Makhubele v Minister of Police and Another (1320/2021) [2025] ZANWHC 76 (25 April 2025)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION – MAHIKENG

Case Number: 1320/2021

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

MAKHUBELE JONAS KHULU

Plaintiff

And

MINISTER OF POLICE

First Defendant

MINISTER OF DEFENCE

Second Defendant

Delivered: This judgment is handed down electronically by circulation to the parties through their legal representatives’ email addresses. The date for the hand-down is deemed to be on 25 APRIL 2025

ORDER

JUDGMENT

DJAJE DJP

Introduction

[1] The plaintiff instituted an action from damages arising from unlawful arrest and detention and assault against the first and second defendants. No appearance to defend entered on behalf of the second defendant. The matter proceeded on both merits and quantum and defended by the first defendant.

[2] The plaintiff testified that on 2 May 2020 he was assaulted and arrested by the members of the defendants. On that day he was home with his family when the soldiers and police arrived with Mpho. Mpho who was known to the plaintiff informed the plaintiff that there were people forcing him to steal items and sell them. The police knocked and when he opened the door they started to assault him. One police officer told the plaintiff that they are doing their work by arresting him. He was sprayed with pepper spray on his private parts by a police officer, cuffed him and placed in a police van. According to the plaintiff all this happened in the presence of his wife and children. There were two male soldiers, three female soldiers and one police officer.

[3] After he was arrested, he was taken to a shop which was searched. At the shop the assault by the police officer continued. There was a van at the shop with windows that were alleged to have been stolen. The plaintiff and Mpho were taken to the police station where they were detained and informed of their charges of malicious damage to property and theft. The plaintiff explained that he did not know anything about the charges of malicious damage to property. According to the plaintiff he was approached by certain boys with stolen property as he was a community leader. He was supposed to find the owner of the stolen items and inform the police. The evidence by the plaintiff was that as a result of the assault his head was swollen, he was bleeding through the nose and vomiting blood. After his release from detention the day following the arrest, he tried to attend at the hospital but was turned back due to COVID cases. He only consulted with a doctor at Pretoria West hospital four days after his release from detention.

[4] The plaintiff appeared in court and paid admission of guilt fine in the amount of R60.00. During cross examination the plaintiff was confronted with the hospital record where the doctor noted no injuries upon examination.

[5] The plaintiff’s partner, Sannikie Ndou testified that on the day of the incident the police and soldiers arrived at their house looking for the plaintiff. When he opened the door, they started to assault him and sprayed his private parts with pepper spray. He was taken to the police van and the police left with him. According to Ms Ndou, the plaintiff’s face was swollen, and he had bruises on his back. She noticed all these injuries when the plaintiff was released from custody the following day. Ms Ndou testified that the plaintiff was not assaulted by the soldiers but by the police.

[6] Two witnesses testified on behalf of the first defendant. Sergeant Rodney Thathane was present on 2 May 2020 when the plaintiff was arrested. A case of malicious damage to property and theft was opened at the police station. The complainant identified the plaintiff and one Mpho as the suspects who damaged her property and stole windows. As there were soldiers in the area deployed during the COVID patrol, he asked them to accompany him and other police officers to the plaintiff’s place. They first went to Mpho’s place who directed them to the plaintiff’s house. On arrival at the plaintiff’s house some police officers and soldiers went in with Mpho. After introducing themselves, the plaintiff came out of the house and the police explained why they were looking for him. Thathane explained to the plaintiff that he was arrested for malicious damage to property and theft. He was cuffed and arrested.

[7] Thathane explained that the plaintiff was identified as one of the suspects by the complainant and that is the reason why he was arrested without a warrant of arrest. On the way to the police station, Thathane stopped at a certain shop whilst with the plaintiff and Mpho. He went into the shop to conduct a search for stolen items. The plaintiff and Mpho were in the police vehicle and Sergeant Kotsokoane was guarding them. Thathane testified that from where he was in the shop he could clearly see the vehicle where plaintiff was and there was no assault on the plaintiff as alleged. At the police station the plaintiff was interviewed by Thathane and he did not mention any assault on him or show any injuries and none were visible.

