THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: A301/2025
In the matter between:
CHARMAINE MENTZA First Appellant
FRANDALL PEKEUR Second Appellant
MELVIN SILJEUR Third Appellant
NATASHA MENTZA Fourth Appellant
TRUDIE JACOBS Fifth Appellant
And
MINISTER OF POLICE Respondent
Coram: Da Silva -Salie J et Yake AJ
Heard: 31 July 2026
Delivered: Electronically on 10 September 2026
Summary: Appeal against dismissal of claim for unlawful arrest and detention
– principles restated –whether reasonable suspicion exists for purposes of
section
40(1)(b) of Criminal Procedure Act 51 of 1977 - arrest and detention lawful.
ORDER
a) The appeal is dismissed with costs on scale C
JUDGMENT
YAKE AJ (DA SILVER - SALIE J concurring)
Introduction
[1] This is an appeal against the whole judgment and order delivered by
Magistrate Albertyn (“the court a quo”) sitting in Robertson Magistrate Court
on 1 7 September 2025, wherein the appellants’ claim s were dismissed. The
appellant’s claims were founded upon the allegations of the unlawful arrest and
detention.
[2] In addition, the appellants seek this Court to grant the relief set out in
their notice of appeal. In their notice of appeal, the appellant s advanced several
grounds of appeal in support of the contention that the court a quo erred and
misdirected itself. The respondent opposes the appeal and seeks to uphold the
judgment and order of the court a quo. The grounds of appeal are succinctly set
out below as follows:
(a) The court a quo erred in its findings and conclusions in several
material respects:
(i) In finding that the respondent satisfied the onus to prove the
arresting officer had reasonable ground to effect arrest when
he relied purely on the contents of the statements, card
machine slips and journals in the case docket; but testified
that Natasha Mentza (fourth appellant and Jerowin Joseph
were arrested purely because the abbreviations of their
names proved that they were on duty when the crime was
purportedly committed.
(ii) In not making a finding in respect of each of the appellants
individually considering the contents of the case docket the
arresting officer relied on.
(iii) In not considering the fact that the arresting officer
disregarded the DPP’s direction that each one of the group of
employees must be targeted individually when applying to
conduct an undercover operation.
(iv) In finding that the appellants were not threatened or
intimidated based on the independent witness Crous’s
testimony is erroneous because the court disregarded the fact
that this witness left the meeting early.
(v) In finding that the appellants were not credible witnesses
because of the inconsistencies in respect of how much
money they were asked to pay and for what purpose.
(vi) In not taking into account that the appellants’ concessions on
technical points in law i.e. what constitutes arrest, reasonable
grounds and reasonable suspicion, are of no consequence.
(vii) In not taking into account that the arresting officer did not
know of the existence of the Standing Order G341
promulgated under the Police Act.
(viii) In finding that the reason provided by the arresting officer of
why he opted to arrest, are legitimate reasons.
(ix) In finding that the arresting officer’s doing that the
appellants were incarcerated after their first appearance in
light of the officer’s testimony that he opposed bail.
(x) In finding that two of the appellants admitted to committing
fraud in allowing the public to draw cash i.e. the so -called
cash back transactions.
[3] It is instructive to first summarise the background facts which are either
common cause or were accepted by the court a quo underlying this appeal.
Factual Matrix
[4] The background facts, which were presented in the court a quo and
largely common cause on the record, may be summarised as follows. Certain
employees of Caltex Garage, Rola Ford petrol station were implicated in
fraudulent activities. The appellants were alleged to have been among those
employees. The modus operandi employed was that some truck drivers would
purchase fuel using their employer’s petrol card for a specified amount. It
would then be agreed between the truck driver and the employee that a higher
amount be recorded than the fuel actually purchased. The difference would
thereafter be shared between them.
[5] In other instances, no fuel was purchased at all. Instead, the card would
be presented under the pretence of a fuel transaction, while cash was handed
back to the cardholder. This practice was colloquially referred to as “cashback.”
In further instances, customers’ cards were charged with inflated amounts
without their knowledge, thereby unlawfully extracting additional sums.
[6] The fraudulent activities came to the attention of Warrant Officer Davids
(“Davids”), now deceased, through information received from his informer.
Davids, in turn, reported the matter to Captain Abrahams (“Abrahams”), who
thereafter undertook the investigation.
[7] Through the course of his investigation, Abrahams discovered that certain
receipts were never entered into the journals, thereby indicating that the monies
for particular fuel transactions were not accounted for. Abrahams approached
Mr Theodore Willemse (“Willemse”), the manager of Rola Ford, as well as Ms
Marianna Hartzenberg (“Hartzenberg”), a shift manager, both of whom
implicated the appellants.
[8] Abrahams further obtained video footage depicting some suspicious
activities. Having collected this information, he proceeded to conduct a trap
operation in terms of section 252A of the Criminal Procedure Act (“CPA”)1.
