Likanga v Minister of Police (2022/17032) [2025] ZAGPJHC 652 (30 June 2025)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

CASE NUMBER: 2022/17032

1.REPORTABLE: NO

2.OF INTEREST TO OTHER JUDGES: NO

3.REVISED: NO

30 JUNE 2025

Judge Dippenaar

In the matter between:

ADAM LIKANGA

PLAINTIFF

and

THE MINISTER OF POLICE

DEFENDANT

JUDGMENT

Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives by e-mail and uploading it

onto the electronic platform. The date and time for hand-down is deemed to be 10h00 on the 30th of June 2025.

DIPPENAAR J:

[1] The plaintiff, Mr Likanga, seeks delictual damages in an amount of R600 000 for his unlawful arrest and detention for the period 27 to 31 January 2022 by members of the South African Police Service (‘SAPS’) stationed at the Vanderbijlpark Police station. During the course of the trial an amendment was granted to the particulars of claim to reflect that the plaintiff was detained at the Boipatong police station in Vanderbijlpark. The damages allegedly suffered were R100 000 for humiliation, discomfort and unlawful arrest respectively and R300 000 for unlawful detention.[1]

[2] The Defendant, the Minister of Police, resisted the claim on the basis of s 40(1)(a) and (f) of the Criminal Procedure Act 51 of 1977 (‘CPA’) read with s 67(1)(a) and (b) of the Police Services Act 68 of 1995. Its case was that the plaintiff was lawfully arrested and detained on a charge of interference and obstructing police officers in the execution of their duties.

[3] It is trite that the onus rests on the defendant to justify an arrest and to prove the lawfulness of the arrest and detention on a balance of probabilities.[2] The defendant accepted the duty to begin.

[4] The defendant presented the evidence of three witnesses: sergeant Sikhipha, the arresting officer; sergeant Rantsieng the detective who formally charged the plaintiff on 29 January 2022 and sergeant Buthelezi, who was on duty at the Boipatong police cells on 29 January 2022. The plaintiff, Mr Likanga also testified. In various material respects the versions of the parties’ respective witnesses was mutually destructive.

[5] Stellenbosch Farmers’ Winery [3] sets out the principles pertaining to the evaluation of evidence, and it is unnecessary to repeat them. Ultimately:

‘To come to a conclusion in the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities.’

There are also subsidiary considerations which must be taken into account. Although not all of them are set out in any detail herein, they have been taken into consideration.

[6] The plaintiff’s evidence was unsatisfactory in various respects. There is merit in the criticism levied by the defendant in argument that his responses to questions put in cross examination were in various instances evasive. During evidence he expressly disavowed any interference with the police officers in the execution of their duties. The probabilities overwhelmingly favour the opposite conclusion. He further alluded to being assaulted, an issue not pleaded nor corroborated by any evidence.

[7] In various respects, the plaintiff’s case as pleaded was not borne out by the evidence presented. By way of example, it was expressly pleaded that the arresting officer did not exercise his discretion when he decided to arrest the plaintiff. In the alternative he pleaded that if his arrest was justified, it was unlawful as the arresting officer knew that the purpose of the arrest was not to take the plaintiff to court, alternatively, that he would not be prosecuted. The evidence did not support this and the issue was not even raised during cross examination.

[8] It was further pleaded that the plaintiff was never informed that he was entitled to apply for bail and was never asked if he wanted to apply for bail. He pleaded that he has a fixed address and is not a flight risk nor a danger to himself or others. It was pleaded that the public prosecutor, senior officer and investigating officer knew that the State would not prosecute the case. No evidence was presented on the issue, nor was it raised in cross examination or in argument. Various other issues were also raised in respect of which no evidence was led including certain of the averments in paragraphs 8, 9 and 10 of the particulars of claim, which it is not necessary to repeat here.

[9] These factors detract from the credibility and reliability of the plaintiff as a witness. More importantly, in various material respects, the probabilities do not favour his version.

[10] Ultimately, the plaintiff was the sole witness in support of his case. Although it was throughout indicated that Mrs Linki Madiba would be called as a witness, the court was advised on the morning she was due to testify that she had declined to do so as ‘she felt intimidated’. Mrs Madiba was an important witness as she was present during the events which transpired and resulted in the plaintiff’s arrest. During cross examination of the defendant’s witnesses, her version was put to the witnesses. Such version would have corroborated the version of the plaintiff. In argument, the defendant contended that an adverse inference should be drawn against the plaintiff for his failure to call Mrs Madiba as a witness.

[11] As stated in Galante[4], the failure to call the available factual witnesses, would ordinarily give rise to the inference that the evidence that such witness could give would be to the detriment of the party’s case. A failure to testify by a party who is available and whose actions lie at the core of the dispute is a factor to take into account, but in doing so regard must be had to the strength or otherwise of the case a party has to meet.

[12] Any failure to call any witness of fact is part of the inferential process which must be viewed in the context of the case as a whole. It is apposite to refer to Koukoudis[5]: wherein the Supreme Court of Appeal held:

‘…Failure to testify by a party who is available and whose actions lie at the core of the dispute is, of course, a factor to be taken into account, but in doing so, regard must be had to the strength or otherwise of the case that party has to meet. Whilst less evidence may well suffice to establish a prima facie case where the issue at stake is peculiarly within the knowledge of the opposing party as is here the case, that cannot convert a case founded on pure speculation and faulty inferential reasoning into a prima facie case.’

[13] The terse explanation proffered from the bar when Mrs Madiba was due to testify that she was ‘intimidated’ offers no proper excuse for her failure to do so. Significantly, her version was put to the plaintiff’s witnesses during cross examination. Taking all the relevant factors into account, I am persuaded that an adverse inference should be drawn against the plaintiff on this issue.

[14] As held in Oosthuizen: [6]

‘…an adverse inference must be drawn if a party fails to testify or produce evidence of a witness who is available and able to elucidate

the facts, as this failure needs naturally to the inference that he fears that such evidence will expose facts unfavourable to him, or even damage his case’.

[15] It is trite that a court must base its conclusions on a consideration of all the evidence, which must take the totality of the evidence into account.[7] The drawing of an inference requires properly established objective facts.[8]

The facts and evidence

[16] The genesis of the action lies in the service of a protection order in proceedings between the complainant, a Mr Moyo and the respondent in those proceedings, one Mrs Linki Madiba. Members of the SAPS were dispatched to serve the protection order on Mrs Madiba. Whilst engaging with Mrs Madiba, the plaintiff, who was resident in the same block of flats as Mr and Mrs Madiba, intervened. Although there is a dispute regarding exactly what transpired, it was undisputed that the protection order could ultimately not be served due to the intervention of the plaintiff. The SAPS members left the premises and returned to the Vanderbijlpark police station with the complainant to complete an affidavit regarding why the order could not be served. The plaintiff, accompanied by Mrs Madiba and her husband, also went to the police station. There the plaintiff was arrested. There is also a factual dispute regarding the circumstances under which the arrest occurred.

[17] It was common cause that the plaintiff was arrested without a warrant during the evening of Thursday, 27 January 2022 at approximately 21h50 at the Vanderbijlpark police station. The plaintiff was arrested by police officers acting within the course and scope of their employment with the defendant. The plaintiff was arrested at approximately 21h30 and detained at approximately 21h50 as set out in the SAPS 14 form. The plaintiff was provided with a copy of his notice of rights, which he signed on 27 January 2022 at approximately 21h47. The plaintiff was transported to the cells at the Boipatong police station as the cells at the Vanderbijlpark

police station were under construction. The plaintiff was formally charged on Saturday, 29 January 2022 with obstructing police officers in the execution of their duties. The plaintiff’s warning statement was taken on 29 January 2022 at about 10h25. He elected to remain silent and speak in court. His address was verified on 30 January 2022 at about 11h00. His address is in the same complex where the SAPS members went to serve a protection order on Mrs Madiba. The plaintiff remained incarcerated until he was taken to the Vanderbijlpark magistrates court on the morning of Monday, 31 January 2022. The plaintiff was released without having appeared in court at approximately 13h00 after the prosecutor declined to prosecute him.

[18] The plaintiff testified that at the time of his arrest he was not employed. He is presently self-employed and is 49 years of age. He testified that he has a grade 8 education, albeit that it was averred in his heads of argument that he has a grade 12 education. He had been resident at 28 Crompton Street, Vanderbijlpark for some two years at the time of the arrest. Mr and Mrs Madiba are his neighbours. According to the plaintiff he was simply trying to assist Mrs Madiba when he was arrested for interference with police duties. He wanted to ensure that Mrs Madiba knew what she was signing and that the document was read to her.

[19] The plaintiff’s version was that on the day of his arrest he was sitting outside the flats when he saw two police officers carrying a document going to Mrs Madiba’s flat. He noticed a disagreement between them and approached. He heard Mrs Madiba refusing to sign a document. He told her not to sign the document unless it was read to her. The policemen left. He advised Mrs Madiba and her husband to go to the police station. He took them there in his vehicle. He was not arrested at the flats where the

altercation ensued but was arrested on his arrival at the police station as he was alighting from his vehicle. He was grabbed by his belt by the arresting officer and was pushed into the police van. According to the plaintiff the arresting officer never explained or read his rights to him. He was ordered to sign the notice of rights and was given a copy. Bail was never explained to him. Had he been told of bail, he would have applied for it. The conditions in the cells were appalling. The cell was dirty as was the blanket and sponge mattress provided to him. The toilet in the cell was not private and was dirty and not working. The shower similarly did not work and there was no water in the cell. There were between ten and thirteen people in the cell. Food was provided three times per day, but was not well prepared. He was taken to court on Monday and was released at about 13h00 on 31 January 2022 without appearing in court. According to the plaintiff, his arrest and detention traumatised him and it was ‘as if he was assaulted’.

[20] According to sergeant Sikhipha, he and another officer were tasked to serve a protection order on Mrs Linki Madiba on 27 January 2022. They attended a complex of flats on Crompton Road, Vanderbijlpark to do so. They were accompanied by the complainant. They explained the order to Mrs Madiba, who was rude and refused to sign for the document. The plaintiff interfered with this task and advised Ms Madiba not to accept service of the order. He also tried to grab the document and hurled insults at the police officers. At the scene, sergeant Sikhipa exercised his discretion not to arrest the plaintiff as there were other people present who supported the plaintiff and the situation appeared volatile. In cross examination he was confronted with the version proffered in a statement he had made in relation to the matter that he attempted to arrest the plaintiff at the flats. In response, he stated that he could not successfully arrest the plaintiff due to the volatile situation. That discrepancy is not material, given that the plaintiff was ultimately not arrested at that time. They returned to the police station to complete an affidavit by the complainant explaining why the protection order could not be served.

[21] Whilst busy with this task, the plaintiff, Ms Madiba and another gentleman, later identified as Mrs Madiba’s husband, arrived at the police station where the plaintiff again caused a disruption in the same vein as earlier. The plaintiff tried to influence Mrs Madiba by telling her the document was a fake and the policemen were being paid. Incendiary language was used. Despite numerous warnings to the plaintiff not to interfere, the plaintiff persisted in his conduct. Sergeant Sikhipha then exercised his discretion and arrested the plaintiff. In cross examination he testified that he would not have arrested the plaintiff if he had not come to the police station and again interfered with the execution of police duties.

[22] He testified that he informed the plaintiff of his constitutional rights as contained in the SAP14 form. He did not further discuss the issue of the granting of bail with the plaintiff as that was the task of the detective appointed to the matter. He read the notice of rights (SAP 14) aloud and together with the plaintiff who then signed it and was handed a copy thereof. He did not go beyond what was stated on the SAP 14 form.

[23] Sergeant Rantsieng was the detective assigned to the case on Saturday 29 January 2022. He has been in the police service for 20 years. He formally charged the plaintiff on 29 January 2022 after he received the docket. He testified that he warned the plaintiff of his constitutional rights at the time he formally charged the plaintiff. He completed the warning statement in which the plaintiff indicated that he declined to make statement and would remain silent and speak at court. According to sergeant Rantsieng he explained everything to the plaintiff including bail. Certain portions of the documentation requiring a deletion were not completed. He obtained information from the plaintiff to complete the form and disputes the plaintiff’s version on the issue. The plaintiff’s address was verified on Sunday 30 January 2022 by another police official.

[24] According to sergeant Rantsieng, the procedure is that the arresting officer takes the docket to the data services department where it is captured on the system. Thereafter a detective is allocated to the matter. He was thus allocated and received the docket on Saturday 29 January 2022. As part of his tasks, he must process the plaintiff’s address verification and previous convictions. As the plaintiff was a foreign national, he also had to check the plaintiff’s paperwork with the Department of Home Affairs to determine whether he was in South Africa legally or not.

[25] Under cross examination he stated that he verbally explained the right to apply for bail to the plaintiff. According to him, the plaintiff did not say anything about applying for bail. Therefor he did not write it down. According to sergeant Rantsieng, he could not consider granting bail because certain issues were outstanding, being to check the plaintiff’s residential address and previous convictions and his status with Home Affairs. Therefore, he could not and did not consider bail and couldn’t exercise any discretion whether to grant it or not.

[26] Sergeant Mxolisi Buthelezi testified that he was on cell duty at the Boipatong police station on Saturday 29 January 2022. He was not on duty on the other relevant dates. He has 15 years’ experience in the SAPS. He testified that the cells were clean and there was water in the cells. The showers and toilet were functioning. If they were not, an entry would have been made in the occurrence book and the arrestees would have been transferred to the cells at the Sebokeng police station. The arrestees were given

three meals a day. He did not taste the food, but considered the food edible. No complaints were received about the food or conditions of the cells, which would have been entered into the occurrence book (‘OB book’). If a toilet was blocked or had no water in a particular cell, the arrestees would be moved to another cell. Cleaners are employed to clean the cells. According to sergeant Buthelezi, the cells were inspected every hour. There were however no entries in the OB book supporting that assertion. The only entry reflecting an inspection was made at 12h00. He took food to the arrestees three times a day. He could not remember all the details as it was a long time ago and relied on the OB book. There were no entries reflecting water or blockage problems. He thus disputed that there was a blocked toilet and a lack of water in the toilet and shower.

The issues

[27] According to the parties, the issues which require determination are: First, the lawfulness of the plaintiff’s arrest including whether the jurisdictional requirements of s 40(1)(a) and (f) of the CPA were met and whether the arresting officer exercised his discretion in good faith, rationally and not arbitrarily. Second, whether the plaintiff’s detention was lawful, including whether bail was considered and the plaintiff’s rights in relation thereto explained to him. Aspects requiring consideration are if bail was not considered, the reasons therefor, whether alternatives were considered to bring the plaintiff before a court of law and whether any discretion was exercised to release the plaintiff prior to his appearance in court. Further issues arose

relevant to the quantification of the plaintiff’s claim, being the conditions in the cells and the food provided to the plaintiff

during his incarceration.

[28] It is apposite to commence with the relevant statutory provisions. In relevant part, s 40 (1)(a) and (f) of the CPA provides:

‘(1) A peace officer may without a warrant arrest any person:

(a) who commits or attempts to commit any offence in his presence; …

(f) who is found at any place by night in circumstances which afford reasonable grounds for believing that such person has committed or is about to commit an offence.’

[29] In argument, the defendant disavowed reliance on s 40(1)(f). It argued that the reference in the plea should have been to s 40(1)(j). There was however no formal amendment to introduce such section and the matter will be determined on the basis of the case as pleaded under s 40(1)(a).

[30] Section 67 of the Police Services Act in relevant part provides:

‘(1) Any person who:

(a) resists or willfully hinders or obstructs a member in the exercise of his or her powers or the performance of his or her duties or functions, or, in the exercise of his or her powers or the performance of his or her duties or functions by a member willfully interferes with the member or his or her uniform or equipment of any part thereof; or

(b) In order to compel a member to perform or to abstain from performing any act in respect of the exercise of his or her duties or the performance of his or her duties or functions…..

shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.’

[31] It was undisputed that the arrestor, Sergeant Sikhipha is a peace officer, that the conduct leading to the plaintiff’s arrest occurred in his presence and that the offence for which the plaintiff was arrested in an offence in respect of which he is authorised to arrest without a warrant. In issue is whether the plaintiff’s arrest and detention was unlawful and whether Sergeant Sikhipha exercised his discretion properly in arresting the plaintiff.

[32] The plaintiff’s version pertaining to the events which led up to his arrest is improbable. Where his version is in conflict with that of sergeant Sikhipha, the latter’s version is to be preferred. It appears probable that the plaintiff was willfully interfering with the execution of police duties as envisaged by s 67(1)(a) of the Police Services Act.

[33] On the plaintiff’s own evidence, he intervened in a situation that had nothing to do with him. It was undisputed that the police officers were attempting to serve a protection order. His excuse that he was attempting to assist Mrs Madiba, does not pass muster. She was not alone, but was in the presence of her husband. His version that he was arrested as he alighted from the vehicle, is also improbable. It was undisputed that it was dark. No evidence was presented that the police officers knew his vehicle and no reason was given why they would have anticipated that after the altercation at the flat, the plaintiff would have gone to the police station, where they waited to arrest him. How sergeant Sikhipha would have been aware what vehicle he was driving or that he would be waiting in the parking lot of the police station to arrest him, was never explained and renders his version improbable.

[34] The evidence presented by sergeant Sikhipa, is more probable. Even on the undisputed facts, it is probable that the plaintiff interfered with the execution of their duties by the police officers. There was no reason for him to go to the police station. I am persuaded that there were sufficient grounds for the arrest. It cannot be concluded the arrest was unlawful. The contrary must be concluded.[9]

[35] I am further persuaded that the jurisdictional facts necessary for an arrest under s 40(1)(a) of the Act have been established. It was undisputed that the arrestor was a peace officer.[10] The evidence further established that an offence was committed in the presence of the said peace officer. It is trite that once the jurisdictional requirements are satisfied the peace officer has a discretion as to whether or not to exercise his powers of arrest.[11]

[36] The grounds on which the exercise of such discretion can be questioned are narrowly circumscribed.[12] The decision to arrest must be based on the intention to bring the arrested person to justice. An arrest will be unlawful if the

exercise of the discretion in question would be unlawful if the arrestor knowingly invokes the power to arrest for a purpose not

contemplated by the legislature. A distinction must be drawn between the object of the arrest and the arrestor’s motive. There was no evidence that the arresting officer was actioned by an improper motive, nor was that suggested to him in cross examination. It can also not be concluded that the arresting officer did not apply his mind to the matter or did not exercise any discretion at all. It is sufficient if there was a due and honest exercise of discretion, even if it is considered as inequitable or wrong[13].

[37] Given the facts, the exercise of sergeant’s Sikhipha’s discretion to arrest the plaintiff was rational in the face of the plaintiff’s ongoing interference. There was no reason for the plaintiff to go to the police station or alight from his vehicle and accompany the Madibas. He was interfering in matters in which he should have played no role and in which he had no legitimate interest. There was further no basis for the plaintiff to ignore the cautions of sergeant Sikhipha and persist with his

interference.

[38] A party who attacks the exercise of discretion where the jurisdictional facts are present bears the onus of proof. That is the position

whether or not the right to freedom is compromised.[14] There is further no rule of law that requires the milder method of bringing a person into court be used whenever it would be equally

effective.[15] The relevant factors are enunciated in Olivier [16] and it is not necessary to repeat them. Arrest should be the last resort and be confined to serious cases. But where a peace officer

does effect a lawful arrest for what may not be considered to be a serious offence, the arrest or subsequent detention does not become unlawful merely because a summons or notice to appear in court, would have been equally effective in ensuring his attendance at court.[17]

[39] Considering the evidence, I conclude that sergeant Sikhipa properly and rationally exercised his discretion and that the plaintiff’s

arrest was lawful. It cannot be concluded that the discretion to arrest was not exercised in good faith or rationally or that it was arbitrary.[18] How sergeant Sikhipa exercised his discretion cannot be faulted in light of the prevailing factual circumstances. Sergeant Sikhipha only arrested the plaintiff when he pursued his disruptive activities at the police station and after he had warned the plaintiff of the potential consequences of his actions. The plaintiff persisted in his course of conduct. The first issue is thus determined in favour of the defendant.

[40] A lawful arrest does not however necessarily render the full period of the subsequent detention lawful.[19] The offence in respect of which the plaintiff was arrested qualified him to be considered for police bail.

[41] Regarding the second issue and the lawfulness of the plaintiff’s subsequent detention, the plaintiff was presented to court on Monday 30 January 2022 after his arrest on Thursday night, 27 January 2022. It remains unclear why he was not taken to the police station on Friday the 28th January 2022. The only explanation proffered by the defendant was that the plaintiff was only formally charged on Saturday, when the court was not open and he was taken to court on the first available court day thereafter. The evidence of sergeant Rantsieng was that bail could not be considered before the outstanding information was verified, including the verification of the plaintiff’s

address, prior convictions and status with Home Affairs, given that he was a foreign national.

[42] On the probabilities, I am persuaded that the notice of rights was read to the plaintiff before he signed the document by sergeant Sikhipa. The plaintiff, by his own earlier conduct and his version that he was assisting Mrs Madiba to ensure she knew what was in the protection order before signing it, was clearly well aware of the need to understand a document before signing it. I take into account that, as exhibited during cross examination, the plaintiff had difficulty in reading a portion of the particulars of claim. It is improbable that he would have signed the document if the contents of the notice of rights had not been explained to him. The notice of rights (SAP14), refers to bail in broad terms. It does not refer to all the options in any detail.

[43] On sergeant Rantsieng’s version, he explained bail to the plaintiff when he was formally charged and signed his witness statement, wherein he stated that he would remain silent and speak in court. Ultimately, it was his version that bail could not be considered as the various issues particularised earlier remained outstanding and he did not do so. It was not disputed that the plaintiff did not request bail. From the documentation discovered as part of the police docket, it appears that the plaintiff’s list of prior convictions was only obtained some days after his release on 3 February 2022. That issue was not addressed in argument.

It was undisputed that the plaintiff’s address was verified the following day, on 30 January 2022. There was no written confirmation

placed on record by sergeant Rantsieng that bail was explained to the plaintiff. On the probabilities, the version of sergeant Rantsieng is to be preferred over that of the plaintiff. He is an experienced police officer and remained emphatic that bail was explained when cross examined on the issue.

[44] The plaintiff disputed that his right to bail was ever explained to him. On his version, he had funds available to pay bail, although no amounts were mentioned and would have done so. He did not explain the source of any such funds, given that he was unemployed at the time.

[45] Section 50(1) of the CPA provides in relevant part:

‘(b) A person who is in detention as contemplated in paragraph (a) shall, as soon as reasonably possible, be informed of his or her right to institute bail proceedings.

(c)Subject to paragraph (d), if such arrested person is not released by reason that – (i) no charge is to be brought against him or her; or (ii) bail is not granted to him or her in terms of section 59 or 59A, he or she shall be brought before a lower court as soon as reasonably possible, but not later than 48 hours after the arrest.

(d)If the period of 48 hours expires-(i) outside ordinary court hours or on a day which is not an ordinary court day, the accused shall be brought before a lower court not later than the end of the first court day; ’.[20]

[46] In terms of s 59, which relates to bail before a first appearance of an accused in a lower court:

‘(1)(a) An accused who is in custody in respect of any offence, other than….[21] may, before his or her first appearance in a lower court, be released on bail in respect of such offence by any police official of or above the rank of non-commissioned officer, in consultation with the police official charged with the investigation, if the accused deposits at the police station the sum of money determined by such police official’.

[47] The plaintiff argued, with reliance on Sethlapelo, [22] that if the jurisdictional facts for the consideration of police bail in terms of s 59(1)(a) of the CPA are present, as in the present instance, the SAPS has a constitutional duty to ascertain as soon as reasonably possible after the arrest whether the arrestee wishes bail to be considered. It was submitted that if the arrestee wishes to apply for police bail, the senior police official, in consultation with the investigating officer must consider bail as a matter of urgency and that there was a duty on them to do so, even if the arrestee does not request to apply for bail. It was submitted that a failure to inform the arrestee of his constitutional right to apply for bail or a failure to consider bail or any unreasonable delay in the process could, depending on the circumstances of the case, render the arrestee’s further detention until his first appearance in court unlawful.

[48] I am not persuaded that Sethlapelo avails the plaintiff. That case was determined in the context of s 59A of the CPA, which finds no application in the present case. In Sethlapelo, reliance was placed on various standing instructions which do not feature in the present instance. In my view, it is distinguishable on this basis. Moreover, the facts are also distinguishable.

[49] The plaintiff further relied on the judgment of the court a quo in Kulati[23] in arguing that there was a duty on the police officials to consider bail and to raise the various available options with the plaintiff,

even if he did not request bail. There, it was held that the provisions of s 59A of the CPA places a duty on the SAPS to facilitate the release of the respondent on bail in the absence of a request for bail from him.

[50] Kulati was however overturned on appeal.[24] On appeal, in a judgment that also took account of the provisions of s 50(1)(a) of the CPA as analysed in Minister of Police v Fry[25] and National Commissioner of Police v Coetzee, [26] it was held that there was no duty ex facie the wording of s 50(1)(a) or s 59A of the CPA placed on a police officer to consider the release on bail of a detainee unless there is a request in this respect. Sethlapelo was referred to, but not followed. Kulati thus does not offer support for the propositions advanced by the plaintiff.

[51] I am in respectful agreement with the judgment and the reasoning adopted by the Full Court in Kulati.[27] By parity of reasoning, the wording of s 59 similarly does not place any express obligation on police officials to consider bail if it is not requested by an arrestee. The section does not do so and a court must guard against the judicial imposition of burdensome obligations on police officials.[28] There is however a need to inform an arrestee of his entitlement to apply for bail and a prompt response must be provided to any such request from an arrestee. The evidence established that sergeant Rantsieng did so. The notice of rights further informed the plaintiff of his rights.

[52] The plaintiff’s reliance on Scheepers [29] also does not avail him. It deals extensively with certain standing orders which do not form part of the evidence in this matter. It is also factually distinguishable.

[53] I am further not persuaded that the plaintiff’s reliance on Diljan [30] assists him. There a defence was raised under s 40(1)(b) and the facts illustrated that the arresting officers exercised no discretion in the decision whether to arrest or not as they were under the impression that it was their obligation to arrest once it was reasonably suspected that she committed a schedule 1 offence. The present facts, even in the context of a discretion to consider bail or not, are distinguishable. In the present instance, it is clear that sergeant Sikhaphi was aware of his discretion in relation to the arrest of the plaintiff.

[54] Considering the particular circumstances of the case, it cannot be concluded that there was an unreasonable delay in the process or that the failure to consider bail whilst the investigations were ongoing was unreasonable or rendered the plaintiff’s detention until he was taken to court unlawful. On the probabilities, the plaintiff was informed of his rights in relation to bail. In the present instance, there was no request for bail. The plaintiff’s version that none of his constitutional rights were explained to him and that he simply signed the notice of rights without understanding it, is improbable. It is also directly controverted by the evidence of both sergeant Sikhaphi and sergeant Rantsieng.

[55] Given the relevant time frames, and that the plaintiff was only formally charged over the weekend and on 29 January 2022, I conclude that his detention was lawful. It follows that the plaintiff’s claim must fail. That finding is dispositive and it is not necessary to consider the quantification of the plaintiff’s claim and the issues in relation thereto.

[56] There is no reason to deviate from the principle that costs follow the result. The parties agreed at their pre-trial conference that the matter should proceed in the high court.[31] Moreover, the case concerns the deprivation of a person’s freedom and a violation of important constitutional rights. The

plaintiff was justified in approaching the high court.[32] Considering all the relevant factors, costs on scale B would be appropriate.

