
someone outside the room to observe the search. Mr Mrhasi had seen Mr Mabaso
passing outside the window and suggested that the plaintiff call him to serve as a
witness, which he refused because he suspected Mr Mabaso to be friendly with
members of management, and based on his concern that Mr Mabaso would not tell
the truth about what he observed. Instead, the plaintiff requested the presence of Mr
Kafile and contacted him using his own phone. Mr Kafile arrived and, on the
plaintiff’s version, was not permitted to remain in the office as a witness.
[6] As for the actual search, the plaintiff explained that Mr Mrhasi had forcefully
removed his clothing, which was given to the others for a thorough search. He was
stripped naked, instructed to turn around and face the wall and to squat, to ensure
that he was not retaining any contraband in his anus. Nothing was discovered, either
in his clothing or on his body. The plaintiff obtained confirmation that the search was
in his clothing or on his body. The plaintiff obtained confirmation that the search was
concluded, took his clothing, put on his socks and underpants and asked to be
excused. He was upset and believed that his dignity had been infringed. He met Mr
Kafile outside the room, who pleaded with him to dress. He put on his vest at some
point in the passage. Near the veranda he met Mrs Loliwe, who was shocked to see
him in a state of undress, and saw Mr Minnaar, who enquired as to what had
transpired. He did not answer because of his mental state.
[7] The plaintiff expressed concern that he had been searched by two persons
who were not black African, and that other males had been permitted to observe his
build. He eventually put on his trousers and boots, without lacing them up, and his
shirt. He decided that he would resign from his employment and proceeded to the
area commissioner’s office. He was requested to go home, given that he was
emotional, and the area commissioner promised to talk to Mr Botes. He proceeded
to his doctor and obtained some medic ation before going home to sleep. Later he
was advised to draft a grievance pertaining to his dissatisfaction with the search. The
plaintiff explained that his experience had affected his home life, and that he was still
consulting a psychologist and was receiving treatment. Even though no unlawful
substances were discovered during the search, the plaintiff never received an
apology.
[8] During cross -examination, the plaintiff testified that he had very limited
knowledge or experience of tip -offs, as these were not given to employees at his
level. The plaintiff confirmed that Mr Mrhasi had informed him that he had received
some information that he was carrying drugs. He disputed that it was the practice, in
such situations, for the employee concerned to be taken aside. He maintained that a
search warrant was required and that he could have been searched at a different
part of the premises, in a private cubicle designed for that purpose, and which
contained a scanner, and which was used to search persons whenever they entered
the premises. He testified that had he been in possession of any contraband, he
would not have allowed anyone to search him.
[9] The plaintiff indicated that he had signed the piece of legislation that had been
shown to him under duress. Further to his suggestion that he could have been
searched in the cubicle, the plaintiff averred that there were dogs that were trained to
searched in the cubicle, the plaintiff averred that there were dogs that were trained to
sniff for drugs, given that the scanner would not have picked up non -metallic items in
his possession. Furthermore, the Emergency Supporting Team, who were available
at the centre, rather than the senior officials concerned, could have performed the
search.
[10] In essence, the plaintiff’s case was that he had been searched in the wrong
place, in an unlawful manner, without any written authorisation and without a witness
of his choice being present. He construed what had occurred as being inhumane and
a violation of his dignity. He denied that he had taken off his clothes himself, that his
underwear was not removed and that he had been requested to dress himself,
instead pushing past Mr Botes before exiting the room.
[11] Mr Kafile testified that he had been employed by the Department for more
than 20 years as a correctional official, responsible for rehabilitating offenders. He
was called by the plaintiff, who was his colleague, as he returned from lunch on the
day in question. He was requested by the plaintiff to witness his search, as he was
dissatisfied with the manner in which it was to proceed. He entered the office at the
same time as Mr Botes, the head of centre, who subsequently asked him to leave
the room, as he had no right to be present. He also observed the plaintiff, Mr Mrhasi
and Mr Van Eck in the office. He exited the office and waited outside for
approximately 20 minutes. He found it unusual that the plaintiff was not being
searched in the cubicle, which was a private space where a single person could
have conducted the search.
[12] Mr Kafile observed the plaintiff exit the room, wearing only his underpants and
holding his clothing in his hands. He was crying and informed Mr Kafile that he had
been strip-searched. Given his emotional state, Mr Kafile attempted to contact the
plaintiff’s wife and decided that he could not leave the plaintiff alone. He also
requested the plaintiff to dress, given that females would see him walking from the
office and did not know why the plaintiff did not do so. During this time, Mr Minnaar,
also a priso n warder, enquired about what had transpired, while the plaintiff was
dressing. A female social worker also observed the scene. Mr Kafile advised the
plaintiff to visit a doctor, social worker or psychologist and walked him to his car. The
plaintiff agreed to do so before Mr Kafile returned to work.
plaintiff agreed to do so before Mr Kafile returned to work.