The operation was carried out on 1 November 2016. A statement was thereafter
obtained from Mr Quinn van der Merwe, who executed the trap operation.
[9] As a result of the foregoing investigation, Abrahams formed the view that
a reasonable suspicion existed that the appellants were acting as a syndicate,
engaged in fraudulent activities. Acting upon that suspicion, he proceeded to
arrest and charge the appellants with fraud. Four of the appellants remained in
custody, while one was released on bail.
1 Criminal Procedure Act 51 of 1977
[10] Abrahams testified that he did not consider alternative methods of
securing the appellants’ attendance in court, as the investigation was not yet
finalised. He further explained that, even after the appellants’ arrest, two
additional fraudulent transactions were perpetrated. His decision was also
influenced by the need to protect his witness, Hartzenberg, from possible
interference, the existence of other potential suspects still to be apprehended,
and the necessity of confirming the appellants’ residential addresses.
[11] Pursuant to their arrest, the appellants were brought before the Robertson
Magistrates’ Court for their first appearance on 11 November 2016. The matter
was thereafter postponed for the purpose of verifying their residential addresses.
On 17 November 2016, the appellants were released on bail. The proceedings
continued until 1 June 2017, when the court struck the matter from the roll.
[12] I pause to observe that the charge sheet included in the record does not
reflect the proceedings of 1 June 2017. This Court is therefore unable to
ascertain the reasons for the matter having been struck from the roll.
[13] All the appellants admitted that they were employees of Caltex garage.
The first appellant, Ms Charmaine Mentza (“Charmaine”), and the fifth
appellant, Ms Trudie Jacobs (“Trudie”), were employed as cashiers. The second
appellant, Mr Frandall Pekeur (“Frandall”), the third appellant, Mr Melvin
Siljeur (“Melvin”), and the fourth appellant, Ms Natasha Mentza (“Natasha”),
served as petrol attendants.
[14] Charmaine was implicated by the affidavit of Willemse , video footage as
well as documentary evidence. Frandall was implicated by the information of
Davids’s informer, by Hartzenberg, and by documentary evidence. Melvin was
implicated by Davids’s informer, Hartzenberg, Willemse, and documentary
evidence. Natasha was implicated by documentary evidence alone. Trudie was
implicated by Willemse, Hartzenberg, Mr Quinn van der Merwe, and
documentary evidence.
[15] Notwithstanding these allegations, each of the appellants denied any
involvement in fraudulent activities and contend ed that their arrest and
detention were unlawful. The respondent , in turn, denied that the appellants’
arrest and detention were unlawful. It contended that the arresting officers acted
within the scope of the empowering statutory provision.
Proceedings of the court a quo
[16] At the trial, only the arresting officer, Abrahams, gave evidence on behalf
of the respondent on the merits. Davids, who was also involved in the matter,
has since passed away. In his testimony, Abrahams maintained that the arrest
and detention of the appellants were lawful. He contended that he had a
reasonable suspicion that the offence of fraud ha d been committed and in
arresting the appellants he acted upon that suspicion.
[17] Conversely, all the appellants testified on their own behalf, and each
denied any involvement in the offence. They averred that their arrest and
detention were unlawful. The appellants contended that Abrahams did not
entertain a reasonable suspicion sufficient to justify their arrest. In the
alternative, they argued that, even if such suspicion existed, Abrahams failed to
exercise the discretion afforded to him in terms of G341 of the Police Standing
Orders.
The findings of the court a quo
[18] On 17 September 2025, the court a quo found that the testimony of the
appellants was replete with discrepancies and inconsistencies. The court a quo
found that the respondent had discharged its onus and had established that the
arrest and detention of the appellants were lawful. As such the appellants’ claim
was dismissed.
Issues for determination
[19] The crisp issues to be determined in this appeal are three-fold:
(a) whether Abrahams had reasonable suspicion to arrest the
appellants; if found that he did;
(b) whether Abrahams exercise his discretion in arresting and
detaining the appellants.
(c) whether the arrest and detention of the appellants were lawful. Put
differently, the question is whether the jurisdictional requirements
of section 40(1)(b) of the CPA were met.
[20] Having outlined the issues for consideration, it is imperative to set out the
legal principles applicable on appeal. I am also mindful of the appellants’ stance
that, they are challenging both the question of facts and law.
Applicable legal principle
[21] It is settled law that in a matter such as the present, this Court’s powers
to interfere on appeal with the findings of fact of the trial court are limited in the
absence of demonstrable and material misdirection. Where there is no
misdirection on the facts, the presumption is that the trial court’s findings are
correct, and the appellate court will only interfere with them if it is convinced
that those findings are wrong. This principle was re affirmed by the Supreme
Court of Appeal in Malan and Another v Law Society of the Northern
Provinces2 where the following was observed:
‘A court of appeal has limited powers to interfere with a decision of the court of first
instance. In relation to the first leg of the inquiry, which is factual, appeals are subject
to the general limitation that courts of appeal defer to the factual findings of courts of
first instance (R v Dhlumayo 1948 (2) SA 677 (A)).’