[8] During cross examination, Thathane explained that the plaintiff could not explain why he failed to call the police when approached by people with stolen items. Further that the plaintiff could not have decided to keep stolen items safe as he was not a law enforcement officer.

[9] Sergeant Lawrence Kotsokoane was present on 2 May 2020 when the plaintiff was arrested. When they stopped at the shop with Thathane he did not go inside the shop but stood next to the vehicle in which the plaintiff and Mpho were. He denied assaulting the plaintiff or any one on that day. Kotsokoane further testified that he did not notice any injuries on the plaintiff.

[10] It was argued on behalf of the plaintiff that there was no justification for the police to arrest and detain the plaintiff without a warrant of arrest. The plaintiff was a community leader, and his explanation should have been accepted as being the truth. It was submitted that failure by the plaintiff to produce a medical certificate does not render his version of being assaulted false and his evidence was corroborated by Ms Ndou.

[11] In contention the first defendant argued that the police in arresting the plaintiff complied with the provisions of section 40(1)(b) of the Criminal Procedure Act 51 of 1977 in that there was a suspicion that the plaintiff committed an offence referred to in Schedule 1. Further that the suspicion was based on the identification of the plaintiff as a suspect by the complainant. It was submitted that that the police acted reasonably by arresting the plaintiff as there was an offence committed, and the plaintiff was identified as one of the instigators.

[12] On the allegations of assault, it was contended that the medical record from Pretoria West Hospital where the plaintiff was examined did not record any visible injuries. In addition, it was argued that the plaintiff was just given iboprufen and panado and sent home which proved that there were no injuries on the plaintiff caused by assault.

Law

[13] Section 40 (1) (b) of the Criminal Procedure Act 51 of 1977 states that:

“40. Arrest by peace officer without warrant

(1) A peace officer may without warrant arrest any person –

(b) Whom he reasonably suspects to have committed a schedule 1 offence other than the offence of escaping from custody.

[14] In Duncan v Minister of Law and order (38/1985) [1986] ZASCA 24 where the court said the following:

“The so-called jurisdictional facts which must exist before the power conferred by s 40(1)(b) of the present act may be invoked, are as follows:

1) The arrestor must be a peace officer;

2) He must entertain a suspicion;

3) It must be a suspicion that the arrestee committed an offense referred to in schedule one to the act;

4) The suspicion must arrest on reasonable grounds.

If the jurisdictional requirements are satisfied, the peace officer may invoke the power conferred by this subsection, i.e., he may arrest the suspect.”

[15] The onus rests on a defendant to justify an arrest. See Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A) at 589 E-F.

[16] In Zealand v Minister of Justice and Constitutional Development and Another [2008] ZACC 3; 2008 (4) SA 458 (CC) par 24, the court stated that:

“The Constitution enshrines the right to freedom and security of the person, including the right not to be deprived of freedom arbitrarily

or without just cause, as well as the founding value of freedom. Accordingly, it was sufficient in this case for the applicant simply to plead that he was unlawfully detained. This he did. The respondents then bore the burden to justify the deprivation of

liberty, whatever form it may have taken.”

[17] The Supreme Court of Appeal in Biyela v Minister of Police (1017/2020) [2022] ZASCA 36 (01 April 2022) at par 34 to 36 dealt with reasonable suspicion as follows:

“[34] The standard of a reasonable suspicion is very low. There is no 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 one 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 one offence.

[36] The arresting officer is not obliged to arrest based on a reasonable suspicion because he or she has a discretion. The discretion to arrest must be exercised properly. Our legal system sets great store by the liberty of an individual and, therefore, the discretion must be exercised after taking all the prevailing circumstances into consideration.”