[13] Mr Kafile explained that the EST, as well as sniffer dogs from the dog unit,
were called in cases of riot or whenever an official was suspected of smuggling. He
explained that the office window was adjacent to and overlooked an external
passage and that it was possible to see outside from within the office, which was not
a private space.
[14] During cross-examination, Mr Kafile confirmed that he was a co -plaintiff with
the plaintiff in other legal proceedings instituted against the defendant. He
maintained that he had accompanied the plaintiff from the time he exited the office to
his motor vehicle and denied that he visited the area commissioner during that time.
He was unable to comment when it was put to him that the centre’s sniffer dog had
died and conceded that the metal scanner used in the cubicle would be unable to
indicate when a person was in possession of drugs.
[15] The witness recalled that the plaintiff had phoned him, rather than using
WhatsApp. While walking to the office, Mr Botes had enquired as to where he was
going. He informed him that he had been called by the plaintiff and was permitted to
sit in the office for a few minutes, where the others (Mr Mrhasi, Mr Van Eck, the
plaintiff and Mr Botes) sat in silence, before being told by Mr Botes that he was not
supposed to be present. At that stage the plaintiff was still dressed. Mr Kafile
recalled that the blinds in the office were open but could not comment on their
condition. It was put to Mr Kafile that he had not been present, inside or outside the
office, during the material time.
[16] Dr Sokupa, an experienced medical practitioner, testified based on
contemporaneous notes she had made when the plaintiff consulted with her on the
day of the incident. The plaintiff had been registered with her practice since 2015. He
had narrated his experience to her on the day of the incident. This was, she had
noted, his second altercation at work and he was experiencing spasmodic
headaches, known as cluster headaches. Dr Sokupa had previously referred the
plaintiff to a psychiatrist and knew his medica l history. She observed that the
plaintiff’s blood pressure was high, his pulse was accelerated and he was tremulous
and sweating, all signifying emotional disturbance, either due to fear or anger, and
and sweating, all signifying emotional disturbance, either due to fear or anger, and
mental stress. She understood from the plaintiff that the officials of the department
had demanded that the plaintiff remove his clothes, based on a rule or policy, when
he initially refused to do so. He had then done so, although he had wanted a witness
to be present.
[17] Dr Sokupa diagnosed the plaintiff with post -traumatic stress disorder with
major depression and noted that he was experiencing a panic attack. She
subsequently addressed a report to the treating psychiatrist. Her evidence also
reflected that, prior to the incident, the plaintiff had already been referred to a
psychiatrist for serious workplace -related difficulties. Dr Sokupa clarified, during
cross-examination and in response to the court’s questions, that the incident had
triggered the plaintiff, in the sense that his previous medical history meant that his
situation had been aggravated by the events of the day, particularly by being
undressed.
The defendant’s case
[18] Mr Mrhasi, the unit manager, testified that he had worked at the Department
for 17 years. He also served as acting head of centre on occasion. The plaintiff had
worked under Mr Mrhasi for approximately 10 years as a security official. The plaintiff
worked directly with inmates and his duties included ensuring that inmates were not
in possession of contraband. In Mr Mrhasi’s view, employees of the Department who
had direct access to inmates were generally implicated when employees were found
to be in possession of unauthorised articles.
[19] Mr Mrhasi testified that he had received a telephonic tip -off, shortly before
noon on the day of the incident, implicating the plaintiff. The informant indicated that
the plaintiff, who was on lunchbreak at the time, would return carrying contraband.
Mr Mrhasi decided that he would summon the plaintiff to his office upon his return
and did so. Having observed Mr Van Eck, he decided to invite him to his office as
well. Once in the office, he informed the plaintiff about the information that had been
received. The plaintiff requested the presence of a witness, and Mr Mrhasi and Mr
Van Eck permitted him to use the office phone. When this proved to be
unsuccessful, Mr Van Eck offered the plaintiff his mobile phone. The plaintiff
contacted Mr Ndlovu but could not secure his attendance as he was offsite. The
plaintiff then enquired as to the source of the authority for his search. Mr Mrhasi left
plaintiff then enquired as to the source of the authority for his search. Mr Mrhasi left
the office in search of a computer to print out the applicable legislation and found Mr
Botes, who had not been present e arlier. Mr Botes agreed to assist Mr Mrhasi,
printed an extract from the Act and returned to the office with Mr Mrhasi. He
explained the contents of the relevant provision to the plaintiff, who appeared
satisfied with the explanation and signed the extract. The plaintiff then started
undressing of his own accord.
[20] Mr Kafile was not observed at all during this time. Mr Botes remained in the
office while the plaintiff undressed and, from time to time, looked into the passage.
Mr Mrhasi explained that while there was no provision mandating the presence of a
witness, he had decided to proceed with caution given that the search emanated
from a tip -off. Mr Mrhasi explained that each of the clothing items was checked for
contraband. The plaintiff was eventually dressed in only his underwear. Nothing
untoward was discovered during the search process.