[22] However, in Minister of Safety and Security & others v Craig & others
NNO,3 Navsa JA, observed that although courts of appeal are slow to disturb
findings of credibility, they generally have greater liberty to do so where a
finding of fact does not essentially depend on the personal impression made by
a witness’ demeanour, but predominantly upon inferences and other facts and
upon probabilities. In such circumstances, a court of appeal , with the benefit of
a full record , may often be in a better position to draw the appropriate
inferences.
Submissions by parties
[23] Mr Engelbrecht, appearing for the appellants, contends that the court a
quo erred on both a question of fact and of law. Addressing the question of fact,
counsel submitted that the court a quo failed to deal adequately with the
material contradictions in Abrahams’s evidence. Instead, the court a quo placed
undue weight upon the discrepancies in the appellants’ testimony. Counsel
further argued that, in reaching its decision, the court a quo adopted a blanket
approach, rather than analysing the position of each appellant in isolation.
2 Malan and Another v Law Society of the Northern Provinces [2008] ZASCA 90; 2009 (1) SA 216 (SCA) at
para 12
3 Minister of Safety and Security & Others v Craig & others NNO 2011 (1) SACR 469 (SCA) at para 58.
[24] Conversely, Mr Wallis Roux, appearing for the respondent, argued that
the testimony of the appellants cannot be assessed in isolation, as the offences
constituted an organised crime, properly planned and executed by the appellants
acting in concert. Counsel contended that the contradictions referred to by the
appellants were not material to the central issue, namely whether Abrahams
entertained a reasonable suspicion sufficient to justify the arrest and detention
of the appellants. Mr Roux further submitted that there was no misdirection in
the decision of the court a quo , and that the appellants’ claim was correctly
dismissed.
Evaluation
Did the respondent comply with the four jurisdictional requirements?
[25] It is instructive I first consider the statutory power vested on Abrahams to
arrest the appellants. It is trite that the onus rests upon the respondent to
establish that the appellants’ arrest and subsequent detention were lawful.4 In
the present matter, it is common cause that the appellants were arrested without
the authority of a warrant. The law does not, however, prohibit a p olice officer
from effecting such an arrest. What is required is that the arrest be undertaken
strictly within the parameters of legality, and the burden accordingly rests upon
the arresting officer to demonstrate its lawfulness.
[26] It is apposite that an arrest without a warrant constitutes a prima
facie infringement of personal liberty. It is therefore fair and just that the party
effecting or causing such arrest should bear the burden of proving that the
deprivation of liberty was justified in law.5
4 Syce and Another v Minister of Police 2024 (2) SACR 1 (SCA) at para 40.
5 Minister of Law and Order v Hurley 1986 (3) SA 568 (A) at 589E-F.
[27] The principle that the respondent bears the burden of justifying the
deprivation of liberty is firmly rooted in constitutional and statutory law.
Section 12 (1) (a) of the Constitution, 6 guarantees to every person the right to
freedom and security, which includes the right not to be deprived of liberty
arbitrarily or without just cause. It follows that any arrest and detention must be
supported by lawful authority. In this regard, a police officer is required to
apply his mind to the detention of an arrestee and to the circumstances attendant
thereto. A failure to exercise such judgment properly renders the detention
unlawful.7
[28] Accordingly, once the appellants allege that their arrest and detention
were unlawful, the onus shifts to the respondent to demonstrate compliance with
the jurisdictional requirements of section 40(1) (b) of the CPA. Only by
establishing such compliance can the respondent discharge the burden of
proving that the interference with liberty was justified in law.
[29] Where a p olice officer elects to arrest without a warrant, it is imperative
that the jurisdictional prerequisites prescribed in section 40(1) of the C PA are
satisfied. Section 40(1)(b) of the CPA which deals with the arrest of the suspect
without warrant and provides that:
‘A peace officer may without warrant arrest any person –
‘(a)…
(b) whom he reasonably suspects of having committed an offence referred to in
schedule 1’.
[30] This section empowers a police officer to arrest, without a warrant, any
person reasonably suspected of having committed an offence listed in Schedule
6 The Constitution of the Republic of South Africa Act, 1996
7 Minister of Justice and Constitutional Development and Another v Zealand (387/06) [2007] ZASCA 92; 2007
(2) SACR 401 (SCA)
1, save for the offence of escaping from lawful cust ody.8 The court in Duncan v
Minister of Law and Order9 the court held that there are four elements that must
be present for the arrest to comply with the lawful requirements for the police
officer to effect the arrest. These jurisdictional facts for a section 40(1)(b) of the
CPA defence are that (i) the arrestor must be a peace officer; (ii) the arrestor
must entertain a suspicion; (iii) the suspicion must be that the suspect (the
arrestee) committed an offence referred to in Schedule 1; and (iv) the suspicion
must rest on reasonable grounds.
