THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 226/2022
In the matter between:
THE MINISTER OF POLICE APPELLANT
and
VUYANI GOODMAN GQAMANE RESPONDENT
Neutral Citation: Minister of Police v Gqamane (226/2022) [2023] ZASCA 61
(3 May 2023)
Coram: DAMBUZA AP, MOLEMELA and MBATHA and GOOSEN JJA
and SIWENDU AJA
Heard: 3 March 2023
Delivered: 3 May 2023
Summary: Civil procedure – unlawful arrest and detention – arrest in terms of
ss 40(1)(b) and 40 (1) (q) of Criminal Procedure Act 51 of 1977 – assault with
intent to commit grievous bodily harm – domestic violence – discretion to arrest
– failure to plead – onus – whether issue was fully canvassed at trial – whether
arrest lawful.
2
__________________________________________________________________________________
ORDER
________________________________________________________________
On appeal from: Eastern Cape Division of the High Court, Makhanda, (Naidu
AJ with Mjali J concurring), sitting as court of appeal:
1 The appeal is upheld with costs.
2 The order of the high court is set aside and replaced with the following
order:
‘The appeal is dismissed with costs.’
________________________________________________________________
JUDGMENT
________________________________________________________________
Siwendu AJA (Dambuza AP , Molemela and Mbatha and Goosen JJA
concurring):
[1] This appeal involves a discretion to arrest and raises the question whether
a court on appeal can mero motu determine the issue based on the evidence led at
the trial. Ancillary to this is whether, in an action for damages for unlawful arrest,
the plaintiff must discretely plead the failure to exercise the discretion to arrest.
[2] The appeal emanates from a decision of the Eastern Cape Division of the
High Court, Makhanda (the high court), which upheld an appeal against an order
dismissing a claim for damages for unlawful arrest and detention, brought by
Mr Gqamane (the respondent) against the Minister of Police (the appellant). The
high court found that the trial court had failed to consider whether Warrant
Officer Erasmus (W/O Erasmus), the arresting officer in this case, had exercised
a discretion to arrest the respondent. It found that the arresting officer failed ‘to
reasonably apply his discretion in deciding to arrest the [a]ppellant’ and held that
the decision to arrest him was therefore ‘irrational and arbitrary’. The high court
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held the appellant liable for damages in the sum of R160 000. The appeal is with
the special leave of this Court.
[3] The respondent was arrested without a warrant shortly after midnight on
17 February 2017, following a police raid on suspects in Kwazakhele Township,
Gqeberha. On 7 February 2017, Ms Mini (the complainant), with whom the
respondent was in a romantic relationship, lodged a complaint at the Kwazakhele
Police Station. She alleged that on 4 or 5 February 2017, the respondent assaulted
her when she went to collect her lounge suite from his home. She was admitted
at Dora Nginza Hospital (the hospital) for two days and was treated for a broken
arm. She alleged that the respondent attacked her by grabbing her from behind,
hitting her with his hands several times on the face and kicked h er with booted
feet on her body. A charge of assault with intent to commit grievous bodily harm
was recorded. The case docket was also marked with a special ‘domestic
violence’ sticker and assigned to Warrant Officer Gumbi.
[4] On 14 February 2017, the case docket was transferred to the New Brighton
police station and was assigned to W/O Erasmus. It contained the statement made
by the complainant. On 15 February, W/O Erasmus visited the complainant to
interview her, but found she had gone back to hospital for further treatment. He
attempted to obtain a J88 medical report from the hospital’s liaison office, but the
office was closed.
[5] The respondent worked part time as a car guard and lived with his then 15-
year-old son. The complainant and the respondent lived in proximity, some
20 meters away from each other in what appears to have been disused classrooms
at Old Lwandlekazi School in Kwazakhele. At the time of his arrest, the
complainant pointed him out to identif y him to the arresting officer. He was
detained in police cells over the weekend until the Monday when he was taken to
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New Brighton Magistrates Court. He was released directly from the cells at about
14h00 without a court appearance.
[6] In April 2017, the respondent instituted a claim for damages in the
Regional Court, Port Elizabeth (the trial court), against the appellant for damages
arising from his arrest and detention. He alleged, in his particulars of claim, that:
(a) The arrest without a warrant was wrongful and unlawful;
(b) There was no reasonable suspicion that he committed a Schedule 1 offence;
(c) The arresting officer failed to explain his constitutional rights; and
(d) He was detained arbitrarily without just cause.