[21] The plaintiff gathered his clothing, put it over his arm but, to the surprise of
those present, proceeded to the doorway and forced his way out of the room, despite
Mr Botes having instructed him to dress and despite attempts to prevent him from
leaving. While the plaintiff had been calm during the search and while removing his
own clothes, he became angry thereafter and overcame Mr Mrhasi, Mr Van Eck and
Mr Botes’ attempts to prevent him from leaving.
[22] Mr Mrhasi explained that, given the tip -off, it was inappropriate to allow the
plaintiff to be searched, in the ordinary manner, in the cubicle used to search anyone
entering the prison. He suggested that the cubicle was ‘not safe enough’ for the type
of search that had to be conducted and explained that there was no sniffer dog
available. It was inappropriate and unnecessary for the EST to have been called to
conduct the search, particularly because the plaintiff had shown no sign that he
refused to be sea rched. Mr Mrhasi denied that he, Mr Van Eck and Mr Botes had
played any part in undressing the plaintiff or that the plaintiff had been stripped
naked. He maintained that he had personally closed the door and windows in his
office once the plaintiff had entered, and that he had ensured that the plaintiff
understood why he had been summoned. Mr Mrhasi indicated that he wanted to
ensure that the search occurred in private and in a safe space, in a manner that
ensure that the search occurred in private and in a safe space, in a manner that
upheld the plaintiff’s dignity. In his recollectio n, the blinds in the office were secure.
He denied having seen Mr Mabaso at all on the day of the incident.
[23] Mr Mrhasi testified that managers were also correctional security officers who
were empowered to conduct searches. During cross-examination, he also suggested
that the search was covered by written authority emanating from the National
Commissioner.
[24] According to Mr Mrhasi, Mr Botes had read sections 101 and 32 to the
plaintiff, who appeared to accept the explanation for the search, signed the
document together with Mr Botes and proceeded to remove his clothing. He denied
that the plaintiff had wept after the search and could not understand why the plaintiff
had become so angry. He testified that, because the search was being conducted on
an official rather than a prisoner, those present were satisfied that the plaintiff was
not in possession of any contraband even though he had not been stripped naked. It
had therefore been considered unnecessary to cause the plaintiff to squat while
naked. Mr Mrhasi emphasised that the plaintiff was not a prisoner and that, if a
substance were hidden in the anus, it would in any event be for medical practitioners
to remove it if necessary.
[25] Mr Mrhasi was not prepared to disclose the name of the person from whom
he had received the tip -off. He testified that informants were not paid and that
verification of information received would be achieved through questioning, and that
information received should be treated with caution. He knew from a colleague that
the informant who had contacted him had previously furnished information that had
resulted in the discovery of contraband, although he had not participated in that
search, and therefore trust ed that source. He had previously conducted searches
following tip-offs and had done so in the same manner, without utilising the search
cubicle or resorting to the EST or medical facilities. Mr Mrhasi considered the cubicle
to be inappropriate for conducting the type of search that he contemplated. He had
informed Mr Botes of the tip -off at the time when the latter was requested to provide
the extract from the Act, which was the only reason that Mr Botes had been
summoned, and had conveyed the information to Mr Van Eck, who had been
summoned, and had conveyed the information to Mr Van Eck, who had been
summoned to witness the search. According to Mr Mrhasi, the entire process had not
lasted for more than an hour, and he had done everything in his power to satisfy the
plaintiff’s request for information, which he considered part of the plaintiff’s rights.
[26] Mr Mrhasi recalled that the plaintiff had expressed his anger by blowing air out
of his mouth but did not notice any weeping. He recalled that the plaintiff had been
admitted to hospital but could not recall precisely when that had occurred. He denied
that the plaintiff had been subjected to tremendous stress because of ill -treatment at
the hands of management. The plaintiff had been informed of the reason for the
search and Mr Mrhasi was satisfied that the job had been performed with due
respect for the plaintiff’s dignity. According to Mr Mrhasi, the plaintiff was satisfied
with the information he had received and had cooperated. As for the presence of
more than one i ndividual, Mr Mrhasi considered it prudent to have witnesses
present, to prevent false accusations.
[27] Mr Mrhasi was the acting head of the centre that afternoon and had been
fortunate to come across Mr Botes when he saw him. Mr Botes had been out of
office that morning. The plaintiff, according to Mr Mrhasi, knew about the Institutional
Order, which was reviewed each year. Such policies were made available by the
responsible authorities and communicated to managers for onward transmission to
their subordinates. Mr Mrhasi’s evidence was that he had sensitised the plaintiff to
the policy, as part of dissemina ting such information to all the employees who
worked under his leadership, whereby they were informed as to the standard of
conduct expected of them. Had the plaintiff refused to be searched, the EST would
have been called to assist.
[28] Mr JJ Botes, the head of the East London Correctional Centre, testified that
he had almost 40 years of service. His duties included overseeing staff. Promulgated
legislation was executed by persons in his position, while policy and procedure
drafting was the responsibility of the National Commissioner or Minister. The head of
a centre was, however, responsible for determining their own prevention strategy by
way of institutional order.
