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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 2746/2024
In the matter between:
TSHOANELO MOKAE MOLAHLOE PLAINTIFF
(Identity number: 8[…])
and
THE MINISTER OF POLICE DEFENDANT
Neutral citation: Molahloe v Minister of Police (2746/2024) [2026] ZAFSHC 420 (3
September 2026)
Coram: ELS AJ
Heard: 2, 3 and 5 June 2026
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email and released to SAFLII. The date and time for hand-
down is deemed to be 09h30 on 3 September 2026.
Summary: Unlawful arrest and detention – s ection 40(1) (a) and (b) of the
Criminal Procedure Act 51 of 1977 – a ssault by police officers – claim dismissed
with costs.
ORDER
__________________________________________________________________________________
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The plaintiff’s claim is dismissed with costs.
JUDGMENT
__________________________________________________________________________________
Els AJ
Introduction
[1] The plaintiff instituted action against the defendant for payment of the amount
of R2 450 000.00. The plaintiff’s claim arises from the alleged unlawful assault and
unlawful arrest and detention for which the plaintiff claims the amounts of
R950 000.00 and R1 500 000.00 respectively. The action is being defended by the
defendant on the grounds as set out in the plea. Furthermore, in the pre-trial minutes it
was recorded that the plaintiff accepts the duty to begin.
[2] It is trite that the onus rests on the defendant to justify an arrest. It is equally
trite that the onus rests on the plaintiff to prove assault. The issues which need to be
considered are therefore whether the plaintiff was assaulted by members of the South
African Police Service and whether the arrest of the plaintiff and his subsequent
detention were lawful. The matter proceeded on both the merits and quantum.
The plaintiff’s pleaded case
[3] The following allegations are contained in the plaintiff’s particulars of claim:
i) On or about 5 December 2021 the plaintiff was wrongfully and unlawfully
assaulted by members of the South African Police Service.
ii) The plaintiff sustained an abrasion on the head and bruises on the right side
of his face.
iii) The plaintiff was unable to work for three weeks and suffered contumelia.
iv) The plaintiff suffered damages in the amount of R950 000.00.
v) On or about 5 December 2021 the plaintiff was without a warrant of arrest,
unlawfully arrested by a member or members of the South African Police Service for
drunken driving.
vi) The plaintiff was thereafter detained after being charged at the instance of the
arresting officer without a warrant of detention.
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vii) On 6 December 2021 the plaintiff was transported to the Bloemfontein Traffic
Court where the public prosecutor ordered the plaintiff to go home without formally
appearing before a Magistrate in a Court of Law.
viii) The arrest and detention of the plaintiff was unlawful.
ix) As a result of the unlawful arrest and detention the plaintiff suffered damages
in the amount of R1 500 000.00.
The defendant’s pleaded case
[4] The following is pleaded in the defendant’s special plea and plea:
i) The assault is denied.
ii) The plaintiff drove a motor vehicle whilst he was reasonably suspected to be
under the influence of alcohol.
iii) The plaintiff insulted the members of the South African Police Service and
refused and/or resisted to be arrested by the police for charges of drunken driving.
iv) The plaintiff armed himself with an axe and attacked the police.
v) The police overcame the plaintiff’s resistance through the use of reasonable
minimum force and lawfully arrested the plaintiff for three charges namely drunk en
driving, resisting arrest and crimen injuria.
vi) It is denied that the plaintiff was unlawfully arrested.
vii) The plaintiff was lawfully arrested without a warrant of arrest by the police for
charges of drunken driving, resisting arrest and crimen injuria.
viii) The defendant denies being liable to pay the plaintiff in the amount claimed or
any part thereof.
The evidence of the plaintiff
[5] The plaintiff, who was the only witness called in support of his case, testified
as follows:
i) On 5 December 2021 at approximately 5 h00 he was driving with his girlfriend on
Hamilton Road in Bloemfontein.
ii) He noticed a vehicle behind him flashing its lights.
iii) He realised that the vehicle was a police vehicle and subsequently stopped the
vehicle he was driving.