Analysis

[18] It is common cause that the plaintiff was arrested on 2 May 2020 on allegations of malicious damage to property and theft. As a result of the arrest, he was detained at the police station and released the following day. He eventually appeared in court where he paid an admission of guilt fine in the amount of R60.00. The arresting officer testified that the plaintiff was identified by the complainant as the person who damaged her property and stole her windows. After the plaintiff was pointed out by the complainant the arresting officer asked him about the stolen items and his explanation was that he was approached by certain boys with the stolen items, and he was intending to keep them safely whereafter he would call the police. This explanation was found to be unacceptable to the arresting officer and the plaintiff was arrested.

[19] The issue to be determined first is whether the arresting officer entertained a reasonable suspicion before effecting the arrest as pleaded in terms of section 40(1)(b). According to the arresting officer the reason for arresting the plaintiff was that he was pointed out by the complainant as one of the people who damaged her shack and stole her windows. Secondly, that the explanation by the plaintiff was not reasonable.

[20] It is not in dispute that the police received a complaint about a shack that was damaged, and items removed. They went out to conduct some investigations and interviewed the complainant who led them to the suspects being the plaintiff and Mpho. The complainant was known to the plaintiff and did not hesitate in pointing him out as one of the suspects. The plaintiff was aware of the crime committed at the complainant’s shack. The police in conducting their investigations went to Mpho’s place first and then went to look for the plaintiff. This was part of their investigations based on the information received from the complainant.

[21] The arresting officer in deciding to arrest the plaintiff did not base his decision on a hunch but on information received from the complainant and on preliminary investigations done. As stated in Biyela, whether that information is inadmissible before court or not is neither here nor there. At that time the arresting officer was there with the complainant and the plaintiff was identified as the perpetrator. In addition, the plaintiff’s explanation could

not be found to be reasonable. If indeed he was approached by some boys with the stolen items, it was incumbent upon him to immediately

call the police. He was not a law enforcement officer and could not decide to keep stolen items. He was not able to explain why he did not immediately call the police.

[22] In relation to the assault, the plaintiff testified that he was severely assaulted by members of the first and second defendant and his head was swollen, he was bleeding and vomiting blood. Ms Ndou testified that the plaintiff was bruised all over his body. The plaintiff was released from detention on 3 May 2020 and was returned at the hospital due to COVID cases. He then went home and only saw a doctor after four days. The version of the plaintiff being sent away from the hospital is improbable if he is to be believed that he had serious injuries. Moreover, when he did see a doctor, none of the injuries he testified about were visible to the doctor including those that were noticed by Ms Ndou of bruises all over his body. The plaintiff was not able to give a proper account of how he was assaulted both at the time of arrest and at the shop. At the time he made his statement at the police he did not mention that the was assaulted. The case that he eventually opened for assault did not result in any arrest. His version is found to be improbable as far as it relates to the assault.

[23] In assessing the evidence in its totality the arresting officer in this matter acted lawfully and the plaintiff’s claim for unlawful arrest and detention stands to be dismissed. The arrest and detention of the plaintiff was lawful and in compliance with section 40(1)(b) of the Criminal Procedure Act. The plaintiff failed to proof on a balance of probabilities that he was assaulted by members of the defendants on the date of arrest.

Costs

[24] It is trite that costs follow the result and as the plaintiff is unsuccessful he should be ordered to pay costs of suit.

Order

[25] Consequently, the following order is made:

1. The Plaintiff’s claim is dismissed.

2. The Plaintiff is ordered to pay the costs of suit.

J T DJAJE

DEPUTY JUDGE PRESIDENT OF THE HIGH COURT

NORTH WEST HIGH COURT

APPEARANCES

DATE OF HEARING

: 12 MARCH 2025

JUDGMENT RESERVED

: 26 MARCH 2025

DATE OF JUDGMENT

: 25 APRIL 2025

COUNSEL FOR THE PLAINTIFF : ADV KWAPE

COUNSEL FOR THE DEFENDANT : ADV K MANTHE