[29] Mr Botes explained the Institutional Order that was in operation at the time of
the incident, which was designed to provide details pertaining to daily activities,
the incident, which was designed to provide details pertaining to daily activities,
including search of officials, and which provided as follows:
‘Searching: Officials:
• A Correctional official required to act in order to control access to or maintain secure
custody within a correctional centre may, in terms of section 101(2)(a) of the Act
search any correctional official and his or her property.
• In terms of Regulation 70 correctional officials and their property may be searched.
• Officials can be tap down search, full body search, rub down search, removal of
clothing, x-ray scanning etc. Depending on each case.’
[30] According to Mr Botes, while officials entering the Centre were ordinarily
subjected only to a tap -down search, a fuller search, including removal of clothing,
could be undertaken in a case triggered by a tip -off that an official was bringing
unauthorised substances onto the premises.
[31] Mr Botes recalled the circumstances surrounding the incident. He had
returned from another meeting and Mr Mrhasi, who was the lock -up manager that
day and acting head of the centre, had visited him in his office, informed him that the
plaintiff was in Mr Mrhasi’s office and advised him that he had received information
that the plaintiff was intending to bring contraband or drugs into the facility. Mr Botes
accompanied Mr Mrhasi to his office and found the plaintiff in the company of Mr Van
Eck.
[32] The plaintiff requested information as to the basis for the authority for him to
be searched without a warrant. Mr Botes informed him that this was permitted by s
101(2) of the Act. The plaintiff requested a copy. He returned to his office, obtained a
copy of the section and brought it to the plaintiff, explained the meaning of the
subsection, ensured that he understood same before both signed in
acknowledgment. The plaintiff then consented, stood up and started removing all his
clothing, barring his underp ants. No contraband was found following a search of the
plaintiff’s clothing or discovered on his person. Thereafter he was requested to dress
so that the search could continue at the plaintiff’s locker, which was part of the usual
search process. This angered the plaintiff, who took his clothes and left despite
requests to dress himself.
[33] The blinds in Mr Mrhasi’s office were in good condition and closed so that
[33] The blinds in Mr Mrhasi’s office were in good condition and closed so that
nobody could see into the room. The plaintiff had been calm during the search, until
he was informed that Mr Botes intended to proceed to his locker. He then pushed
past those in attendance and left without dressing. The EST would have been
engaged had the plaintiff refused to be searched. Given that he had consented and
was willing to remove his own clothing, this was deemed unnecessary. According to
Mr Botes, the office where the search was conducted was a private space where
information pertaining to the tip -off could be discussed with the plaintiff without the
risk of passers-by becoming aware of the situation, as would likely be the case at the
main gate. Mr Botes testified further that, apart from observing Mr Kafile when he
returned to his office after his morning meeting, he did not see him again at any time
that day.
[34] Under cross -examination, Mr Botes testified that the plaintiff should have
been aware, from the institutional order and his training, that fuller searches,
including removal of clothing, could be conducted when there was suspicion that an
official possessed unauthorised substances. He conceded that there was no written
stipulation that such searches had to be conducted in the offices of senior personnel,
but explained that there was no danger in doing so in the present circumstances
because, on his version, the plaintiff had consented to the search.
[35] Mr Botes confirmed that no sniffer dog was available at the time. He also
testified that information of the kind received by Mr Mrhasi had to be handled with
care, which, according to him, was why the plaintiff was taken to a separate office
rather than searched at the ordinary entry point. Mr Botes denied that there was any
longstanding feud between himself and the plaintiff, although he accepted that there
had been an enquiry and pending litigation involving himself, the plaintiff and Mr
Kafile on an unrelated matter.
Analysis
Did the plaintiff consent to being searched?
[36] Section 101 of the Act provides as follows:
‘101. Entry, search and seizure. – (1) In addition to the powers of a correctional official to
search inmates, their cells and their property and to seize articles in terms of s 27, a
search inmates, their cells and their property and to seize articles in terms of s 27, a
correctional official also has the power to enter any premises, to search without warrant any
other person or place and seize any article when this is reasonably necessary for –
(a) maintaining the safe custody of an inmate, the security of a correctional centre
and controlling access of persons to and permissibility of goods in a correctional
centre;
(b) …
(c) preventing or gathering evidence of, the commission of any offence under this
Act; or
(d) investigating theft, fraud, corruption and maladministration by correctional
officials.
(2) Despite the provisions of subsection (1) –
(a) a correctional official may not search another correctional official or seize his or
her property without his or her consent or being authorised to do so by the
National Commissioner but a general authorisation to search other correctional
officials may be granted to a correctional official who is required to act in to
control access to or maintain secure custody within a correctional centre, or to
give effect to subsection (1) (d); …’
[37] On his own version, the plaintiff was informed by Mr Mrhasi that information
had been received suggesting that he was carrying drugs. He had already
accompanied Mr Mrhasi to the office without demur. His immediate response was
not to refuse to be searched. Instead, he asked that his shop steward be called.
