Thusi v Minister of Police and Another (KP58/2018) [2025] ZANWHC 99 (11 June 2025)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: KP 58/2018

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

In the matter between:

THABO OCTAVIUS THUSI

Plaintiff

AND

MINISTER OF POLICE

1st Defendant

THE NATIONAL DIRECTOR OF

PUBIC PROSECUTIONS

2nd Defendant

DATE OF HEARING

: 31 JANUARY 2025

DATE OF JUDGMENT

: 11 JUNE 2025

FOR THE APPLICANT

: ADV. GERBER

FOR THE RESPONDENT

: ADV. MONGALE

JUDGMENT

Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives via email. The date and time for hand-down is deemed to be 10h00 on 11 JUNE 2025.

ORDER

Resultantly, the following order is made:

(i) The plaintiffs claim against the first defendant for unlawful arrest and detention as well as malicious prosecution is dismissed.

(ii) The plaintiff’s claim against the second defendant, the National Director of Public Prosecutions (NDPP), is abandoned.

(iii) The plaintiff is ordered to pay the cost of suit on a party-and-party basis, in terms of Scale B.

HENDRICKS JP

Introduction

[1] Mr. Thabo Octavius Thusi (plaintiff) instituted an action for damages resulting from his alleged unlawful arrest and detention, as well as a claim for malicious prosecution. Whilst the onus and incidental thereto the duty to begin insofar as the unlawful arrest and detention is concerned, rest on the Minister of Police (1st defendant), the onus with regard to malicious prosecution rest on the plaintiff. This Court, in the exercise of its discretion, ruled that the duty to begin is on the plaintiff. The plaintiff abandoned his claim against the 2nd defendant.

[2] The relevant evidence can be succinctly summarized as follows. The plaintiff testified that he is 43 years of age and a taxi operator. He is unmarried and have two minor children aged 10 and 7 years respectively. On 12 July 2016, around 10h00, he spotted a white Chev Spark motor vehicle in Extension 24, Jouberton, which had four occupants inside. After 5 minutes the motor vehicle approached him. Two of the occupants, seated at the back, were known to him. They asked him to go with them. They didn't explain where they are going and he asked ‘why should I go with you?’ They did not reply. They followed him to his house. He was walking whilst they were driving.

[3] They entered into his house. His girlfriend was busy doing laundry. Two of the occupants of the motor vehicle, Richard and Tommy, remained in the motor vehicle. The other two got into the house. They showed their police appointment cards and said that they are investigating a case in Extension 2, at house number X[...]. He was familiar with the area as well as the people, as he grew up in that area. Many of the community members are known to him.

[4] They were accompanied by an older lady. The arresting officer asked the lady ‘is this the one?’ She replied that she can see him through his eyes. Thereby, identifying the plaintiff as the perpetrator. He was placed in the motor vehicle. The arresting officer asked him for the keys of his parental (father’s) house. He said he gave it to Thabo, who stays there. They drove to Extension 15 and managed to locate Thabo and the keys. They came with Thabo. Thabo opened the house and the arresting officer ask where his clothes are. He said his clothes are at Extension 24. They close the house and went back to Extension 24.

[5] He was asked about the blue denim jeans he was wearing the previous day. The clothes were lying on the floor, to be washed. The arresting officer confirmed with his girlfriend that it is the clothes of the plaintiff. They put the clothes in the refuse bag. The arresting officer asked him where he was on the 11th (the previous day) and told him that he was at Correctional Service with Mr. Dikudu, his supervisor, since he was on parole and had to visit the office of Correctional Services to report. He was convicted for house breaking and car theft and he served his sentence. He was then taken to the police station. His rights as a suspect was explained to him and he was given a Notice of Rights form. At 15h00 he was taken into the cell where he remained for three days. He was charged with rape.

[6] He was taken to court on the 14th July 2016. He was remanded in custody for confirmation of his address and for a formal bail application. He was granted bail on 4 August 2016 and released on 9 August on R1 000.00 bail. The arresting officer was involved in the bail application and testified. He confirmed that he was with the plaintiff the previous day. Subsequently, the case was withdrawn and he was never re-charged. He was never explained why he had to attend court until the case was withdrawn.

