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IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between
MATHIE LETTIA MOFOKENG
and
MINISTER OF POLICE
Not reportable
Case no:6630/2023
PLAINTIFF
DEFENDANT
Neutral citation: Mofokeng v Minister of Police (6630/2023) [2026] ZAFSHC 428 (7
September 2026)
Coram: DANISO J
Heard: 24 February 2026 and 5 March 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 11 h00 on 07 September 2026.
Summary: Delict - unlawful arrest and detention - arrest without warrant under s
40( 1 )(b) of the Criminal Procedure Act 51 of 1977 - reasonable suspicion not proved -
credibility and reliability of arresting officer's evidence - R600 000 awarded with interest
from date of judgment.
ORDER
1 Judgment is granted in favour of the plaintiff for unlawful arrest and detention.
2 The defendant is ordered to pay damages to the plaintiff in the sum of R600 000
(six hundred thousand rand) plus interest at the prescribed rate per annum calculated
from date of judgment to the date of payment.
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3 The defendant shall pay the costs of suit including the costs of counsel on Scale
B.
JUDGMENT
Daniso J
[1] The plaintiffs claim against the defendant is for payment of an amount of
R600 000.00 as damages for unlawful arrest and detention.
[2] In the particulars of claim, the plaintiff alleges that on 11 March 2021, she was
arrested without a warrant by members of the South African Police Service, there and
then, acting within the course and scope of their employment with the defendant. The
arrest took place at the Tumahole Police Station where she had gone to lay assault and
contravention of a protection order charges against her former partner, Mr Bafana Zondi.
She was only released on 15 March 2021 without having appeared in court.
[3] The arrest and the subsequent detention is not in dispute. Liability is disputed on
the grounds that the arrest and the detention were lawful as they were carried out in terms
of ss 40(1 )(b) and 50 of the Criminal Procedure Act 51 of 1977 (CPA) which permits an
arrest without a warrant where the arresting officer had a reasonable suspicion that the
plaintiff had committed a schedule 1 offence, namely malicious injury to property.
[4] By agreement between the parties, the duty to begin and the onus of proving the
lawfulness of said arrest and detention was on the defendant whereas the plaintiff carried
the burden of proving the quantum she has claimed.
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[5] The defendant's version was narrated by officer Sarah Mabuya, a female sergeant
stationed at Tumahole Police Station since August 2025, the plaintiff also testified in
support of her claim.
[6] Sergeant Mabuya testified that on the day of the incident, she was on duty at the
charge office performing crime prevention duties and also attending to complaints when
she observed Mr Zondi being assisted by a colleague to open a case. The colleague
informed her that Mr Zondi was there to open a case of malicious injury to property. When
the colleague was done opening the docket, sergeant Mabuya, Mr Zondi and her
colleague went to Mr Zondi's house where he indicated how the wooden door had been
wrenched away from its frame and its butler door pulled from its frame. Pages 27 to 29 of
Exhibit 'A' are photographs depicting the damage. He told sergeant Mabuya that it was
his partner, the plaintiff, who had caused the damage. He was asked to accompany them
to her residence The plaintiff was not found.
[7] Upon returning to the police station, they found the plaintiff standing at the front
door of the charge office. When sergeant Mabuya asked the plaintiff whether she needed
assistance, Mr Zondi pointed at the plaintiff as the person who damaged his property. The
plaintiff admitted that she damaged Mr Zondi's door. She explained that she damaged it
because Mr Zondi had refused to open for her. Sergeant Mabuya then arrested the
plaintiff. It was after 12pm when she detained her. Mr Zondi was also arrested for
assaulting the plaintiff.
[8] Sergeant Mabuya told the court that she could not remember the name of her
colleague who assisted Mr Zondi to open the docket and also accompanied her to
investigate Mr Zonda's allegations.
[9] Under cross-examination, it was sergeant Mabuya's testimony that the officer who
assisted Mr Zondi to open the docket was her commander, sergeant Magudu. She
conceded that she did not take a statement from the plaintiff regarding her admission of
conceded that she did not take a statement from the plaintiff regarding her admission of
the offence. She said she forgot to take the statement. She confirmed that when she
detained the plaintiff, she had visible bruises on her back and on the knees.
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[1 O] The cross-examination also revealed that the plaintiff was interviewed about the
offence by constable Mathikha and the Warning Statement in that regard was also taken
down by constable Mathikha at 17h01 .
[11] Sergeant Mabuya also testified that she arrested the plaintiff at Mr Zondi's
residence after inspecting the damage. She denied the plaintiffs version that she (the
plaintiff) was arrested by six males. She could not dispute that the plaintiff was actually at
the police station the day before to open the assault case against Mr Zondi and that she
was sent to hospital to obtain a J88 medical report (J88). On the day of the incident, she
was at the hospital when she was called back to the police station by constable Mathikha.
In re-examination, Sergeant Mabuya stated that the plaintiff was detained at 16h30.
Apparently, the case was not proceeded with as the plaintiff and Mr Zondi agreed to
withdraw the cases they lodged against each other.
[12] The plaintiff testified that at the time of the incident, Mr Zondi was her partner. Their
relationship soured when she discovered that he was cheating on her. On 10 March 2021,
Mr Zondi came to her house to ask her to rekindle their relationship when she refused,
he demanded that she give back everything that he had bought for her during their
relationship. She also demanded that he must also return what she bought for him. He
agreed and they went to his house for her to collect her belongings, but when they got to
his house, he assaulted her and threw her cellphone against the wall. As a result of the
assault, she sustained back, left leg and eye injuries. Neighbours intervened and called
her sister who took her to the police station to lay charges. At the police station she was
given a J88 and told to take it to a medical practitioner to complete it. On the next day,
she was at the hospital when she was called by constable Mathikha. He instructed her to
she was at the hospital when she was called by constable Mathikha. He instructed her to
return to the police station. It was around 16h00 when she arrived at the police station.
She submitted the J88 and was about to leave when a male officer, Mokoena and his
crew told her that she was being arrested for malicious injury to property, a charge which
she did not understand. She requested an explanation of the charge and also sought an
opportunity to make arrangements for someone to look after her two children, then aged
six and 14 years old. This was refused. She was simply told that the children would be
taken to an orphanage.
[13] The plaintiff was adamant that she was not arrested by sergeant Mabuya, as she
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knows her from Parys. She was able to identify the arresting officer because his name
was on his name tag. The only time she had an encounter with a female officer was after
she was arrested and the female officer instructed her to hand over her cellphone, remove
her shoelaces and to sign the notification of rights document as provided for in s 35 of the
Constitution.
[14] Following the arrest, she was detained at Parys where she was kept in a dirty cell
with no toilet; she had to relieve herself in a bucket. The blankets were also dirty. She
could not even eat and only managed to do so a couple of days later when her family
brought her some food. All the time she was incarcerated, she did not know the
whereabouts of her children. The entire incident traumatized her to the extent that she
had to go for counselling. It was only after four days, on 15 March 2021, that she was
taken out of the cells and told to go home. However, this was not the end of her ordeal.
When constable Mathikha found out that she had instituted these proceedings, he
harassed her by demanding that she withdraws the action. He even went to her workplace
and told her boss that he had arrested her. Her legal representatives intervened and wrote
a letter to him to stop harassing her.
[15] During cross-examination, the plaintiff stated that the reason she went to the police
station was to open a case for assault. She only obtained the protection later, therefore,
her particulars of claim are incorrect where they state that she had also gone to open a
case for the contravention of a protection order. Upon being presented with the original
photographs of the door and butler, the plaintiff confirmed that the wooden door and butler
depicted on the photographs was Mr Zondi's. She, however, denied that she was
responsible for causing any damage to Mr Zondi's property.
[16] This was, in short, the summary of the evidence relayed by the parties. In addition
[16] This was, in short, the summary of the evidence relayed by the parties. In addition
to viva voce evidence, documentary evidence was handed in by concurrence of both
parties as Exhibit 'A' being the photographs of Mr Zondi's damaged wooden door and
butler.
[17] After all the evidence had been proffered, the issues which remained to be
determined were whether the plaintiffs arrest without a warrant was justified as pleaded
by the defendant, therefore lawful, and if the court finds that it was not justified, a further
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question revolves around the amount of damages to be awarded to the plaintiff as
compensatory damages for the degradation of her rights.
[18] The onus is on the defendant to adduce evidence which proves on a
preponderance of probabilities that the arrest was justified.1
[19] The provisions of s 40(1 )(b) of the CPA permit a police officer to arrest a suspect
who is reasonably suspected of committing an offence referred to in Schedule 1 of the
CPA, other than the offence of escaping from lawful custody. The right to arrest without
a warrant under this section is therefore limited to Schedule 1 offences which include
malicious damage to property.
[20) On the available evidence, there are contradictory versions regarding the identity
of the arresting officer and the circumstances under which the plaintiff was arrested.
[21] As it was pointed out in Stellenbosch Farmers' Wine,y Group Ltd & Another v
Martell Et Cie & Others2 the technique to be adopted by a court to resolve factual disputes
is 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 fact or with his own extracurial 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) 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,
1 Minister of Law and Order and Others v Hurley and Another (1986] ZASCA 53; (1986] 2 All SA 428 (A) at
589E-F.
2 Stellenbosch Farmers ' vWnery Group Ltd and Another v Martell Et Cie and Others [2002] ZASCA 98; 2003
(1) SA 11 (SCA).
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as a final step, determine whether the party burdened with the onus of proof has succeeded in
discharging it. The hard case, which will doubtless be the rare one, occurs when a court's
credibility findings compel it in one direction and its evaluation of the general probabilities in
another. The more convincing the former, the less convincing will be the latter. But when all factors
are equipoised probabilities prevail. '3
[22] Applying this technique to the germane facts, the defendant's witness, sergeant
Mabuya rendered an unconvincing version regarding the circumstances under which the
plaintiff was arrested. Her direct evidence contradicted the version she proffered while
under cross-examination and re-examination regarding the details of the colleague who
assisted Mr Zondi to open the docket. At first, she testified that she could not remember
the colleague's details then later she said it was her commander, sergeant Magudu.
There are also inconsistencies in her evidence regarding the place where the plaintiff was
arrested and the time of her detention. Despite having testified that she arrested the
plaintiff at the police station, her other version was that she arrested the plaintiff at Mr.
Zondi's residence after the plaintiff was shown the damage and she admitted to the
offence. The time of detention vacillated from after 12pm to 16h30. The contradictions
are material for the determination of whether sergeant Mabuya was the arrestor
contemplated in s 40(1 )(b). The discrepancies in her testimony affected her credibility, I
cannot rely on her testimony on this disputed aspect.
[23] On the other side, the plaintiff's version on this aspect was concise and convincing
in that, her evidence that she knew sergeant Mabuya before the day of the incident was
undisputed. The fact that there is a male officer by the surname Mokoena was also not
disputed by evidence to the contrary. I have found no reason why the plaintiff would deny
being arrested by sergeant Mabuya if that was the case.
being arrested by sergeant Mabuya if that was the case.
[24] It follows too that as sergeant Mabuya was not the arrestor, she was not privy into
the essential elements of the offence complained about to qualify the suspicion as
reasonable. On her own version, Mr Zondi was assisted by another colleague to open
the docket implicating the plaintiff in the offence of malicious injury to his property.
[25] The fact that the plaintiff was ultimately released from custody without having
3 Ibid para 5.
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appeared in court also puts paid to the defendant's contention that the arrest was lawful.