When that individual proved to be unavailable, he requested the presence of another
witness. This is of some importance. It indicates that the plaintiff’s objection, at least
initially, was directed not a t the fact or the place of the search itself, but rather at the
absence of what he regarded as the appropriate procedural safeguards.
[38] The plaintiff’s own evidence further establishes that, when Mr Botes arrived,
the issue he raised was whether he could be searched without a witness and
whether there was any written authority entitling the supervisors to search him. Mr
Botes then left and returned with an extract from the Act. On the plaintiff’s version,
he was shown the relevant provision, was required to sign it, did so, and was given a
copy. He accepted that he signed the extract and that the search then proceeded.
copy. He accepted that he signed the extract and that the search then proceeded.
That contemporaneous conduct is not easily reconcilable with a continued refusal to
be searched. On the probabilities, it is more consistent with acquiescence once the
statutory basis for the search had been explained.
[39] The plaintiff sought to characterise his signature as having been given under
duress. That description, however, finds little objective support in the evidence. He
did not suggest that any threat was made to him, that force would be used if he
refused, or that he was told that he had no choice but to sign on pain of some
immediate adverse consequence. His evidence, rather, was that he signed because
the document was presented by his superiors, because he was dissatisfied with the
refusal to await his chosen representative, and because he believed that the proper
course was to comply and complain later. That falls short of establishing duress, or
any comparable form of coercion, sufficient to vitiate consent.
[40] Significantly, even on the plaintiff’s own version, he did not, after the statutory
basis for the search had been explained and the extract signed, verbalise any
continuing refusal to be searched. This is important because it demonstrates that,
while the plaintiff may have been unhappy with what was occurring, his evidence
does not establish that he maintained an express objection after the legal basis for
the search had been furnished. Read together with his signature on the extract and
the fact that the s earch then proceeded without further objection, this is more
consistent with the conclusion that the plaintiff consented to the search. The
plaintiff’s initial insistence on being shown the authority for the search did not amount
to a maintained refusal once that authority had been furnished and explained.
[41] The plaintiff’s own explanation for why he regarded the search as ‘forceful’ is
also revealing. It was not rooted primarily in any specific coercive conduct on the part
of the supervisors at the point when the decision to search him was made. Instead, it
was based on his perception that he had not truly agreed to the search, that he had
not been afforded the presence of a witness of his choice, and that he considered a
not been afforded the presence of a witness of his choice, and that he considered a
warrant bearing his name to be necessary before he could lawfully be searched. The
latter belief was mistaken. His dissatisfaction with the legal position, and with the
supervisors’ refusal to await his preferred representative, does not itself establish an
absence of consent once the position was explained and he signed the statutory
extract.
[42] The plaintiff also explained that he did not resist because resistance would
have made him appear guilty and would have suggested that he was indeed in
possession of drugs. That explanation is difficult to reconcile with a case of
continuing refusal. It points rather to a conscious decision on his part to submit to the
search in the circumstances then confronting him.
[43] I accept that the plaintiff did not welcome the search, that he would have
preferred the presence of his shop steward or another witness, and that he remained
dissatisfied with what was occurring. But those considerations do not negate consent
for purposes of s 101(2)( a). The question is not whether the plaintiff was content to
be searched, but whether, having been informed of the reason for the search and
shown the statutory provision relied upon, he freely agreed to it, or at least voluntarily
acquiesced in it. For the reasons already given, the probabilities show that he did.
[44] This conclusion is in any event consistent with the evidence of Mr Mrhasi and
Mr Botes, both of whom testified that, once the statutory basis for the search had
been explained and the extract signed, the plaintiff voluntarily consented to the
search. Their evidence on that issue is, for the reasons that follow, to be preferred. I
accordingly find that the plaintiff consented to the search within the meaning of s
101(2)(a) of the Act.1
Was the search conducted in the manner alleged by the plaintiff?
[45] It remains necessary to determine whether the search was conducted in the
manner alleged by the plaintiff and, if so, whether it exceeded what was permissible.
In that regard, the parties presented materially different versions on the remaining
issues. These include whether the plaintiff removed his own clothing or whether the
supervisors did so, whether all his clothing, including his underwear, was removed,
whether he was required to turn to the wall and squat, whether the blinds in the office
whether he was required to turn to the wall and squat, whether the blinds in the office
were in such a condition that passers -by could observe him in a state of undress,
and whether Mr Kafile was present in the manner alleged.