[7] Insofar as his detention in the cell is concerned, the food was not palatable. He ate porridge and two slices of bread. According to him, not even a dog can eat it. The toilet was not working. He was detained at Potchefstroom prison. The cell was overcrowded. There were 24 beds for more than 70 inmates. He was never arrested since 2013 and he was rehabilitated. He denied his involvement in the rape charge. He had an alibi. This was told to the arresting officer, by the supervisor. He lost his mother in 2019. He also lost the mother of his children.

[8] The investigating officer never disclosed during the bail application that he informed him that he was with the supervisor. The outcome would have been different had he investigated his alibi. By then, he was 19 years old. He was released when he was 38 years old. He served two sentences of 10 years each for rape; 6 years for house breaking and 3 years for car theft. According to the plaintiff, the arresting officer treated him so because of his past. He does not trust the

police anymore. He got a bad image from his past and the way he was treated. What he experienced was unjustified.

[9] During cross-examination he stated that he does not know where the complainant stays, and that he doesn't know her. The complainant was asked whether she can identify him and she failed to do so. The plaintiff was confronted about the difference in time when he was with the parole officer, whether it was at 8:45 or 11:00. The alleged rape occurred at 12h00. It was put to him that the arresting officer will testify that he had more than enough evidence to sustain the

allegation that he committed the rape, which he denied. According to the plaintiff he timeously informed the arresting officer about his alibi and that he produced proof to that effect. He conceded however that the complainant directed the police to his girlfriend's place where he was arrested. According to him, the complainant identified him through his eyes. That concluded the evidence tendered in the plaintiff’s case.

[10] Warrant Officer (W/O) Morapedi Mochumi, who has since retired, testified for and on behalf of the defendant. He stated that on 12 July 2016, he was performing standby duty, attending new cases. At Jouberton Police Station he received the docket for investigation. He perused it. The residential place of the victim was at Extension 2, house number 3[...]. He found the victim and interviewed her. She informed him that at the time she gave her statement, she was traumatized and omitted some of the evidence.

[11] He asked her about the identity of the suspect. She said that the assailant was wearing a balaclava but when she struggled with him, she hit him with a mug and managed to remove his balaclava. She recognized him as he was staying diagonally back opposite her house. He undress her and inserted his finger in her private part. She was screaming and fighting. He stood up and went to the kitchen door and opened it. He stood there and she managed to close the door and locked him outside.

[12] She phoned her mother. The neighbour came running as she heard the screams. She reported the matter to the neighbour. The investigating officer obtained an additional statement from her. He went to look for the witness, the neighbour. He took the complainant and went to the place of the suspect (plaintiff). The house was locked. He asked the neighbour about the plaintiff’s whereabouts. A report was made to him that he is staying at Extension 24, at his girlfriend's place.

[13] The following day he was with the complainant. They went to Extension 24, where they found a lady and the plaintiff. The complainant pointed him out. He warned the plaintiff as a suspect according to the Judges Rules. The complainant gave a description of the clothing the plaintiff (suspect) was wearing to wit black police boots, a blue trouser of police and a blue jersey.

[14] He asked the plaintiff who admitted that he has such clothing. By then, he was still wearing the police boots. He had a tracksuit pants on. He asked for the boots and the trouser. The plaintiff went to the washing bin and he removed the trouser. He asked him where he got it from and the plaintiff said that his father was a police officer. The investigating officer was given these items. He confiscated the clothing and sent it for ballistics. According to the complainant’s first statement, she said the incident happened at 12h00. He arrested the plaintiff.

[15] During the bail application, he deposed to an affidavit and he testified. He conceded that his statement during the bail application does not mention the time of the incident. He mistakenly said it was 10h00. This was the wrong time. The correct time was 12h00. He denied that he asked him about his house. The neighbour said that he was at his girlfriend. He did explain the reason for the arrest.

[16] He arrested the plaintiff as the complainant pointed him out. According to the complainant, he fingered her. He made further investigations. He reiterate that the complainant pointed out the plaintiff as the perpetrator. The members of the community was also outrageous about the allegation. The purpose of arrest was to ensure his attendance at court. According to him, the situation was tense. He could not have warned him nor couldn't have left him to the angry community. The plaintiff is an ex-convict and it was difficult to leave him. He exercised his discretion. He had no other alternative and he did foresee danger.