A person arrested with or without warrant shall either be released on bail if the
circumstances permit and be brought before a lower court as soon as reasonably possible
but not later than 48 hours after arrest.4 An arrest can only be lawful if it is intended to
bring the arrestee before court.
[26) Based on all the reasons that I have set out above, I am not persuaded that the
defendant has discharged the onus of proving on a balance of probabilities that the arrest
of the plaintiff was justified. It follows too that the subsequent detention was also unlawful.
[27] As regards quantum, in the particulars of claim a sum of R600 000.00 is claimed
as damages for the plaintiffs deprivation of liberty. An arrest without a warrant constitutes
an infringement of a person's right to dignity and the right not to be deprived of one's
freedom without just cause.5
(28) There is no fixed formula in terms of which awards of this nature are made. The
awards are assessed ex aequo et bono (according to what is right and fair) taking into
consideration amongst other factors, the personal particulars of a plaintiff, the
circumstances of the arrest, the manner in which it was carried out, the status and
standing of the plaintiff, the presence or absence of an apology or satisfactory explanation
of the events by the defendant, awards in comparable cases, the fact that the plaintiff was
the author of her own misfortune, the period of the detention and any harsh treatment or
malice by the police.6
[29] In this matter, in addition to the usual degradation which comes with being arrested
and detained, the plaintiff was detained in an uninhabitable and unhygienic police cell.
She was also subjected to detention for four days without appearing in court in
contravention of her constitutional right not to be detained without trial, 7 humiliated by
contravention of her constitutional right not to be detained without trial, 7 humiliated by
having to relive herself in a bucket and worst, she was kept in custody despite being
injured and was refused an opportunity to make arrangements for the care of her minor
4 Section 50(1 )(a) and (c) of the CPA.
5 Sections 10 and 12(1 )(a) of the Constitution .
6 Minister of Safety and Security v Tyulu [2009) ZASCA 55; 2009 (5) SA 85 (SCA) para 26; Brits v Minister
of Police and Another (759/2020) [2021] ZASCA 161 (23 November 2021 ); Motladile v Minister of Police
[2023] ZASCA 94; 2023 (2) SACR 274 (SCA) para 17.
7 Section 12(b) of the Constitution.
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children. The plaintiff was treated very badly by the police; there is evidence of the
continuation of the degradation post-release from custody. She was subjected to
harassment by sergeant Mathikha who demanded that she withdraws the claim.
[30] In assessing damages, the court must bear in mind that damages are not meant
to enrich a plaintiff at the expense of a defendant but to offer her solatium for the injury
caused to her dignity. Taking into consideration the above-mentioned factors and the
circumstances of this case, I am of the view that the amount of R600 000 is indeed
commensurate to the injury caused to the plaintiffs dignity.
Costs
[31] The plaintiff is entitled to her costs, however there is an issue that needs to be
addressed, and it is in relation to the date of the calculation of interest on the award. The
order sought by the plaintiff that the interest be calculated from date of arrest is legally
flawed. The calculation of interest in respect of unliquidated damages of this nature must
be reckoned from the date of judgment, otherwise, there would be overcompensation in
respect of the award. 8
Order
[32) The following order is made:
1 Judgment is granted in favour of the plaintiff for unlawful arrest and detention.
2 The defendant is ordered to pay damages to the plaintiff in the sum of R600 000
(six hundred thousand rand) plus interest at the prescribed rate per annum calculated
from date of judgment to the date of payment.
3 The defendant shall pay the costs of sui riAi~=t+A<A41~~~-t"tt--~
_-i,.--
8.
S DANISO
JUDGE OF THE HIGH COURT
8 Minister of Police v Khedama (CCT 154/25) (2026) ZACC 27 (29 June 2026) para 49 to 56.
Appearances
For the Plaintiff:
Instructed by:
For the Defendant:
Instructed by:
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K Motselebane
TSH Radebe INC, Bloemfontein
F Bester
Office of the State Attorney , Bloemfon tein