1 Cf Ziboti and Another v Minister of Police and Others 2025 (2) SACR 396 (ECGq) para 24.
[46] Those disputes must be resolved in accordance with the ordinary approach to
mutually destructive versions, as articulated in SFW Group Ltd & Another v Martell et
Cie & Others2 (SFW):
‘On the central issue, as to what the parties actually decided, there are two irreconcilable
versions. So, too, on a number of peripheral areas of dispute which may have a bearing on
the probabilities. The technique generally employed by courts in resolving factual disputes of
this nature may conveniently be summarised as follows. To come to a conclusion on the
disputed issues a court must make findings on (a) the credibility of the various factual
witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the
credibility of a particular witness will depend on its impression about the veracity of the
witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of
importance, such as (i) the witness’ candour and demeanour in the witness -box, (ii) his bias,
latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with established facts or with his own extra -curial
statements or actions, (v) the probability or improbability of particular aspects of his version,
(vi) the calibre and cogency of his performance compared to that of other witnesses
testifying about the same incident or events. As to (b), a witness’ reliability will depend, apart
from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to
experience or observe the event in question and (ii) the quality, integrity and independence
of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability
or improbability of each party’s version on each of the disputed issues. In the light of its
assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party
burdened with the onus of proof has succeeded in discharging it.’
[47] Turning first to credibility, I was not persuaded that the plaintiff’s evidence on
the disputed features of the search could be accepted without reservation. He was
plainly dissatisfied with the fact that he was searched, and I accept that the incident
upset him. But his dissatisfaction with what occurred appears, at least in part, to
have coloured his account of what exactly transpired. That is evident from his
repeated insistence that a warrant bearing his name was required, from the
emphasis he placed on the absence of a witness or representative of his own
choosing, and from his evidence that the search affronted his sense of dignity and
cultural propriety, particularly because he did not wish other men to see him in a
2 SFW Group Ltd & Another v Martell et Cie & Others 2003 (1) SA 11 (SCA) para 5.
state of undress. Such matters, while explaining the intensity of the plaintiff’s
grievances, do not enhance the reliability of his account of events.
[48] The plaintiff’s description of the search as ‘forceful’ was also not entirely
satisfactory. On closer examination of the evidence, that description seemed to
derive less from any clear evidence of physical coercion at the outset than from his
own perception that he had not truly agreed to be searched and that the process was
unfair absent a warrant and because his preferred witness was absent. Importantly,
his evidence as to how Mr Mrhasi allegedly ‘forcefully’ removed his clothing lacked
the kind of detail one would have expected had events unfolded in the dramatic
manner alleged. This is particularly so given the importance attached by the plaintiff
to the allegation that he was stripped naked, including the removal of his underwear,
and thereafter made to squat.
[49] The plaintiff was not materially assisted by the evidence of Mr Kafile. While he
was called as a witness to bolster the plaintiff’s version of events, he was plainly not
an independent witness, having conceded that he and the plaintiff were co -plaintiffs
in other litigation against the defendant. More importantly, aspects of his evidence
were inherently improbable. His account that Mr Botes encountered him on the way
to the office, understood that he was going there at the plaintiff’s request, allowed
him to enter and sit there in silence for a few minutes, and only thereafter instructed
him to leave, cannot be accepted. On the probabilities, had management intended to
exclude him from the process, it makes little sense that he would first have been
permitted to enter and remain present without objection.
[50] Mr Kafile’s evidence was also unsatisfactory in other material respects. There
was, in addition, an unexplained tension between his version and that of the plaintiff
concerning what occurred after the plaintiff exited the office. Mr Kafile was adamant
concerning what occurred after the plaintiff exited the office. Mr Kafile was adamant
that he accompanied the plaintiff from the office to his motor vehicle and denied that
the plaintiff visited the area commissioner during that time. The plaintiff’s own
account of the sequence of events thereafter differed from that version. Mr Kafile’s
evidence concerning the condition of the blinds and the possibility of observation
from outside was similarly weak. Although he suggested that the office was not
private, he was unable to provide satisfactory detail about the condition of the blinds,
and his account of what could in fact be seen from outside was unconvincing. In
these circumstances, I am unable to place reliance on Mr Kafile’s evidence insofar
as it purported to corroborate the plaintiff on the disputed events in the office.
[51] By contrast, both Mr Mrhasi and Mr Botes impressed me favourably as
witnesses. Each gave evidence in a straightforward and satisfactory manner. Mr
Botes, in particular, came across as measured and experienced. In that regard, it is
significant that the plaintiff’s allegation that Mr Botes spoke to him in a rough tone
when enquiring whether he was refusing to be searched was not put to Mr Botes in
cross-examination. Their evidence was broadly consistent on the central features of
what occurred in the office. Both gave a plausible account of why the plaintiff was
taken to Mr Mrhasi’s office, why the statutory basis of the search was explained to
him, and why the search was conducted there rather than at the ordinary search
point. Their evidence provides a more satisfactory basis for the evaluation of the
remaining disputed issues.
[52] Mr Botes also materially corroborated Mr Mrhasi on the plaintiff’s allegation
that he had been required to squat. He denied that any such instruction was given
and regarded such treatment as inhumane. That evidence strengthens the
conclusion that the search was not conducted in the degrading manner alleged by
the plaintiff. It is also significant that, on the accepted evidence, Mr Botes would not
have been present had the plaintiff not requested information about the authority for
the search. His evidence t hat the office door was closed but not locked, and that
aggrieved officials could utilise the grievance process, is likewise inconsistent with
the suggestion that he was brought in to intimidate the plaintiff or that the search
occurred in a threatening atmosphere. That Mr Botes alone identified the proposed
continuation of the search to the plaintiff’s locker as the trigger for the plaintiff’s anger
continuation of the search to the plaintiff’s locker as the trigger for the plaintiff’s anger
does not, in my view, amount to any contradiction of consequence. At most, it
reflects a difference in perce ption as to why the plaintiff became angry, and it does
not detract from the substantial consistency of the defence version on the central
events.
[53] As to reliability, the plaintiff’s account of the disputed features of the search
must be approached with caution. His own evidence demonstrates that, at the time,
he was preoccupied with what he regarded as the unfairness and indignity of the
process, particularly the absence of a warrant, the absence of a witness or
representative of his choosing, and the affront to his dignity and cultural propriety.
Those considerations appear to have shaped not only his grievance, but also his
reconstruction of what occurred thereafter. That is particularly so given the sparse
detail he provided on some of the most serious aspects of the version he advanced.
[54] Mr Kafile’s reliability is materially undermined by the rejection of his evidence
that he entered the office and remained there briefly, so that his opportunity to
observe the disputed events in the office falls away. His account of what could
allegedly be seen from outside, and of the condition of the blinds, was in any event
poor.
[55] Dr Sokupa was a reliable witness within the limited compass of her evidence.
She could speak to the plaintiff’s presentation later that day and to the fact that the
incident may have triggered or aggravated pre -existing psychological difficulties.
Naturally she could not assist the court with the detail of what occurred in the office.
[56] By contrast, both Mr Mrhasi and Mr Botes were direct participants in the
events in the office and had full opportunity to observe what occurred. Their
recollection of the sequence was coherent and mutually supportive on the central
issues.
[57] Turning to the probabilities, and bearing in mind the considerations already
discussed in relation to consent, the first is that the search did not occur in the
coercive and disorderly manner suggested by the plaintiff. The plaintiff accompanied
Mr Mrhasi to the office without any suggestion of immediate resistance. By the time
the search commenced, he had been informed of the reason for it, shown the
statutory extract relied upon, signed it and received a copy. The evidence of Mr
Mrhasi and Mr Botes that t he plaintiff then undressed himself is inherently more
Mrhasi and Mr Botes that t he plaintiff then undressed himself is inherently more
probable than the plaintiff’s version that the supervisors proceeded physically to strip
him. That conclusion is strengthened by the absence of any convincing detail on the
part of the plaintiff as to how the supervisors allegedly proceeded physically to strip
him.
[58] The plaintiff’s version that Mr Mrhasi forcefully removed all his clothing,
including his underwear, is improbable. Given the intensity of the indignity which the
plaintiff said he experienced, and given the emphasis he placed on not wishing other
men to see him in a state of undress because of his sense of dignity and cultural
propriety, one would have expected a clear and detailed account not only of how the
final items of clothing were allegedly removed, but also of some more immediate
protest at that cr itical moment. That detail was lacking. The probabilities favour the
version that the plaintiff removed his own clothing and was left in his underwear.
[59] Similar considerations apply to the plaintiff’s evidence that he was required to
turn to the wall and squat. That allegation was central to his case on humiliation and
excess, yet it was not supported by any reliable corroboration. It was denied by both
Mr Mrhasi and Mr Botes, whose evidence I accept in preference to that of the plaintiff
on the issue. Here, too, the plaintiff’s account lacked the kind of detail one would
have expected had events occurred in that manner.
[60] The probabilities also do not favour the plaintiff’s version concerning the
blinds. I accept the evidence of Mr Mrhasi and Mr Botes that the blinds were closed
and in good or secure working condition, and that the office was used as a private
space in which to discuss and conduct the search away from the ordinary movement
of persons in the vicinity. The contrary version depended materially on the evidence
of the plaintiff and Mr Kafile. For the reasons already given, I do not regard Mr Kafile
as a reliable witness on the issue. The plaintiff’s reliance on the alleged sighting of
Mr Mabaso through the window appeared contrived and is rejected. On the
probabilities, the search was not visible to passers-by from outside the office.
[61] In the light of the credibility and reliability findings already made, the plaintiff
[61] In the light of the credibility and reliability findings already made, the plaintiff
was left without reliable corroboration for his account of what allegedly occurred
inside the office. Considering the evidence holistically, and applying the approach in
SFW, the probabilities favour the version of Mr Mrhasi and Mr Botes on the disputed
issues. I therefore accept that the plaintiff removed his own clothing and remained in
his underwear, that he was not required to turn to the wall and squat, and that the
blinds were closed and in sufficient working order to prevent passers -by from
observing the search from outside the office. I further reject Mr Kafile’s claim to have
been present in the office in the manner alleged.
[62] It may be noted that there was no explanation for why Mr Van Eck was not
called, notwithstanding that he was present in the office and could have spoken
directly to the events in issue. While that omission is unsatisfactory and warrants
caution, it is not decisive. As indicated above, the evidence of Mr Mrhasi and Mr
Botes was acceptable on the material issues, and the probabilities independently
favour their version. The adverse inference to be drawn from Mr Van Eck’s absence
is insufficient to disturb the conclusion reached on the facts.