[17] He was cross-examined. He reiterated that the complainant said during the interview that he had with her, that she knows the plaintiff (suspect) facially but not by name. He first obtained the statement before he went to the plaintiffs’ parental place of abode. He couldn't find him. The following day he, in the company of the complainant, went to the plaintiff’s girlfriend's house, where he found the plaintiff and his girlfriend. She then confirmed that he was her assailant. It further emerged during cross-examination that the arresting officer made further investigations and verified the information before he effected the arrest of the plaintiff. Much reliance was placed on the fact that the complainant pointed out the plaintiff as the suspect.

[18] Further cross-examination centered around the time of alleged incident; the date of taking down the additional statement of the complainant; when the Notice of Rights document was completed; the date of the arrest of the plaintiff; whether or not the plaintiff had any visible injuries as a result of being allegedly assaulted with a mug and been bitten; whether or not he was appraised of the alibi raised by the plaintiff. The differences between his viva voce evidence, his statement and his testimony during the bail application was also highlighted. He was also confronted with the fact that on the 14th, he obtained a report on the status of the plaintiff from the Department of Correctional Services (DCS) and he established that the plaintiff was on parole for amongst other offences, rape. It was put to him that this information as verified initiated the arrest of the plaintiff, which the investigating officer denied.

[19] The provisions of section 40(1)(b) of the Criminal Procedure Act (Act 51 of 1977 as amended) provide inter alia:

“40. Arrest by peace officer without warrant. (1) A peace officer may without a warrant arrest any person –

(a) …

(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody.”

[20] The jurisdictional facts for a defence in terms of section 40(1)(b) are: -

(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 in Schedule 1;

(iv) the suspicion must rest on reasonable grounds.

An arrest is therefore prima facie wrongful and unlawful. It is therefore not necessary for the plaintiff to prove wrongfulness or unlawfulness. Once the arrest is proven, it is for the defendant to allege and prove the lawfulness of the arrest.

See: Minister of Law & Order vs. Hurley 1986 (3) SA 568 (A)

[21] In Le Roux v Minister of Safety & Security and another, [2007] (4) SA 491 (N), the Court made it clear that there must be caution exercised by arresting officers, when depriving someone of their liberty without a warrant of arrest. The Court said:

“The mere compliance with Section 40(1)(b) of the Criminal Procedure Act, 51 of 1977 (The Act) does not render an arrest without a warrant lawful. More care and diligence is required of the arresting officer. Even if a crime which is listed in schedule 1 of the Act, has allegedly been committed and that the arresting officer on reasonable grounds believe that such a crime has indeed been committed, this in itself does not justify a differentiated of movement and dignity of the Plaintiff. The Court must look further in due compliance of Section 40(1)(b) of the Act to the constitutional principles and the rights to dignity and to freedom as enshrined in the Constitution of the Republic of South Africa 1996…”

[22] The court must not only be content with a finding that the arrest of the suspect fell squarely within the parameters of section 40 (1)(b) of the Act, it must also look beyond the provisions of the section to the principles and provisions of the Constitution, relating to the right and dignity in order to determine if the arrest was justified. Unlawful arrest and detention constitute a serious inroad into the right to freedom. The power of arrest and detention as in the act, must be exercised in accordance with the established constitutional principles and provisions of the Bill of Rights, being the right to freedom and dignity. The question whether or not the suspicion of the arrestor rests on reasonable grounds for purposes of effecting an arrest in terms of section 40(1)(b) of the Criminal Procedure Act must be approached objectively.

[23] A peace officer, who harbours a reasonable suspicion that an offence was committed, of course has a discretion whether or not to arrest the offender, for the requisite jurisdictional requirements for the making of an arrest under section 40(1) of the Act would be satisfied. But the presence of those jurisdictional facts alone does not suffice to make the arrest lawful, for when they are present, a discretion whether to arrest or not arises and that discretion must not only be exercised, it must be exercised properly:

See: Duncan v Minister of Law and Order 1986 (2) SA 805 (A).

J. Gellman v Minister of Safety and Security [2007] ZAGPHC 269; 2008 (1) SACR 446 (W).

Minister of Safety and Security v Sekhoto and Another 2011 (5) SA 367 (SCA).

[24] In Minister of Safety and Security v Sekhoto 2011 (5) SA 367 (SCA) the following is stated:

“[28] 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.