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iv) The police vehicle, being a Toyota Quantum, parked next to his vehicle and the
driver of the police vehicle approached his window.
v) The plaintiff greeted the driver of the police vehicle who thereafter grabbed the
key of the plaintiff’s vehicle.
vi) The plaintiff opened his door and approached the driver of the police vehicle.
vii) The door of the Toyota Quan tum police vehicle opened and seven officers
came out of the vehicle.
viii) The officers started beating the plaintiff with fists and boots. One officer
pressed his boot on the plaintiff’s face, one kicked the plaintiff in the stomach and his
arm was twisted.
ix) The police handcuffed the plaintiff and he was put in the back of the police
vehicle.
x) He was taken to Pelonomi Hospital for his injuries.
xi) He was thereafter taken to Mangaung Police Station to be detained.
xii) The plaintiff was not under the influence of alcohol.
xiii) He consumed a tot of Henne ssey at 19h00 on the previous night and a dumpy
of Corona beer at 4 am on the morning in question.
xiv) The plaintiff sustained the injuries as depicted in photographs 2, 3, 4 and 5.
xv) The plaintiff suffered psychological, emotional, physical, financial and mental
damages.
The evidence of the defendant
[6] The defendant called one witness on his behalf, being Sergeant Maliehe who
testified as follows:
i) On 5 December 2021 he was a constable in the Crime Prevention Unit.
ii) At 5h00 on 5 December 2021 he and his fellow officers were busy conducting
patrols.
iii) They were in a Toyota Quantum police vehicle and visited a hotspot in Phola
Park.
iv) They found a black Mercedes Benz motor vehicle parked alongside the
pavement.
v) When they came closer to the vehicle, the Mercedes drove off at a high speed.
vi) Warrant Officer April was the driver of the police vehicle.
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vii) The police vehicle followed the Mercedes Benz and flashed its headlights.
viii) The Mercedes Benz did not stop and prevented the police vehicle from
overtaking it.
ix) After some time the Mercedes Benz came to a standstill.
x) The police vehicle stopped on the righthand side of the Mercedes Benz.
xi) He opened the door of the police vehicle, alighted from the vehicle and
approached the driver side of the Mercedes Benz.
xii) He knocked on the driver’s window whereafter the window was opened
halfway.
xiii) He smelled heavy liquor when the window was opened.
xiv) He realised that the person is extremely drunk.
xv) The driver of the Mercedes Benz was insulting as he spoke to him.
xvi) He informed the driver that he will be detained.
xvii) The Mercedes was busy idling. He put his hand through the window, switched
off the Mercedes Benz and removed the key.
xviii) The driver opened his door and stepped outside.
xix) The driver was deeply angered and opened the boot of the Mercedes Benz.
xx) The driver took out an axe.
xxi) After some time the driver put the axe back in the boot.
xxii) They arrested the driver who tried to break loose and resisted arrest.
xxiii) The police officers had to force the driver to go down whereafter he was
handcuffed.
xxiv) The police officers put the driver in the Quantum and took him to Pelonomi
Hospital.
xxv) At Pelonomi Hospital a doctor drew blood from the plaintiff.
xxvi) The plaintiff was injured during the arrest.
xxvii) No one assaulted the plaintiff.
The legal position
Unlawful arrest
[7] Section 40(1) (a) and (b) of the Criminal Procedure Act 51 of 1977 (CPA)
provides as follows:
‘A peace officer may without warrant arrest any person –
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(a) who commits or attempts to commit any offence in his presence;
(b) whom he reasonably suspects of having committed an offence referred to in S chedule
1, other than the offence of escaping from lawful custody;’
[8] In order to prove that an arrest is lawful, a defendant has to prove that:
i) the arresting officer was a peace officer;
ii) the arresting officer entertained a suspicion;
iii) the suspect to be arrested committed an offence referred to in S chedule 1;
and
iv) the suspicion rested on reasonable grounds.
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[9] In Biyela v Minister of Police2 the following is stated:
.
‘[33] The question whether a peace officer reasonably suspects a person of having
committed an offence within the ambit of s 40(1)(b) is objectively justiciable. It must, at the
outset, be emphasised that the suspicion need not be based on information that would
subsequently be admissible in a court of law.
[34] The standard of a reasonable suspicion is very low. The reasonable suspicion must be
more than a hunch; it should not be an unparticularised suspicion. It must be based on
specific and articulable facts or information. Whether the suspicion was reasonable, under the
prevailing circumstances, is determined objectively.
[35] What is required is that the arresting officer must form a reasonable suspicion that a
Schedule 1 offence has been committed based on credible and trustworthy information.
Whether that information would later, in a court of law, be found to be inadmissible is neither
here nor there for the determination of whether the arresting officer at the time of arrest
harboured a reasonable suspicion that the arrested person committed a Schedule 1 offence.
[36] The arresting officer is not obliged to arrest based on a reasonable suspicion because
he or she has a discretion. The discretion to arrest must be exercised properly. Our legal
system sets great store by the liberty of an individual and, therefore, the discretion must be
system sets great store by the liberty of an individual and, therefore, the discretion must be
exercised after taking all the prevailing circumstances into consideration.’
[10] In Groves NO v Minister of Police 3 the Constitutional Court held that an
1 Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G–H.
2 Biyela v Minister of Police [2022] ZASCA 36; 2023 (1) SACR 235 (SCA).
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arresting officer has to collate facts and exercise his discretion on those facts. The
arresting officer must be able to justify the exercising of his discretion on those facts.4
[11] In Minister of Safety and Security v Sekhoto and Another,
5 and in dealing with
the discretion of peace officers, the following was held:
‘This would mean that peace officers are entitled to exercise their discretion as they see fit,
provided that they stay within the bounds of rationality. The standard is not breached because
an officer exercises the discretion in a manner other than that deemed optimal by the court. A
number of choices may be open to him, all of which may fall within the range of rationality.
The standard is not perfection, or even the optimum, judged from the vantage of hindsight –
so long as the discretion is exercised within this range, the standard is not breached.’
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Evidence
[12] In Selamolele v Makhado7 the following is stated:
‘Ultimately the question is whether the onus on the party, who asserts a state of facts, has
been discharged on a balance of probabilities and this depends not on a mechanical
quantitative balancing out of the pans of the scale of probabilities but, firstly, on a qualitative
assessment of the truth and/or inherent probabilities of the evidence of the witnesses and,
secondly, an ascertainment of which of two versions is the more probable.’
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[13] The technique generally employed by courts in resolving factual disputes where
there are two irreconcilable versions before it may be summarised as follows : to come
to a conclusion on the disputed issues , the court must make findings on (a) the
credibility of the various factual witnesses, (b) their reliability, and (c) the probabilities.9
[14] In the matter of Govan v Skidmore10 the following is stated:
3 Groves NO v Minister of Police [2023] ZACC 36; 2024 (1) SACR 286 (CC).
4 Ibid para 52
5 Minister of Safety and Security v Sekhoto and Another [2010] ZASCA 141; 2011 (5) SA 367 (SCA).
6 Ibid para 39.
7 Selamolele v Makhado 1988 (2) SA 372 (V).
8 Ibid at 374J.
9 Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA)
para. 5.
10 Govan v Skidmore 1952 (1) SA 732 (N).
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‘…, i n finding facts or making inferences in a civil case, it seems to me that one may, as
Wigmore conveys in his work on Evidence (3rd ed., para. 32), by balancing probabilities select
a conclusion which seems to be the more natural, or plausible, conclusion from amongst
several conceivable ones, even though that conclusion be not the only reasonable one.’11
Evaluation of the evidence
[15] It is not in dispute that the plaintiff was arrested, that the arrest was without a
warrant and that the arresting officer was a peace officer. There is, however, a dispute
as to whether the arrest was lawful and the court is faced with two versions relating to
how the arrest occurred.
[16] The adjudication of this matter requires the determination of which version of
events is more probable. This necessitates a qualitative assessment of the truth and
the inherent probabilities of the evidence, rather than a mechanical balancing of the
two accounts. The plaintiff and the defendant’s witness were subjected to cross -
examination during which the veracity of their versions in chief were tested. The court
also had the opportunity to observe the demeanour of the witnesses whilst they were
testifying.
[17] Sergeant Maliehe impressed me as a credible witness. He answered the
questions posed to him clearly and without hesitation. I am of the view that the
evidence of Sergeant Maliehe was on all material aspects clear and satisfactory.
Much of the cross -examination focused on the contrasts between his evidence in
court and his statement which was admitted into evidence as an exhibit. The contrasts
related to the fact that all the evidence and detail given in court were not included in
his statement. When confronted with this during cross -examination Sergeant Maliehe
explained that he did not deem it necessary to include all the detail in his statement
and that he focus ed on the portions he deemed important. I cannot fault his
and that he focus ed on the portions he deemed important. I cannot fault his
explanation; I am of the view that the discrepancies between the statement and the
evidence given in Court constitutes a mere lack of detail and not a genuine
contradiction. I am of the view that the lack of detail does not render his evidence
unreliable.
11 Ibid at 734B-D.
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[18] The plaintiff did not leave a good impression on the Court. The plaintiff did not
readily make concessions and appeared evasive and sarcastic during cross -
examination. Although the demeanour of witnesses is but one of many factors which a
Court can take into account in determining the credibility of a witness, I am of the view
that the reliability of the evidence of the plaintiff is to be doubted. He has many
reasons to twist his version in his favour. Sergeant Maliehe, on the other hand,
explained that the last time he saw the plaintiff was on the day of arrest and that he
has no reason to testify anything but the truth. Apart from the credibility and reliability,
I am also of the view that the probabilities of this matter favour the version of the
defendant.
[19] According to the plaintiff , he was driving with his girlfriend when he noticed a
vehicle behind him flashing its lights. When he realised that the vehicle was a police
vehicle he brought his vehicle to a stop. The plaintiff’s vehicle was approached by a
police officer who grabbed the key of the plaintiff’s vehicle without uttering a word. The
plaintiff thereafter opened his door and approached the driver of the police vehicle to
retrieve his keys. The plaintiff was thereafter assaulted, handcuffed and placed in the
back of police vehicle.
[20] According to Sergeant Maliehe , he and his fellow officers noticed the plaintiff’s
vehicle parked alongside a pavement at a crime hotspot. When the police vehicle
approached the plaintiff’s vehicle, the plaintiff drove off at a high speed. The police
vehicle followed the plaintiff’s vehicle and the plaintiff’s vehicle eventually came to a
standstill after certain manoeuvres. Sergeant Maliehe approached the plaintiff’s
vehicle, knocked on the driver’s window whereafter the window was opened halfway.
He smelled heavy liquor and realised that the plaintiff was extremely drunk. Sergeant
Maliehe switched off the plaintiff’s vehicle and removed the key as the plaintiff’s
Maliehe switched off the plaintiff’s vehicle and removed the key as the plaintiff’s
vehicle was still idling. According to Sergeant Maliehe the plaintiff opened his door,
stepped outside and took out an axe. The plaintiff eventually put the axe back into the
boot whereafter the plaintiff was arrested. The plaintiff resisted arrest and the police
officers had to use force to subdue the plaintiff.
[21] I am of the view that the plaintiff’s version of events is highly improbable. Why
would a police officer simply grab keys from an ignition without say ing any word to the
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driver of a vehicle? I am, accordingly, of the view that the version of the defendant is
the more probable version of the events which took place at the time of the plaintiff’s
arrest.
[22] On the plaintiff’s own version he drank one beer during the early hours of the
morning when he had to drop his girlfriend off. This admission of the use of alcohol
lends credence to the version of Sergeant Maliehe that he smelled liquor when the
plaintiff opened his car window. The version of Sergeant Maliehe is also strengthened
by the medical report which indicated that the plaintiff wa s moderately under the
influence of alcohol and that a faint smell of alcohol was present. I am of the view that
the probability of the defendant’s version is furthermore strengthened by the fact that
the plaintiff confirmed that an axe was present in the boot of his vehicle.
[23] I accordingly accept the defendant’s version and find that the arrest occurred in
the manner as described by Sergeant Maliehe. Having accepted the version of the
defendant, I now turn to deal with the question whether the arrest was lawful.
Lawfulness of arrest
[24] In order to prove that the arrest was lawful, the defendant had to prove that the
arresting officer was a peace officer, that the arresting officer entertained a suspicion,
that the suspect to be arrested committed an offence referred to in Schedule 1 and
that the suspicion rested on reasonable grounds.
[25] It is not in dispute that Sergeant Maliehe was a peace officer. The first
requirement has accordingly been proved. According to his evidence, he entertained a
suspicion that the plaintiff was driving under the influence of alcohol. This suspicion
arose from the smell of heavy liquor when the plaintiff opened his window and when
Sergeant Maliehe realised by sight that the plaintiff is extremely drunk. In light of this
evidence, I am, therefore, satisfied that the second requirement referred to above has
evidence, I am, therefore, satisfied that the second requirement referred to above has
also been satisfied. Thirdly, d riving under the influence of alcohol is a Schedule 1
offence under the C PA and the third requirement referred to above has accordingly
also been proved by the defendant.
[26] The only remaining requirement is therefore whether the suspicion rested on
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reasonable grounds. I am of the view that the suspicion entertained by Sergeant
Maliehe rested on reasonable grounds.
[27] In deciding whether the defendant has proved the fourth requirement, it should
be taken into account that the standard of a reasonable suspicion is very low. What is
required is that the arresting officer must form a reasonable suspicion that a Schedule
1 offence has been committed based on credible and trustworthy information.
According to Sergeant Maliehe, he personally smelled the heavy liquor and could
plainly see, by looking at the plaintiff, that he was under the influence of alcohol. I am
accordingly satisfied that the suspicion rested on reasonable grounds and that the
fourth requirement has been proved.
[28] Even though I have found that Sergeant Maliehe entertained a suspicion that
the plaintiff committed a Schedule 1 offence and that such suspicion rested on
reasonable grounds, it still has to be considered whether Sergeant Maliehe had to
arrest the plaintiff. An arresting officer is not obliged to arrest a person based on a
reasonable suspicion because he or she has a discretion which discretion to arrest
must be exercised properly. According to Sergeant Maliehe he decided to arrest the
plaintiff as he, as a police official, feared for the li ves of the plaintiff and of the other
road users.
[29] I am of the view that Sergeant Maliehe exercised his discretion to arrest
properly and that his decision to arrest the plaintiff can therefore not be faulted. I
accordingly find that the arrest of the plaintiff was lawful.
Lawfulness of detention
[30] Guidance in respect of detention is to be found in s 39(3) of the C PA which
provides that:
‘The effect of an arrest shall be that the person arrested shall be in lawful custody and that he
shall be detained in custody until he is lawfully discharged or released from custody.’ What
this means is that the immediate consequence of an arrest is detention.
this means is that the immediate consequence of an arrest is detention.
[31] In Minister of Law and Order, KwaNdebele, and Others v Mathebe and
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Another12 the following is stated at 122C:
‘Even though arrest and detention are separate steps there is a strong correlation between the
one and the other. If the arrest is tainted by illegality, the detention will be as well.’13
Accordingly, in light of the fact that I have already found that the arrest was lawful, I
am of the view that the detention of the plaintiff was also lawful.
Assault
[32] The plaintiff alleges that the police officers assaulted him by punching him with
fists on the face, by kicking him with booted feet, by pressing his head to the ground,
by pressing his abdomen to the ground, by twisting his left arm and by slapping him
with open hands in the face. This was denied by Sergeant Maliehe.
[33] Sergeant Maliehe explained that the plaintiff had to be subdued due to the fact
that he resisted arrest. He explained that the police officers had to use force to subdue
the plaintiff and that he could have sustained the injuries during the process of arrest.
[34] I am of the view that it is probable that the plaintiff sustained the injuries during
the arrest. I accordingly find that the plaintiff was not assaulted as alleged by him.
[35] In light of the findings made hereinabove, the plaintiff cannot succeed in his
claims for unlawful assault and unlawful arrest and detention.
Order
[36] I accordingly make the following order:
The plaintiff’s claim is dismissed with costs.
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J ELS
ACTING JUDGE OF THE HIGH COURT
12 Minister of Law and Order, KwaNdebele, and Others v Mathebe and Another 1990 (1) SA 114 (A).
13 Ibid at 122C-D.
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Appearances
For the Plaintiff: Adv L.R. Bomela
Instructed by: Mohobo Attorneys Inc
Bloemfontein
For the Defendant: Adv F Dlamini
Instructed by: The Office of the State Attorney
Bloemfontein