[31] The first three jurisdictional requirements are readily ascertainable and
had been proven. Firstly, it was undisputed that Abrahams, who effected the
arrest, was a peace officer.10 Secondly, Abrahams e ntertained a suspicion that
the appellants had committed an offence of fraud, and thirdly, fraud falls within
Schedule 1 of the C PA. These requirements have been proven and are not in
dispute.
[32] What remains for determination is the fourth requirement, namely , the
suspicion must rest upon reasonable grounds .11 This requirement requires closer
scrutiny before a police officer may be clothed with the necessary authority to
effect an arrest. Put differently, the question is whether Abrahams entertained a
reasonable suspicion sufficient to justify the arrest of the appellants.
[33] Mr Engelbrecht, contends that Abrahams entertained no reasonable
suspicion to arrest Frandall and Natasha, as there was nothing linking them to
the commission of any offence. He submits that the sole reason for Natasha’s
arrest was her mere presence at her workplace on 10 October 2016. In support
of this contention, reliance was placed on Minister of Police and Another v
8 Section 40(1)(b) of the Criminal Procedure Act 51 of 1997
9 Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G-H.
10 Under s 1 of the Act, peace officers include police officers
10 Under s 1 of the Act, peace officers include police officers
11 Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) at 658E-H.
Hoogendoorn. 12 Counsel argued that the present matter bears similarities to
Hoogendoorn, in that both concerned allegations of fraud where the
investigating officer sought the opinion of the prosecutor prior to effecting
an arrest. In Hoogendoorn the court held that a prosecutor is not a peace officer,
and that a police officer cannot rely upon the prosecutor’s opinion to justify an
arrest. It was concluded that the investigating officer had failed to exercise
his discretion, with the result that the arrest was unlawful.
[34] Similarly, with regard to Frandall, counsel contends that the only
evidence implicating him emanated from an informer. He submits that
information from an informer, standing alone, is insufficient to justify an arrest.
In this regard, reliance was placed on Mabona and Another v Minister of
Law and Order and Others13 (“Mabona”), where the court held that the arrest
of the plaintiffs were not justified when, after searching the plaintiffs’ home
based on information received, the police found nothing incriminating.
[35] The court in Mabona went further to hold that a reasonable policeman,
upon failing to discover any corroborative evidence, would no longer have good
grounds for suspicion and would not have proceeded with an arrest. Instead,
such officer would have conducted further investigation. The court accordingly
held that the arrest of the plaintiffs was unlawful. On this basis, counsel argued
that the arrests of Natasha and Frandall were likewise as in Mabona, unlawful.
[36] Conversely, Mr Wallis Roux argued that when dealing with Natasha
and Frandall, the court should look at the evidence into totally. The court should
consider that this was an organised crime which certain employees of the petrol
station worked together to realise their crime. Counsel argued that there was
reasonable suspicion that Natasha committed a crime as she was at work when a
12 Minister of Police and Another v Hoogendoorn 2022 (2) SACR 36 GP
13 Mabona ibid fn 11
certain amount of money appeared on the slip but not on the journal. Counsel
further argued that the Mabona matter finds no application in Frandall matter,
as
Frandall was implicated by journal, receipt and affidavits not by an informant.
He argued that Frandall was working with Mervin and they both targeted a
green truck, where one will keep a look out while the other will go to the driver.
On this basis, counsel argued that there was reasonable suspicion for Abrahams
to arrest both Natasha and Frandall as such their arrest was not unlawful.
Reasonable Suspicion
[37] The test for determining whether a suspicion is reasonably entertained is
objective. The question is: ‘Would a reasonable person in the arresting officer’s
position, and possessed of the same information, have considered that there
were good and sufficient grounds for suspecting that the arrestee was guilty of
the offence in question?
[38] In Minister of Safety and Security and Another v Swart ,14 the Supreme
Court of Appeal held that:
‘The question is whether any reasonable person, confronted with the same set of
facts’, would draw the same conclusion. The requirement that the police officer acted
reasonably will not suffice if their action does not objectively conform to that of a
reasonable person. The reasonable person test is to ensure that the actions of the
police officer would equate to the actions of a police official that was in his or her
position. If it can be said that the police officer’s actions align with that of an officer
in their position armed with the same information and that another police officer
would have acted the same while being armed with the same information, it could be
said that the police officer acted reasonably.’
14 Minister of Safety and Security and Another v Swart 2012 (2) SACR 226 (SCA) at para 20
[39] This principle was re affirmed in Biyela v Minister of Police,15 where the
Supreme Court of Appeal explained the position as follows:
‘[23] The issue is not whether there is evidence admissible in a court available to the
arresting officer, but whether there was information available which would cause him to
reasonably suspect the suspect of having committed the relevant offence. The
reasonableness requirement therefore extends inter alia to the reliability or accuracy of
the information upon which an arrest is founded, including the quality and ambit thereof.’