[40] an official who has discretionary powers must, as alluded to earlier, naturally exercise them within the limits of the authorising statute read in the light of the Bill of Rights. Where the statute is silent on how they are to be exercised that must necessarily be deduced by inference in accordance with the ordinary rules of construction, consonant with the Constitution, in the manner described by Langa CJ in Hyundai.”

[25] It is trite that each case must be decided and determined on its own merits. The unique features of this case is deserving to be restated. The plaintiff was facially known to the complainant. She did not know him by name but stated in her statement, right from the onset, that she will be able to recognize him when she sees him. She even gave a description of the clothes he was wearing. She had a physical encounter with the plaintiff during which she assaulted him with a mug and bit him. No mention was made that the plaintiff sustained any open wound(s) as a result of these assaults on him.

[26] The plaintiff’s identity was not in dispute to the extent that he was a neighbour to the complainant and they stayed diagonally back opposite each other. When the investigating officer (Mr. Motsumi) arrived at the complainant’s place, she was able to take him to the parental place of the plaintiff. This cannot be denied. Further information was received that he is not at his parental place of abode at Extension 2, but at his girlfriend's place at Extension 24. Investigations led to the girlfriend's place.

[27] Upon arrival there, the complainant positively identified the plaintiff facially as her assailant. The clothes befitted the description of the clothes he wore the previous day, which to a very large extent corroborate the report that the complainant made to the investigating officer. The fact that these clothes were seized as exhibits are common cause. Rape is listed as a Schedule 1 offence in terms of section 40 (1)(b), an arrest may be effected without a warrant of arrest. Armed with all this information, especially the positive identification of the plaintiff as the perpetrator by the complainant, the arrest was effected. The contention that the investigating officer did not analyze and assess the quality of the information at his disposal critically, and that he accepted it lightly and/or without checking it where it can be checked, is unmeritorious. This is definitely not a case of arrest first and investigate later. A follow up interview with the complainant was held before she accompanied the investigating officer and pointed out the plaintiff as her assailant. This, in my view, is what a reasonable investigating officer would have done.

[28] The request for the clothes that the plaintiff wore the preceding day; the fact that he pointed it out; the description of the clothes and boots befitting what the complainant reported, all points objectively viewed to the fact that the investigating officer did not blindly effected the arrest of the plaintiff. He indeed exercised a discretion. Whilst it is true that as an investigating officer he is obliged to investigate the alibi raised by the suspect (plaintiff); it is not his duty to determine the guilt or otherwise of the suspect. There is a difference in the evidence of the investigating officer with regard to the time, but this is of no moment if regard is had to the evidence of the plaintiff. His visit to DCS was very brief (short). His so-called visit to a social worker in the same building can safely be disregarded as an afterthought. The time

factor does not in any way detract from the information supplied by the complainant about the identity of her assailant. Taking all the evidence, viva voce as well as documentary, into account, I am of the considered view that the arrest of the plaintiff was lawful. All the jurisdictional requirements have been met.

[29] Insofar as the detention is concerned, the plaintiff was arrested and processed and even taken to court within the prescribed time limit. His detention until his first court appearance was therefore not unlawful. The matter was postponed for the hearing of the formal bail application, which was successful. However, he was only able to raise the bail amount and paid it on 09 August 2016. The detention from 14 July 2016 to 09 August 2016 was in my view also not unlawful or done

with malicious intent. The claim of malicious prosecution was abandoned by the plaintiff.

[30] To conclude. I am unconvinced that the arrest and subsequent detention of the plaintiff was wrongful and/or unlawful. So too, was the prosecution not malicious. The abandonment of the claim against the National Director of Public Prosecutions (NDPP) was indeed well made. The plaintiff’s claims should consequently be dismissed. Insofar as costs are concerned, there is no plausible reason that it should not follow the result. This is trite. In my view a case has been made out for costs to be awarded on a party-and-party basis on Scale B.

Order

[31] Resultantly, the following order is made:

(i) The plaintiffs claim against the first defendant for unlawful arrest and detention as well as malicious prosecution is dismissed.

(ii) The plaintiff’s claim against the second defendant, the National Director of Public Prosecutions (NDPP), is abandoned.

(iii) The plaintiff is ordered to pay the cost of suit on a party-and-party basis, in terms of Scale B.

R D HENDRICKS

JUDGE PRESIDENT OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG