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(2)
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REPUBLIC OF SOUTH A FRTCA
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IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
MAGISTRATE COURT CASE NO: 211/2019
CIVIL APPEAL CASE NO: HCA 27/2025
REPORTABLE: YES/NO
OF INTEREST TO THE JUDGES: YES/NO
REVISED.
In the matter between:
PATRICK PHADISHI MASHILA
and
MINISTER OF POLICE
Appellant
First Respondent
MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT Second Responden t
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NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT
LB MAPH ELELA AJ
Introduction
Third Respondent
1] This is an appeal against the whole judgment and order of the Magistrates' Court,
Mankweng, delivered on 12 June 2024, in terms of which the appellant's action for
damages arising from alleged unlawful arrest and unlawful detention was dismissed .
[2] The respondents initially defended the action in the court a quo. The appeal,
however, proceeded without opposing heads of argument having been filed on
behalf of the respondents. This Court is nevertheless obliged to determine the
appeal on its merits and on the basis of the record before it.
[3] The appeal concerns the correctness of the magistrate's findings that:
(a) the arrest of the appellant was lawful in terms of section 40(1 )(b) of the Criminal
Procedure Act 51 of 1977 ("the CPA"); and
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(b) the appellant's continued detention following his first court appearance was
lawful.
Factual Background
[4] The appellant instituted action against the respondents claiming damages arising
from his arrest and subsequent detention relating to allegations of robbery with
aggravating circumstances and assault with intent to do grievous bodily harm.
[5] At the pre-trial conference the parties agreed that:
(a) the defendants bore the duty to begin and the onus of proof;
(b) the plaintiff had complied with the Institution of Legal Proceedings Against
Certain Organs of State Act 40 of 2002;
(c) the plaintiff had been arrested and detained; and
(d) the only dispute concerned the lawfulness of the arrest and detention.
[6] It is accordingly common cause that the appellant was arrested , detained, appeared
in court on 26 September 2017, remained in custody following a postponement , and
was later admitted to bail.
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Evidence Before the Trial Court
The Appellant
[7] The appellant testified that on 22 September 2017 he was approached by police
officers who enquired about a person named Patrick Phadishi Mashila. He informed
them that he was the person they sought. He was informed that he was being
arrested in connection with allegations of assault and robbery.
[8] According to the appellant, he denied involvement in the offences and informed the
police that he had already left the tavern when the incident occurred . He further
directed the police to a bar attendant who was able to confirm his version.
[9] The appellant testified that he was taken to Mankweng Police Station, charged and
thereafter released on warning because of the long weekend . He was instructed to
return on 26 September 2017.
[1 O] He complied with that instruction and voluntarily presented himself at the police
station on 26 September 2017. On that occasion he was processed , brought before
court and detained for a further seven days following a postponement for profiling
purposes .
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Constable Manamela
[11] Constable Kgabo Simon Manamela was the investigating officer. He testified that he
received the docket on 22 September 2017, interviewed witnesses and investigated
the complaint.
[12] According to his evidence , the complainant and witnesses implicated the appellant
as one of the perpetrators . The complainant identified the appellant by name.
[13] During examination-in-chief he testified that he found the appellant at his
homestead , arrested him, brought him to the police station, charged him and brought
him to court.
[14] During cross-examination , however, significant concessions were made.
[15] He accepted that the charge sheet reflected: (a) the date of arrest as 22 September
2017; and (b) the date of first appearance as 26 September 2017.
[16] He further accepted that the information reflected on the charge sheet originated
from the docket.
[17] Most importantly, he conceded that the appellant presented himself at the police
station on the morning of 26 September 2017 .
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[18] When it was put to him that the chronology reflected in the charge sheet was
explained by the appellant's version that he had been arrested on 22 September
2017 and instructed to return on 26 September 2017, he answered : "That is correct."
[19] Constable Manamela also conceded that he failed to inform the prosecutor: (a) that
the appellant voluntarily presented himself at the police station; (b) that the appellant
was not a flight risk; and (c) that bail could appropriately be considered .
Warrant Officer Mokgolo
[20] Warrant Officer Letiah Mokgolo testified that she assisted in the investigation and in
obtaining witness statements.
[21] Under cross-examination she conceded that: (a) she was not present when the
appellant was arrested ; (b) she did not know where he was arrested ; (c) she had no
personal knowledge of the circumstances surrounding the arrest; and (d) she was
not present when the appellant was detained.
[22] Her evidence therefore contributed little towards establishing the lawfulness of either
the arrest or the detention.
Applicable Legal Principles
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Arrest
[23] Section 40(1 )(b) of the CPA empowers a peace officer to arrest without a warrant
any person whom he reasonably suspects of having committed a Schedule 1
offence.
[24] The jurisdictional facts were authoritatively stated in Duncan v Minister of Law and
Order 1986 (2) SA 805 (A) as: (a) the arrestor must be a peace officer; (b) the
arrestor must entertain a suspicion; (c) the suspicion must relate to a Schedule 1
offence; and (d) the suspicion must rest on reasonable grounds.
[25] However, the existence of those jurisdictional facts does not oblige an officer to
arrest.
[26] In Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA),
the Supreme Court of Appeal made it clear that the power to arrest remains
discretionary and that the discretion must be exercised lawfully, rationally and for the
purpose contemplated by the statute.
[27] In Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654
(SE), it was held that a reasonable police officer should critically analyse information
before depriving a citizen of liberty.
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[28] More recently, the Constitutional Court in Groves NO v Minister of Police and
Another 2024 (1) SACR 286 (CC) reiterated that police officers must properly
evaluate available information and justify the exercise of the discretion to arrest.