…
“[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. 16 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.’ (My emphasis)
[40] Applying the above authorities, in the present matter, Abrahams was
required to entertain was a reasonable suspicion that a crime had been
committed. It bears emphasis that the test is not equivalent to that applied in
criminal proceedings, where a reasonable inference must be the only inference
criminal proceedings, where a reasonable inference must be the only inference
to be drawn. In the context of arrest under section 40(1)(b) of the CPA, the
threshold is markedly very lower. The arresting officer need only entertain a
15 Biyela v Minister of Police 2023 (1) SACR 235 (SCA).
16 Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A) at 579H.
reasonable suspicion that an offence has been committed. Suspicion, though it
must rest upon objective grounds, does not demand certainty nor exclusivity of
inference. It suffices that the suspicion be rationally founded and capable of
sustaining the decision to arrest.
[41] In the present matter, the evidence reveals that a crime was indeed
committed, and that it constituted an organised scheme which was carefully
planned and executed over a period of approximately five years. A number of
employees of Rola Ford were implicated in this syndicate.
[42] The modus operandi was that, in these fraudulent transactions, the amounts
reflected on the slips would not correspond with the entries in the journal. This
discrepancy demonstrates that the scheme was thoroughly conceived and
systematically implemented. It bears emphasis that such a scheme could not
have been perpetrated by a single individual. The petrol attendants necessarily
had to collaborate with the cashiers in order to access and misappropriate funds
from the tills. The evidence thus points to a c oordinated enterprise involving
multiple actors within the organisation.
[43] As correctly submitted by Mr Wallis Roux, the present matter is
distinguishable from Mabona. In Mabona, the arrest was predicated upon
information supplied by an informant. By contrast, in the instant case the arrest
was grounded in documentary evidence; namely journals and receipts, as well
as the affidavit of Ms Hartzenberg, herself an employee of Rola Ford, who
personally, witnessed the fraudulent activities.
[44] On 10 October, a fraudulent transaction was perpetrated. On that day,
Natasha together with two other employees were present at work when the
transaction occurred. A slip was issued without a corresponding entry in the
journal, and none of the three employees was prepared to accept responsibility
for the irregularity. In these circumstances, any reasonable person would have
entertained suspicion that a crime was being committed. Faced with the refusal
of any of the three employees to account for the discrepancy, Abrahams was
justified in arresting all three. His suspicion was not only reasonable but
objectively grounded in the documentary evidence and the conduct of the
employees before him.
[45] In my view, the suggestion advanced by Mr Engelbrecht that Natasha was
implicated in this matter purely by virtue of her presence at work is untenable.
The evidence demonstrates that her implication arose not merely from her
presence, but from her association with a transaction in which a slip was issued
without a corresponding journal entry, and in circumstances where none of the
employees present accepted responsibility.
[46] Similarly, the contention that Frandall’s implication rested solely upon
information from an informant is not borne out by the evidence. His implication
was grounded in the broader evidentiary matrix, including documentary
irregularities and corroborating affidavit of Hartzenberg.
[47] The further suggestion that Abrahams ought not to have arrested them
cannot be sustained. To adopt such a position would be to countenance the
continuation of criminal activity and to undermine the very purpose of arrest as
a lawful mechanism to secure attendance and prevent further offences. In my
view, Abrahams’ suspicion was thus both reasonable and justified in law.
[48] I do not propose to deal with the question of reasonable suspicion in
respect of Charmaine, Melvin and Trudie, as Mr Engelbrecht has properly
conceded that there existed reasonable suspicion for their arrest.
[49] In the result, I find that Abrahams’ suspicions were reasonable when he
arrested all five appellants. This conclusion signifies that the respondent has
succeeded in establishing all four jurisdictional requirements contemplated in
section 40(1) (b) of the CPA.
[50] Having determined that Abrahams entertained a reasonable suspicion
sufficient to justify the arrest of the appellants, I now turn to the further inquiry:
whether Abrahams exercised his of the discretion to arrest the appellants , the
existence of a continuing offence, the availability of less restrictive statutory
mechanisms.
Did Abrahams exercise his discretion when arresting the appellants?
[51] Once the jurisdictional facts are established, a discretion arises whether to
arrest or not.17 The police officer, is not obliged to effect an arrest, the police
have a discretion on the manner to effect arrest. The CPA provides different
methods by which the attendance of an accused in court may be secured for
purposes of trial. These include, inter alia, arrest, summons, written notice, and
indictment, each in accordance with the relevant provisions of the Act.18
[52] A police officer is vested with a discretion to employ any of the methods
provided by the CPA to secure the attendance of an accused in court, having
regard to the circumstances of each case. The arresting officer must therefore
consider the facts before him and exercise his discretion in light of those facts.19
The discretion is not unfettered; it must be exercised rationally, reasonably, and
in accordance with the constitutional imperative that any deprivation of liberty
be justified in law. It is therefore important to determine whether Captain
Abrahams appreciated that he possessed such a discretion.