With regards to the detention, he alleged that:
‘11.1 the arresting officers . . . failed to apply their minds, in respect of [his] detention and the
circumstances relating thereto;
11.2 there were no reasonable and/or objective grounds justifying [his] subsequent detention;
11.3 . . . none of the Defendant’s employees took any or reasonable steps to release [his] . . .;
and
11.4 he was not brought before a court of law, as soon as reasonably possible.’
He claimed an amount of R240 000 plus interest, as damages.
[7] The appellant’s defence was that:
(a) The victim was a complainant as defined in the Domestic Violence Act 116
of 1998 (the DVA).
(b) The assault constituted an incident of domestic violence with an element of
violence.
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(c) The arresting of ficer was entitled to arrest without a warrant in terms of
s 40(1)(q)1 of the Criminal Procedure Act 51 of 1977 (the CPA) read with s 3 of
the DVA2.
(d) T he arresting officer reasonably suspected the respondent of having
committed a Schedule 1 offence and as such , he could l awfully arrest the
respondent without a warrant in terms of section 40(1)(b) 3of the CPA.
[8] Only the respondent and the arresting officer testified at the trial. Even
though the appellant bore the onus to prove the lawfulness of the arrest, the
respondent was the first to adduce evidence. He denied the assault alleged by
Ms Mini. His testimony centred on his request to the arresting officer to be
‘merciful with him’; the request to be taken to court on the same day ; the poor
over-crowded conditions in the cells ; and his concern about his son who he
claimed was left without adult care.
[9] The evidence by W/O Erasmus was largely confined to those issues raised
in the respondent ’s evidence. He testified that t he seriousness of the offence
prompted the decision to arrest and detain the respondent. He feared that given
the appellant’s proximity to the complainant’s place of abode, ‘something might
happen again’ . He confirmed that when he arrested the respondent , certain
witness statements were still outstanding, as well as the J88 medical report on
1 Section 40(1)(q) provides:
‘(1) A peace officer may without warrant arrest any person—
. . .
(q) who is reasonably suspected of having committed an act of domestic violence as contemplated in section (1)
of the Domestic Violence Act, 1998 which constitutes an offence in respect of which violence is an element.’
2 Section 3 states that:
‘(1) A peace officer who attends the scene of an incident of domestic violence, may without a warrant, arrest any
respondent who such peace officer reasonably suspects of having committed an act of domestic violence which
constitutes an offence in terms of any law.’
3 Section 40(1)(b) provides:
‘(1) A peace officer may without warrant arrest any person—
. . .
(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence
of escaping from lawful custody.’
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which the injuries sustained by the complainant were recorded. He disputed that
the respondent’s son was left without adult care. He insisted that s pecial
arrangements were made with a neighbour before the arrest to look after him. He
was not present in court when the respondent was released.
[10] The trial court found that the arrest was lawful in terms of s 40(1)(q), and
that it was based upon a reasonable suspicion that the respondent had committed
an act of domestic violence as contemplated by s 1 of the DVA4. It found on the
probabilities that the respondent was informed of his constitutional rights as he
had signed the notice of rights provided to him by the arresting officer. The thrust
of the appeal to the high court was directed at the jurisdictional findings under
s 40(1)(q). The respondent argued that the fact that the arrest occurred 12 days
after the incident, belied the reasons alleged for the arrest. He submitted that there
had been no further incidents of domestic violence reported , even though the
respondent lived near the complainant. These issues were raised for the first time
during the appeal.
[11] The high court confirmed the decision by the trial court that the appellant
met the jurisdictional requirements to arrest the respondent. It held, however, that
the trial court ‘failed to address the issue of discretion at all [and this] failure
caused the trial court to reach a decision which, in the result, could not reasonably
have been made by a court properly directing itself to all the relevant facts and
principles.’
[12] The appeal turns on the narrow question whether the high court was correct
to mero motu determine the question of the lawful exercise of a discretion to
4 The DVA provides an expanded definition of domestic violence which includes but is not limited to physical,
sexual, emotional, and psychological abuse but includes economic and spiritual abuse, intimidation and
harassment, coercive and controlling behaviour amongst others
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arrest. The respondent contended that a discretion to arrest is inherent to the
question of the lawfulness of the arrest. A court on appeal can consider the issue
if it was canvassed fully at the trial. The complaint by the appellant is that the
issue was not pleaded. Its attention was directed to one case at the trial and
thereafter, the respondent impermissibly attempted to canvass a different case on
appeal to the high court.5
[13] It is trite that a party is bound by his or her pleadings and ordinarily, he or
she will not be allowed to raise a different or fresh case without a due amendment.
A court is equally bound by those pleadings and should not pronounce upon any
claim or defence not made in the pleadings by the parties.6 A court may relax this
rule where the issue involves a question of law which emerges fully from the
evidence or is apparent from the papers . This Court, in Minister of Safety and
Security v Slabbert,7 held that:
‘There are, however, circumstances in which a party may be allowed to rely on an issue which
was not covered by the pleadings. This occurs where the issue in question has been canvassed
fully by both sides at the trial.’8
[14] The case pleaded by the respondent centered on whether the arresting
officer formed a reasonable suspicion which would entitle W/O Erasmus to arrest
him.9 It was premised on a denial that he committed a Schedule 1 offence. The
respondent did not place the improper exercise of the discretion to arrest him in
issue. He raised the issue in respect of his detention. During cross-examination of
5 Kali v Incorporated General Insurances Ltd 1976 (2) SA 179 (D) at 182A.
6 Jowell v Bramwell -Jones 1998 (1) SA 836 (W) at 898E-J citing from Jacob and Goldrein on Pleadings:
Principles and Practice at 8–9.
7 Minister of Safety and Security v Slabbert [2009] ZASCA 163; [2010] 2 All SA 474 (SCA).
8 Ibid para 12. See also Fischer and Another v Ramahlele and Others [2014] ZASCA 88; 2014 (4) SA 614 (SCA);
[2014] 3 All SA 395 (SCA) para 15.
9 Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) at 107 C-H. In National Director of
Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) ; [2009] 2 All SA 243 (SCA) this Court
explained the nature of civil litigation in our adversarial system . It held that it is for the parties, either in the
pleadings or affidavits, which serve the function of both pleadings and evidence, to set out and define the nature
of their dispute and it is for the Court to adjudicate upon those issues.
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the respondent, counsel for the appellant asked why the respondent believed the
arrest was unlawful. This might have brought the issue of the exercise of a
discretion to arrest to the fore, despite the pleadings. However , the respondent’s
counsel objected to the question on the grounds that the respondent was a lay
person, and that issue was a question of law.
[15] It is not apparent from the high court judgment what aspects of the evidence
led by both parties it accepted or rejected and the reasons for that choice . The
reason for the conclusion that W/O Erasmus did not exercise his discretion is not
discernible. Nowhere did the high court deal with the findings of the trial court
that Erasmus was correct in taking into account the seriousness of the offence
committed by the respondent. Nor did it discuss the fact that the appellant pleaded
justification for the arrest, not only under s 40(1)(b) but also under s 40(1)(q).
This would have assisted this Court to decide whether or not the order of the high
court is correct.10 Given this, a fuller treatment of the facts is necessary.11
[16] An arrest without a warrant is prima facie wrongful. Consequently, it was
incumbent upon the appellant to justify its lawfulness.12 The submission by the
respondent that the discretion to arrest is inherent to the determination of the
lawfulness or otherwise of the arrest conflates the jurisdictional requirements to
carry out a warrantless arrest, with the exercise of a discretion which arises once
those jurisdictional facts are established. It also ignores the incidence of the onus.
In Minister of Safety and Security v Sekhoto and Another13 (Sekhoto), this Court
held that:
10 Mphahlele v First National Bank of South Africa 1999 (2) SA 667 (CC); 1999 (3) BCLR 253 (CC) para 12.
11 Knoop NO v Gupta 2021 (3) SA 88 (SCA) para 13.
12 In Minister of Law and Order v Hurley [1986] 2 All SA 428 (A); 1986 (3) SA 568 (A) the Court stated the
following at 589E-F: ‘An arrest constitutes an interference with the liberty of the individual concerned, and it
therefore seems to be fair and just to require that the person who arrested or caused the arrest of another person
should bear the onus of proving that his action was justified in law’.
13 Minister of Safety and Security v Sekhoto and Another [2010] ZASCA 141; [2011] 2 All SA 157 (SCA); 2011
(5) SA 367 (SCA) (Sekhoto). The conflation identified by the court was in Louw and Another v Minister of Safety
and Security and Others 2006 (2) SACR 178 (T).
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‘A party who alleges that a constitutional right has been infringed bears the onus. The general
rule is also that a party who attacks the exercise of discretion where the jurisdictional facts are
present bears the onus of proof.’14
[17] The high court similarly conflated the onus to prove the jurisdictional
requirements to arrest (which rested on the appellant) and the overall onus to
prove other elements of the claim , including improper exercise of discretion to
arrest (which rested on the respondent). Once the high court found that the
jurisdictional requirements to arrest the respondent were met, the appellant
discharged the onus, which rested on it to justify the arrest. This was dispositive
of the case pleaded by the respondent. The high court, however, despite finding
that the trial court was correct regarding the jurisdictional facts, held that it ought
to have considered whether the discretion was properly exerci sed. The
implication of the decision by the high court is that the onus to prove the proper
exercise of the discretion to arrest rested with the appellant rather than the
respondent. This is contrary to the decision in Sekhoto. The high court erred on
this score.
[18] W/O Erasmus was criticised for the 12 -day delay in effecting the arrest
even though on the objective evidence, he acted timeously after receiving the
docket from Kwazakhele. The facts to account for the delay were not within his
knowledge. The danger of a litigation by ‘ambush’ and the prejudice that could
arise from reasoning pertinent questions backwards, is manifest. Whether or not
the discretion was properly exercised cannot be judged based on facts not known
at the time, against the standard of what is best in hindsight, based on a standard
of perfection.15 If it was intended to found the case upon an alleged improper
exercise of a discretion to arrest, then that ought to have been pleaded
14 Sekhoto ibid para 49.
15 Barnard v Minister of Police and Another [2019] 3 All SA 481 (ECG) para 10 and Sekhoto fn 8 above para 39.
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unambiguously. The high court would have determined the issue based on
established facts.
[19] We were urged to determine the issue afresh should we find there was a
misdirection by the high court. T he submission was that there had been no
subsequent acts of violence post the incident . It was further contended that
notwithstanding the close living a rrangements, there was no imminent harm or
risk of harm justifying an arrest and all these factors pointed to an improper reason
for the arrest . The submission is unsound and implies that the respondent must
have exhibited a recurrent pattern of violent behaviour in order to effect the arrest.
Furthermore, it misses an important connection between an arrest made pursuant
to s 40(1)(b) and one effected under s 40(1)(q) of the CPA . An arrest made in
terms of s 40(1)(q) explicitly refers to ‘an offence in respect of which violence is
an element’ while an arrest made pursuant to s 40(1)(b) requires that there be
allegations of a commission of a schedule 1 offence . (Emphasis added .) The
jurisdictional requirements for arrest are the same. A crucial difference is that,
unlike an arrest under s 40(1)(b), the degree or extent of the violence referred to
in s 40(1)(q) is not bounded, justifiably so, to afford the maximum protection
intended by DVA. The offence for which the respondent was arrested fell under
both ss 40(1)(b) and 40 (1)(q).
[20] For the reasons above, the high court conflated the onus and pertinent
questions about the lawful exercise of the discretion to arrest the respondent ,
which were neither pleaded nor fully canvassed at the trial. The high court
therefore erred.
[21] What remains is the issue of costs which must rightly follow the result. The
appellant contended that if successful, we should grant it the costs of two counsel.
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I am not persuaded. The matter is not complex to justify such an award, and the
appellant did not advance any cogent reasons for doing so.
[22] In the result, I make the following order:
1 The appeal is upheld with costs.
2 The order of the high court is set aside and replaced with the following
order:
‘The appeal is dismissed with costs.’
_________________________
N T Y SIWENDU
ACTING JUDGE OF APPEAL
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Appearances
For the appellant: V Madokwe and M M Ndamase
The State Attorney, Gqeberha
The State Attorney, Bloemfontein
For the respondents: M du Toit
Peter McKenzie Attorneys, Gqeberha
Webbers Attorneys, Bloemfontein.