Detention
[29] It is trite that arrest and detention constitute an infringement of the constitutional right
to freedom and security of the person.
[30] In Minister of Law and Order v Hurley and Another 1986 (3) SA 568 (A), the
Appellate Division held that once an arrest and detention are proved, the burden
shifts to the defendant to justify them.
[31] The Constitutional Court reaffirmed this principle in Zealand v Minister for Justice
and Constitutional Development 2008 (4) SA 458 (CC).
[32] In Mvu v Minister of Safety and Security and Another 2009 (6) SA 82 (GSJ), the
Court emphasised that arrest and detention are separate juristic acts requiring
separate justification .
[33] In Woji v Minister of Police 2015 (1) SACR 409 (SCA), the Supreme Court of Appeal
held that police officers have a constitutional duty to place all relevant and available
information before prosecutors and judicial offi cers w h e n libe rty is at stake.
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Evaluation
The Arrest
[34] The magistrate correctly accepted that the complainant and witnesses implicated the
appellant in a Schedule 1 offence. The existence of a reasonable suspicion was
therefore not the end of the enquiry.
[35] The court a quo, however, failed to undertake the further enquiry required by
Sekhoto, namely whether the discretion to arrest was properly exercised.
[36] The appellant presented an exculpatory version from the outset and directed the
police to a person capable of verifying that version. There is no evidence that this
information was meaningfully investigated or evaluated.
[37] No evidence was presented explaining why arrest was necessary rather than less
invasive measures contemplated by the CPA.
[38] The appellant subsequently demonstrated his willingness to cooperate by voluntarily
presenting himself at the police station on 26 September 2017.
[39] In my view, the respondents failed to discharge the onus of establishing that the
discretion to arrest was lawfully exercised.
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The Date of Arrest
[40] I am further satisfied that the magistrate materially misdirected herself in finding that
the appellant was arrested and appeared in court on the same day.
[41] The charge sheet reflected arrest on 22 September 2017 and first appearance on 26
September 2017.
[42] Constable Manamela accepted that those dates appeared on the charge sheet and
that the information originated from the docket.
[43] He further conceded that the appellant presented himself to the police station on 26
September 2017 and agreed that this chronology supported the appellant's version.
[44] The documentary evidence and concessions made under cross-examination
overwhelmingly support the appellant's version that he was arrested on 22
September 2017 and instructed to return on 26 September 2017.
The Detention
[45] The magistrate concluded that there was no evidence suggesting that South African
Police Services (SAPS) contributed to the appellant's continued detention .
[46] Respectfully, that conclusion cannot be sustained on the evidence.
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47] Constable Manamela admitted that he failed to inform the prosecutor that: (a) the
appellant voluntarily presented himself at the police station; (b) the appellant was not
a flight risk; and (c) he should be considered for release on bail.
[48] Those facts were plainly relevant to the question whether detention was necessary.
[49) No prosecutor was called by the respondents to explain the decision to seek a
seven-day postponement or to justify the continued detention of the appellant.
[50] In circumstances where the respondents bore the onus, the absence of evidence
justifying the detention is fatal.
[51] The facts of this matter closely resemble those considered by the Supreme Court of
Appeal in Minister of Safety and Security v Ndlovu 2013 (1) SACR 339 (SCA), where
the failure to properly evaluate available information concerning an accused person's
liberty proved decisive.
Conclusion
[52] Applying the principles in Hurley, Zealand, Mvu and Woji, I am satisfied that the
respondents failed to justify the continued detention of the appellant from 26
September 2017 until 3 October 2017. The investigating officer conceded that he
failed to place material information before the prosecutor, namely that the appellant
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had voluntarily presented himself at the police station, was not a flight risk and was a
suitable candidate for release on bail. Those omissions directly affected the
consideration of the appellant's liberty and cannot be disregarded.
[53] In De Klerk v Minister of Police 2020 (1) SACR 1 (CC), the Constitutional Court
confirmed that liability for unlawful deprivation of liberty does not necessarily end
upon a detainee's first court appearance . Where the conduct of police officials is
sufficiently closely linked to the subsequent detention , and where such detention is
reasonably foreseeable, the Minister of Police may be held liable for damages
flowing from that continued detention . The enquiry is one of legal causation and
constitutional accountability .
[54] In the present matter, the investigating officer's failure to disclose material
information relevant to bail and continued detention created a sufficiently close
causal connection between the conduct of the police and the appellant's continued
incarceration after his first appearance . The ensuing detention was a foreseeable
consequence of those omissions . The respondents have therefore failed to establish
a lawful basis for the appellant's continued detention.
[55] The court a quo accordingly materially misdirected itself in its assessment of both
the facts and the applicable legal principles . The respondents failed to discharge the
onus resting upon them to justify either the arrest of the appellant or his continued
detention . The appeal must therefore succeed .
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Order
[56] The following order is made:
1. The appeal is upheld.
2. The First Respondent is ordered to pay costs on party and party scale B.
3. The matter is remitted back to the Mankweng Magistrates Court for determination of
quantum.
ACTING JUDGE OF THE HIGH COURT
I AGREE J.T. NGOBENI
JUDGE OF THE HIGH COURT
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APPEARANCES:
For the appellant: Adv. Rakgogo with Adv . Nkoana
Instructed by: Phuti Lefoka Attorneys Inc
For the respondent: Office of the State Attorney, Polokwane
Date heard: 06 February 2026
Date of delivery : 11 August 2026