17 National Commissioner of Police and Another v Coetzee 2013 (1) SACR 358 (SCA) para 14.
18 Section 38 of the CPA
19 Groves NO v Minister of Police 2024 (1) SACR 286 (CC) para 52; MR v Minister of Safety and Security and
Another 2016 (2) SACR 540 (CC) paras 42-46; Olivier v Minister of Safety and Security and Another 2009 (3)
SA 434 (W) at 445C-F.
[53] Mr Engelbrecht contends that Abrahams failed to exercise the discretion
afforded to him under G341 of the Police Standing Orders. The foundation of
this contention is that Abrahams was unfamiliar with the provisions of G341.
According to counsel, an officer who does not know the Standing Order cannot
meaningfully exercise the discretion vested in him. On this reasoning, it is
argued that the arrest and detention of the appellants could not be lawful, as the
discretion required by the Standing Orders was not properly invoked or applied.
[54] In contrast, Mr Wallis Roux contends that Abrahams did exercise his
discretion by releasing Natasha after considering her circumstances. Counsel
submits, if Abrahams did not exercise his discretion, he would not have released
Natasha. Moreover, his lack of knowledge of the Standing order, does not make
him an incompetent officer.
[55] Abrahams was cross -examined at length during the trial regarding his
lack of knowledge of the Standing Order. He was further criticised by Mr
Engelbrecht on this issue. I note that Abrahams conceded that he was not aware
of the Standing Order. The question that arises is whether, his lack of
knowledge of the Standing Order can constitute in him not exercising his
discretion.
[56] Abrahams testified that after all the appellants had arrived at the police
station, Natasha complained of being in pain as she was pregnant. H e
consciously made a decision not to arrest her and instead released her on bail .
Notwithstanding that Natasha had the same circumstances as the other
appellants, and that he could have, as correctly argued by Mr . Engelbrecht,
taken her to hospital to seek medical attention, he decided against that. That in
my view indicates that he was fully conscious that he had a discretion to arrest
or not. This is by no means indicative that there were no grounds for him to
arrest. In my view, notwithstanding Abrahams’s lack of knowledge of the
Standing Order, he did exercise the discretion vested on him. Moreover, the
Standing Order G341 that the appellants are referring to has since been repealed
and replaced by National Instruction 11 of 2019. The lawfulness of the arrest
cannot therefore depend upon compliance with the Standing Order itself , but on
the underlying constitutional premise . This remains the same; that arrest is a
coercive mechanism to secure the proper administration of justice , not an end in
itself. I therefore reject the submission advanced by the appellant’s counsel that
Abrahams failed altogether to appreciate the existence of a discretion; the
transcript does not support that conclusion.
Were the arrest and detention of the appellants lawful?
[57] The next issue for consideration is whether the arrest and subsequent
detention of the appellants were lawful. The record demonstrates that the
offences in question constituted an organised scheme, perpetrated over a period
of five years, in which employees of the petrol station systematically defrauded
both the business and unsuspecting customers. Evidence was adduced that even
innocent patrons fell victim to this fraudulent enterprise.
[58] Abrahams testified that he elected not to release the appellants because
the investigation remained incomplete, the protection of his witness was
paramount, and the appellants’ residential addresses required verification. He
further indicated that, notwithstanding the appellants’ arrest, two additional
fraudulent transactions were committed thereafter, underscoring the organised
nature of the criminal activity.
[59] Mr Engelbrecht submitted that the arrest of the appellants was
unnecessary and actuated by ulterior motives. In support of this contention,
counsel relied upon the fact that Natasha was released while the other appellants
remained in custody. In his view, pregnancy does not constitute a lawful ground
for release, as arrangements could have been made to ensure that Natasha
received appropriate medical care while under arrest. On this basis, Mr
Engelbrecht contends that the release of Natasha is indicative of an ulterior
motive, as it demonstrates that Abrahams did not possess adequate grounds to
sustain the arrest.
[60] Counsel further argues that Abrahams was aware of the appellants’
residential addresses, and thus the purported need for verification was
unfounded. He maintains that Abrahams ought to have considered the
individual circumstances of each appellant, rather than treating them
collectively in a holistic manner. By failing to do so, counsel submits,
Abrahams acted not for the legitimate purpose of securing the appellants’
attendance in court but rather employed the arrest and detention as an
investigative tool and as a means of exerting pressure upon the appellants to
turn against one another. On this basis, Mr Engelbrecht concludes that the arrest
and detention of the appellants were unlawful.