[63] I assume in the plaintiff’s favour that an admitted bodily search of this kind
constituted a prima facie wrongful invasion of privacy and dignity, requiring
justification by the defendant. It remains necessary to consider whether, on the facts
as found, that justification was established and whether the search was otherwise
conducted in a manner that exceeded what was permissible.
Was the search nevertheless unlawful?
[64] The plaintiff repeatedly suggested that a search warrant bearing his name
was required before he could lawfully be searched. That contention cannot be
sustained, given that s 101 of the Act expressly contemplates warrantless searches
within a correctional centre in defined circumstances. In the present matter, the
plaintiff was searched inside the correctional centre by correctional officials who
were acting on information that he was bringing contraband into the facility. On the
facts as found, and given t he plaintiff’s consent to the search, the absence of a
warrant did not render the search unlawful.
[65] Nor does the fact that the search was conducted in Mr Mrhasi’s office, rather
than at the ordinary search cubicle, avail the plaintiff. On the accepted evidence, the
search was triggered by a tip -off and was conducted in the office because it was
search was triggered by a tip -off and was conducted in the office because it was
regarded as a more private and controlled setting than the ordinary search area. The
plaintiff’s preference for the usual search point does not, without more, establish
unlawfulness. Nor was there any evidence of any rule or policy requiring that a
search of this k ind, once triggered by a tip -off, could only lawfully be conducted at
the ordinary search cubicle. The cubicle was, on the evidence, the designated point
for routine entry searches and it does not follow that a targeted search arising from a
tip-off also had to be conducted there. The use of the office as a private and
controlled setting, with the door and blinds closed, served to protect the plaintiff’s
privacy and dignity during the search.
[66] The plaintiff’s further complaint that he was not afforded the presence of a
shop steward or witness of his own choosing also does not establish unlawfulness.
The evidence established no rule, policy or statutory requirement entitling the plaintiff
to insist upon the presence of such a person before the search could proceed. On
the contrary, the plaintiff was afforded an opportunity to attempt to secure the
attendance of his preferred shop steward, and when that proved unsuccessful the
search proceeded afte r the statutory basis for it had been explained. In those
circumstances, the absence of a witness or representative of the plaintiff’s choosing
did not render the search unlawful.
[67] The plaintiff also relied on the existence of other possible means of search,
including the search cubicle, scanner, sniffer dogs and the EST. That evidence does
not advance his case sufficiently. At best for the plaintiff, it shows that there may
have been other methods by which the search could have been undertaken. It does
not follow that the failure to employ one or more of those alternatives rendered the
search unlawful. On the accepted evidence, the scanner was not designed to detect
drugs, no sniffer dog was available at the time, and the EST was not regarded as
necessary because the plaintiff had not refused to be searched. That, too, is
consistent with the defendant’s version of the incident. In those circumstances, the
decision to proceed with the search in the manner adopted did not amount to
unlawful conduct.
[68] Viewed cumulatively, none of the plaintiff’s remaining complaints establishes
[68] Viewed cumulatively, none of the plaintiff’s remaining complaints establishes
unlawfulness on the facts as found. The defendant discharged the burden of
justifying the admitted search. The search fell within what was permissible under s
101 of the Act and was not conducted in a manner that rendered it unlawful. The
plaintiff’s evidence that he was thereafter seen by colleagues outside the office in a
state of partial undress also does not advance his case. It is common cause that he
emerged from the office before he had fully dressed. On the accepted facts,
however, that was not because the supervisors forced him from the office in that
condition or denied him the opportunity to dress. The more probable inference is that
the plaintiff, being upset and angry, chose to leave before fully dressing, despite
being urged to do so. To the extent that this added to his sense of humiliation, it
does not alter the findings already made concerning the lawfulness and manner of
the search itself.
[69] The defendant has accordingly discharged the burden of justifying the
admitted search on a balance of probabilities. The search was not conducted in the
manner alleged in the plaintiff’s evidence, and there is no evidential basis for the
allegation of malice. It follows that the action falls to be dismissed.
[70] Although the matter implicated dignity and privacy, it was in substance a
delictual damages claim turning primarily on factual disputes, and there is
accordingly no basis to depart from the ordinary position as to costs. Having
considered the relevant factors contemplated in the Uniform Rules, including the
nature and complexity of the matter and the relief sought, I am not persuaded that
any scale other than the ordinary default position should apply.
Order
[71] The following order is issued:
1. The plaintiff’s claim is dismissed with costs.
_________________________
A GOVINDJEE
JUDGE OF THE HIGH COURT
Heard: 21–23 April, 27 May 2026
Delivered: 17 June 2026
Appearances:
For the Plaintiff: Adv Kalimashe
Instructed by: Sipunzi Attorneys
East London
For the Defendant: Adv Mbenyane
Instructed by: State Attorney
East London