South Africa Case Law

Moje v Minister of Police (549/2021)

Moje v Minister of Police (549/2021) [2025] ZANCHC 46 (30 May 2025)

Court

Northern Cape High Court, Kimberley

Case number

549/2021

Judge

Lever

The defendant failed to establish the jurisdictional facts required for a lawful arrest under section 40(1)(b) of the Criminal Procedure Act. The evidence showed that the plaintiff could not be linked to the principal crime scene or the robbery itself, and the only information available prior to arrest was that the plaintiff transported his cousin after the robbery. This did not amount to reasonable grounds to suspect the plaintiff of committing a Schedule 1 offence. The arresting officer did not exercise proper discretion, merely following instructions without independent consideration. The…

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• Unlawful Arrest
• Unlawful Detention
• Section 40 Criminal Procedure Act
• Onus Of Proof
• Damages For Wrongful Arrest

Lambrakis v Minister of Police and Others (6109/2021)

Lambrakis v Minister of Police and Others (6109/2021) [2025] ZAGPJHC 223 (28 February 2025)

Court

South Gauteng High Court, Johannesburg

Case number

6109/2021

Judge

Malungana

The court found that the police did not properly exercise their discretion to arrest the plaintiff. The evidence showed that Whitfield Super Spar sold only prepacked food, not hot cooked food, and complied with COVID-19 regulations. The plaintiff's role was administrative, and there was no reasonable basis to suspect him of contravening the Disaster Management Act. The police failed to establish a rational link between the plaintiff's conduct and any offence under the regulations. The arrest and subsequent detention were therefore unlawful. The plaintiff is entitled to damages, with quantum t…

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• Unlawful Arrest
• Unlawful Detention
• Damages For Wrongful Arrest
• Covid Regulations
• Discretion To Arrest
• Constitutional Right To Freedom

Scheepers v Minister of Police (A2023/118653)

Scheepers v Minister of Police (A2023/118653) [2024] ZAGPJHC 1116; 2025 (1) SACR 437 (GJ) (1 November 2024)

Court

South Gauteng High Court, Johannesburg

Case number

A2023/118653

Judges

E Raubenheimer, G Malindi

The court found that the arrest and subsequent detention of the appellant were unlawful. The police failed to exercise their discretion properly, did not consider alternatives to arrest, and neglected to investigate the appellant's explanations or assess whether he posed a flight risk or danger. The appellant was eligible for prosecutorial bail before his first court appearance, but the police did not inform him of this right or facilitate the process. The magistrate misdirected herself by ignoring statutory and constitutional requirements, failing to harmonise the appellant's rights to freed…

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• Unlawful Arrest
• Unlawful Detention
• Police Discretion
• Bail Before First Appearance
• Damages For Wrongful Arrest

Hlape v Minister of Police (426/2023)

Hlape v Minister of Police (426/2023) [2024] ZASCA 68; 2024 (2) SACR 148 (SCA) (3 May 2024)

Court

Supreme Court of Appeal

Case number

426/2023

Judges

Nicholls, Mothle, Weiner, Molefe, Kgoele

The Supreme Court of Appeal dismissed an appeal over alleged unlawful arrest and detention after finding the arrest lawful and no basis for damages.

• Unlawful Arrest
• Unlawful Detention
• Damages For Wrongful Arrest
• Discretion To Arrest
• Bail Rights
• Unlawful-arrest

Serite v Minister of Police and Others (43007/2020)

Serite v Minister of Police and Others (43007/2020) [2024] ZAGPPHC 326 (8 April 2024)

Court

North Gauteng High Court, Pretoria

Case number

43007/2020

Judge

T E Joyini

The High Court held that Prince Xolani Serite’s arrest, detention, further detention, and prosecution were unlawful and malicious, awarding him costs.

• Unlawful Arrest
• Unlawful Detention
• Malicious Prosecution
• Firearms Control Act
• Onus Of Proof
• Damages For Wrongful Arrest

Kopang v Minister of Police (22372/17)

Kopang v Minister of Police (22372/17) [2023] ZAGPPHC 1926 (17 November 2023)

Court

North Gauteng High Court, Pretoria

Case number

22372/17

Judge

Mnisi

The High Court held that the plaintiff’s warrantless arrest and same-day detention were unlawful because the defendant failed to prove reasonable grounds under section 40(1)(b).

• Unlawful Arrest
• Unlawful Detention
• Section 40 Criminal Procedure Act
• Onus Of Proof
• Damages For Wrongful Arrest
• Unlawful-arrest

Makunyane v Minister of Police (2016/18398)

Makunyane v Minister of Police (2016/18398) [2023] ZAGPJHC 1314 (13 November 2023)

Court

South Gauteng High Court, Johannesburg

Case number

2016/18398

Judge

M van Nieuwenhuizen

The court found that the defendant failed to discharge the onus of proving that the arrest and detention of the plaintiff were lawful. The arresting officer relied on incomplete information, did not critically assess or verify the plaintiff's explanation, and failed to call other available witnesses who could have clarified the circumstances. The suspicion was not based on solid grounds but rather on the plaintiff's presence with a washing machine at night and his evasiveness, which was insufficient to justify arrest. As the arrest was unlawful, the subsequent detention was also unlawful. The…

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• Unlawful Arrest
• Unlawful Detention
• Damages For Wrongful Arrest
• Onus Of Proof
• Constitutional Right To Liberty

Minister of Police and Another v Verster (A166/2022)

Minister of Police and Another v Verster (A166/2022) [2023] ZAFSHC 267 (10 July 2023)

Court

Free State High Court, Bloemfontein

Case number

A166/2022

Judges

Gusha, Opperman

The court found that the arresting officer, Mpata, did not meet the jurisdictional requirements for a lawful warrantless arrest under section 40 of the Criminal Procedure Act. His suspicion was not based on objectively reasonable grounds, as he failed to interview the complainant or obtain a J88 to confirm serious injuries. The plaintiff was not a flight risk, and there was no evidence to justify the arrest. Regarding detention post first appearance, the court held that the authority to detain is exhausted once the arrested person is brought before court, and further detention must be justifi…

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• Unlawful Arrest
• Unlawful Detention
• Malicious Prosecution
• Bill Of Rights Limitation
• Damages For Wrongful Arrest
• Joint And Several Liability

Ditsele and Others v Minister Of Police and Another (805/2019)

Ditsele and Others v Minister Of Police and Another (805/2019) [2023] ZAFSHC 122 (21 April 2023)

Court

Free State High Court, Bloemfontein

Case number

805/2019

Judge

Opperman

High Court leave-to-appeal decision in a damages claim for unlawful arrest and malicious prosecution; the court found no reasonable prospect of success and dismissed the applications.

• Unlawful Arrest
• Malicious Prosecution
• Section 40 Criminal Procedure Act
• Reasonable Suspicion
• Damages For Wrongful Arrest
• Leave To Appeal Test

Hlapi v Minister of Police (A3069/2022)

Hlapi v Minister of Police (A3069/2022) [2023] ZAGPJHC 70 (1 February 2023)

Court

South Gauteng High Court, Johannesburg

Case number

A3069/2022

Judges

Adams, Turner

The High Court dismissed an appeal against a finding that the arrest and detention for dagga possession were lawful and that police discretion was not improperly exercised.

• Warrantless Arrest
• Unlawful Detention
• Exercise Of Police Discretion
• Damages For Wrongful Arrest
• Warrantless-arrest
• Unlawful-detention