[57] I grant the following order:

[1] The plaintiff’s claim is dismissed with costs on scale B.

EF DIPPENAAR

JUDGE OF THE HIGH COURT

GAUTENG JOHANNESBURG

HEARING

DATE OF HEARING: 7-9 MAY 2025

DATE OF JUDGMEN: 30 JUNE 2025

APPEARANCES

PLAINTIFF’S COUNSEL: Adv. L. Swart

PLAINTIFF’S ATTORNEYS: JJ Geldenhuys Attorneys

DEFENDANT’S COUNSEL: Adv. D. Lebenya

DEFENDANT’S ATTORNEYS: State Attorney Johannesburg

[1] In his letter of demand under s 3 of Act 40 of 2002, the plaintiff demanded damages in an amount of R200 000.

[2] Minister of Safety and Security v Sekhoto (131/10) [2010] ZASCA 141 (19 November 2010) para 7; Minister of Safety and Security v Tyulu (327/08) [2009] ZASCA 55 (27 May 2009) para 21 and the authorities cited therein.

[3] Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA) at para [5].

[4] Galante v Dickson 1950 (2) SA 460 (SCA) at 465.

[5] Koukoudis and Another v Abrina 1772 (Pty) Ltd and Another 2016 (5) SA 352 (SCA) para 49.

[6] Oosthuizen v Minister of Police [2023] ZAGPPHC 248 (11 April 2023) para 112.

[7] S v van der Meyden 1999 (2) SA 79 (W); Passenger Rail Agency of South Africa v Seleke (A5016/2022) [2023] ZAGPJHC 51 (25 January 2023) (Seleke) para22.

[8] Seleke paras 24-26 and the authorities cited therein.

[9] Pelser v Minister of Police [ 2023] ZANWHC 605 PARA 26

[10] Under s 1 of the Act, peace officers include police officers.

[11] National Commissioner of Police and Another v Coetzee 2013 (1) SACR 358 (SCA) para 14.

[12] Minister of Safety and Security v Sekhoto (131/10) [2010] ZASCA 141 (19 November 2010.) para 29-34, 39-41.

[13] Ibid, paras 34-36

[14] Ibid para 49.

[15] Ibid para 54.

[16] Olivier v Minister of Safety and Security and Another 2009 (3) SA 434 (W)

[17] National Commissioner of Police v Coetzee [2012] ZASCA 161 (16 November 2012) para 13.

[18] Minister of Safety and Security v Sekhoto 2011 (1) SACR 315 (SCA) 320 H-I.

[19] Mvu v Minister of Safety and Security 2009 (6) SA 82 (SGHC) paras 9 to 10.

[20] Para 15.

[21] It was undisputed that the offence with which the plaintiff was charged did not fall under any of the categories referred to ithe n s 59(1)(a)(i) to (iii).

[22] Setlhapelo v Minister of Police and Another [2015] ZAGPPHC 362 (20 May 2015) para 38-54.

[23] Kulati v Minister of Police [2020] ZAECPEHC 6 (18 February 2020) paras 18-21

[24] Minister of Police v Kulati (CA05/2022) [2025] ZAECMKHC 47 (23 May 2025) paras 20-25 and the authorities referred to therein.

[25] Minister of Police v Fry (CA259/2019) [2020] ZAECGHC 150 (6 December 2020) referred to in para 24.

[26] National Commissioner of Police v Coetzee 2013 (1) SACR 358 (SCA) paras 16-17; referred to in para 25 of Kulati fn25.

[27] Factually, as in Kulati and Malisha, the plaintiff indicated in his warning statement that he would speak in court. Ibid, para 23.

[28] Kulati appeal judgment para 35.

[29] Scheepers v the Minister of Police [2024] ZAGPJHC 1116 (1 November 2024) paras 44 to 54.

[30] Diljan v Minister of Police [2022] ZASCA 103

[31] Mathe v Minister of Police [2017] ZAGPJHC 133 paras 79-81.

[32] De Klerk v Minister of Police 2018 (2) SACR 28 (SCA) para 18; RA and Others v Minister of Police A315/2015 [2016] ZAGPPHC 264 paras 34-35.