[61] On the contrary, Mr Wallis Roux submitted that the offences constituted
organised crime, and that Abrahams could not reasonably have dealt with the
appellants on an individualised basis. Counsel argued that there were reasonable
grounds to release Natasha, and that her release did not undermine the
legitimacy of the arrests effected in respect of the remaining appellants. He
further contended that the incompleteness of the investigation could not serve as
a decisive factor against arrest. According to Mr Roux, the interrogation of
suspects forms an integral part of the investigative process, and there was
nothing improper in Abrahams interrogating the appellants. This, he maintained,
did not signify that Abrahams had no intention of bringing them before court.
[62] Counsel emphasised that there existed a compelling and strong prima
facie case against the four remaining appellants. The respondents relied upon
the evidence of Willemse and Hartzenberg, together with corroborating video
footage, to demonstrate that the appellants were implicated in the fraudulent
scheme. In Mr Roux’s submission, this evidence exceeded the threshold of
reasonable suspicion and fully warranted their arrest.
[63] It is imperative that, where a peace officer elects to effect an arrest, the
decision must be informed by the intention of bringing the arrested person
before
a court of law to face justice. The authorities are clear that arrest has always
been
premised upon the need to secure the attendance of an accused
person at trial, and never as a form of punishment. Even where arrest is
justified,
it must be exercised only after careful consideration of the surrounding
circumstances of the case. Police officers are accordingly enjoined to ensure
that
the decision to arrest is properly justified and not undertaken lightly or
mechanically.
[64] Each case must be determined on its own merits, with due regard to the
constitutional imperative that liberty may not be curtailed arbitrarily or without
just cause. The question whether a police officer has a discretion when
executing a warrant not to arrest was the subject matter before the
Constitutional
Court in Groves N.O. v Minister of Police,20where the Court examined the scope
and limits of such discretion in light of constitutional safeguards. The apex
court
20 Groves N.O. v Minister of Police [2023] ZACC 36; 2024 (1) SACR 286 (CC); 2024 (4) BCLR 503 (CC).
clarified the legal uncertainty occasioned by the dictum in Minister of Safety
and
Security v Sekhoto and Another,21. In Sekhoto, the Supreme Court of Appeal
found:
‘Once the jurisdictional facts for an arrest, whether in terms of any paragraph of
s 40(1) or in terms of s 43 are present, a discretion arises. The question whether there
are any constraints on the exercise of discretionary powers is essentially a matter of
construction of the empowering statute in a manner that is consistent with the
Constitution. In other words, once the required jurisdictional facts are present the
discretion whether or not to arrest arises. The officer, it should be emphasised, is not
obliged to effect an arrest. This was made clear by this Court in relation to s 43
in Groenewald v Minister of Justice.22’
[65] Considering the aforesaid finding, for which reliance was placed on
Groenewald, the Constitutional Court in Groves at para 51 held that the
statement in Groenewald was an obiter dictum and constitutes an error in law.
The Court clarified that Groenewald did not decide that a peace officer effecting
an arrest on the strength of a warrant possesses a discretion whether or not to
arrest. Rather, the case dealt with the discretion of the magistrate or peace
officer authorising the warrant of arrest.
[66] It must therefore be emphasised that the offence under consideration
constituted organised crime which had been ongoing for a considerable period.
If left unchecked, such conduct would inevitably result in further and more
damaging consequences. Police officers are accordingly expected to perform
their duties diligently in order to put a stop to activities of this nature.
[67] Abrahams was presented with information from an informer through
Daniels. Upon receipt thereof, he conducted his own investigation which
21 Minister of Safety and Security v Sekhoto [2010] ZASCA 141; 2011 (2) SA 157 (SCA) at para 28
22 Groenewald v Minister van Justisie 1973 (3) SA 877 (A) at 883G-884B
confirmed that fraudulent activities were indeed taking place. He obtained
statements from Hartzenberg and Willemse implicating the appellants and
further secured video footage and documentary evidence corroborating their
involvement.
[68] In these circumstances, it was to be expected that Abrahams would arrest
members of a syndicate which had conducted itself in this manner for several
years. In my view, the arrest was justified as a means of curtailing fraudulent
activities which persisted even after the appellants had been apprehended.
[69] Moreover, section 40(1) (b) of the C PA does not require certainty that a
crime has been committed before an arrest may be effected. The statutory
threshold is that the arresting officer must entertain a reasonable suspicion. Put
differently, the officer need not be convinced that there exists evidence proving
the guilt of the arrestee beyond reasonable doubt; that is not the test at this
stage. The court in Lifa v Minister of Police and Another, 23following what had
been said in Biyela,24 held that it is not a requirement that a thorough
investigation be completed before an arrest without a warrant is effected. The
need to carry out further investigations prior to exercising the discretion to
arrest depends, as the court observed, upon the facts of each particular case.
[70] I note the submissions of Mr Engelbrecht that Natasha could have been
kept in detention, as medical care could have been arranged for her. In principle,
I agree that such an approach was legally permissible. However, it must equally
be recognised that Abrahams was seized with a discretion to determine whether
release was appropriate in the circumstances. The mere fact that he elected to
release Natasha does not, without more, demonstrate mala fides or negate the
existence of a prima facie case against the appellants.
23 Lifa v Minister of Police and Another 2023 (1) All SA 132 GJ at [49].
24 Ibid fn15
[71] Considering the foregoing, it was not necessary for the police to have
completed their investigation before effecting the arrests. The statutory
requirement under section 40(1) (b) is the existence of a reasonable suspicion,
not certainty of guilt. In my view, the evidentiary material available to
Abrahams; including informer information, corroborating witness statements,
and documentary evidence; was sufficient to establish a reasonable suspicion in
respect of the appellants. Accordingly, I find that the arrest of the appellants
was lawful, being grounded in reasonable suspicion and exercised within the
lawful discretion afforded to the arresting officer.
[72] It is trite that the mere fact that an arrest is lawful does not automatically
render the ensuing detention lawful. The lawfulness of detention must be
assessed independently, with reference to the circumstances prevailing at the
time. In this regard, Abrahams testified that the investigation was incomplete,
that further suspects remained to be apprehended, and that the appellants’
residential addresses required verification. These considerations, in my view,
warranted the continued detention of the appellants. Moreover, on the facts, the
conclusion cannot be reached that Abrahams misled the court at the bail
application by relying on incomplete information, as contended by the
appellants. Accordingly, I find that the detention of the appellants was also
lawful. This conclusion is dispositive of the appeal, and it is therefore
unnecessary to consider the remaining issues in any detail. Suffice it to state that
the appellants’ submissions regarding the existence of an error of fact, said to
constitute a causal nexus between the alleged unlawfulness of the arrest and the
continued detention, do not pass muster.
Was the dismissal of the claim founded on factual error?
[73] Mr Engelbrecht argued that the magistrate failed to address contradictions
in Abrahams’s testimony. Counsel submits, in h is evidence-in-chief, Abrahams
stated that the investigation had been completed prior to the arrest. Yet, when
questioned by the court, he altered his position and indicated that certain
affidavits were still outstanding. Counsel further contends that Abrahams denied
the existence of a meeting, notwithstanding Crouse’s testimony that Abrahams
was standing next to her during such meeting.
[74] A further alleged contradiction arises from the interpretation of a
statement which was translated to mean that all employees were involved in the
fraudulent activities, whereas the original version referred only to certain
employees. According to Mr Engelbrecht , these inconsistencies materially
affect the factual findings of the magistrate. On this basis, counsel submits that
the magistrate’s dismissal of their claim was founded upon factual error.
[75] Conversely, Mr Wallis Roux contends that whether Abrahams testified
that the investigation was complete or not does not affect the decisive issue,
namely whether there existed a reasonable suspicion to arrest the appellants.
The lawfulness of the arrest, he submits, turns not on the stage of completion of
the investigation, but on whether the jurisdictional requirements of section
40(1)(b) were satisfied. Moreover, Crous clarified that there was never a formal
meeting, but rather a gathering of persons present at the time. This, counsel
argues, neutralises the alleged contradiction relied upon by the appellants and
does not undermine the factual findings of the magistrate.
[76] I note the contradictions raised by the appellants regarding the factual
findings of the magistrate. The appellants placed reliance on certain
inconsistencies in Abrahams’s testimony, notably whether the investigation had
been completed prior to arrest, whether Willemse and Crous were present at a
been completed prior to arrest, whether Willemse and Crous were present at a
particular gathering, and the precise translation of a statement implicating
employees. While these contradictions may be noted, they are peripheral in
nature. They do not go to the heart of the jurisdictional enquiry under section
40(1 (b), which is whether the arresting officer entertained a reasonable
suspicion that the appellants had committed an offence. The law is clear that
immaterial or collateral contradictions, even if present, do not vitiate the factual
findings of the trial court where the central issue remains unaffected. In this
matter, the contradictions identified do not undermine the existence of
reasonable suspicion, nor do they render the arrest or detention unlawful.
[77] In my view, the court a quo correctly dismissed the applicants’ claim for
unlawful arrest and detention. The evidence demonstrates that the arresting
officer entertained a reasonable suspicion, supported by informer testimony,
corroborating witness statements, and documentary evidence. The subsequent
detention was likewise justified by the ongoing investigation and the need to
apprehend further suspects. For these reasons, the appeal must fail.
Order
[78] In the results, I would propose the following order:
a) The appeal is dismissed with costs on scale C.
_________________________________
S YAKE
ACTING JUDGE OF THE HIGH COURT
I agree and it is so ordered.
________________________________
G DA SILVA-SALIE
JUDGE OF THE HIGH COURT
Appearances
For the Appellant: Advocate Engelbrecht
Instructed by: Hermie Wentzel & Jeanrè Botha Attorneys
For the Applicant: Advocate Wallis Roux
Instructed by: Johan Victor Attorneys & Litigation