South Africa Case Law

Tom v S (Appeal) (CA&R17/2025)

Tom v S (Appeal) (CA&R17/2025) [2025] ZAECBHC 13 (12 June 2025)

Court

Eastern Cape High Court, Bhisho

Case number

CA&R17/2025

Judge

Zono

The magistrate's refusal to grant bail was arbitrary and unconstitutional because he failed to consider and account for the appellant's affidavit and the relevant factors required by law. The judgment lacked reasons and proper analysis, violating the appellant's constitutional rights to freedom and security of the person and the principle of judicial impartiality. The appeal court found that the magistrate's decision was wrong and substituted it with an order admitting the appellant to bail, subject to standard conditions.

Source excerpt

• Bail Application
• Judicial Reasoning
• Section 65 Criminal Procedure Act
• Section 12 Constitution
• Judicial Impartiality
• Failure To Give Reasons

Xulu v Minister Of Police and Another (21/52147)

Xulu v Minister Of Police and Another (21/52147) [2023] ZAGPJHC 1030 (13 September 2023)

Court

South Gauteng High Court, Johannesburg

Case number

21/52147

Judge

de Vos

The court held that police unlawfully arrested and detained a robbery victim who acted in self-defence, awarding R2.6 million and dismissing malicious prosecution.

• Unlawful Arrest
• Unlawful Detention
• Self Defence
• Public Law Duty Of Police
• Section 12 Constitution
• Section 205 Constitution

Mlombo v Minister of Police (190/2022)

Mlombo v Minister of Police (190/2022) [2023] ZAECBHC 22 (8 August 2023)

Court

Eastern Cape High Court, Bhisho

Case number

190/2022

Judge

Bloem

The High Court held that Mlombo’s post-appearance detention was unlawful because it was not based on a valid court order, awarding him R400,000.

• Unlawful Detention
• Damages Assessment
• Section 12 Constitution
• Onus Of Proof
• Vicarious Liability
• Quantum Of Damages

Serakwana v Minister of Police (2014/39550)

Serakwana v Minister of Police (2014/39550) [2023] ZAGPJHC 315 (3 April 2023)

Court

South Gauteng High Court, Johannesburg

Case number

2014/39550

Judge

Mabuse

The court found that the Defendant failed to establish reasonable grounds for the Plaintiff's arrest under section 40(1)(b) of the Criminal Procedure Act. The medical evidence (J88) did not record any open or dangerous wound on the complainant, undermining the basis for suspicion of a Schedule 1 offence. The arresting officer's subjective belief was not supported by objective facts. The Plaintiff's detention conditions were deplorable, with lack of adequate accommodation and nutrition, violating section 35(2)(e) of the Constitution. The Plaintiff was deprived of liberty for over 12 hours in i…

Source excerpt

• Unlawful Arrest
• Unlawful Detention
• Actio Injuriarum
• Section 12 Constitution
• Section 35 Constitution
• Quantum Of Damages

Minister of Justice and Constitutional Development and Another v Masia (A13/2019)

Minister of Justice and Constitutional Development and Another v Masia (A13/2019) [2021] ZAGPPHC 428; 2021 (2) SACR 425 (GP) (28 June 2021)

Court

North Gauteng High Court, Pretoria

Case number

A13/2019

Judges

C N Van Heerden, TLHAPI VV

The High Court held that a magistrate maliciously ordered a maintenance litigant’s detention, making the Minister of Justice vicariously liable; the police appeal succeeded.

• Unlawful Arrest And Detention
• Judicial Immunity
• Vicarious Liability
• Damages Quantum
• Section 12 Constitution
• Malicious Conduct

Molefe v Minister of Police (433/2019)

Molefe v Minister of Police (433/2019) [2020] ZANWHC 63 (22 October 2020)

Court

North West High Court, Mafikeng

Case number

433/2019

Judge

Noncembu

High Court quantum judgment awarding R90,000 for unlawful arrest and detention after the defendant conceded liability.

• Unlawful Arrest
• Unlawful Detention
• Damages Quantum
• Section 12 Constitution
• Personal Liberty
• Unlawful-arrest

De Klerk v Minister of Police (CCT 95/18)

De Klerk v Minister of Police (CCT 95/18) [2019] ZACC 32; 2019 (12) BCLR 1425 (CC); 2020 (1) SACR 1 (CC); 2021 (4) SA 585 (CC) (22 August 2019)

Court

Constitutional Court

Case number

CCT 95/18

Judges

Mogoeng, Basson, Cameron, Dlodlo, Froneman, Goliath, Khampepe, Mhlantla, Petse, Theron

The Constitutional Court held that the Minister of Police is liable for the applicant's entire period of detention following his unlawful arrest, including the period after his first court appearance. The majority reasoned that legal causation, not merely the lawfulness of the subsequent detention, determines liability. The arresting officer subjectively foresaw the applicant's further detention as a direct consequence of her unlawful arrest, and the chain of causation was not broken by the magistrate's mechanical remand order, which lacked genuine judicial discretion. Public policy considera…

Source excerpt

• Unlawful Detention
• Legal Causation
• Actio Iniuriarum
• Section 12 Constitution
• Remoteness Of Damage

Ngwenya v Minister of Police (A3128/2017)

Ngwenya v Minister of Police (A3128/2017) [2018] ZAGPJHC 610 (29 October 2018)

Court

South Gauteng High Court, Johannesburg

Case number

A3128/2017

Judges

Twala, Matsemela

The court found that the arresting officer's suspicion was not based on reasonable grounds, as the information from Ayanda Sidu was unreliable and had previously been proven false. The police failed to corroborate the information and did not exercise reasonable discretion in arresting the appellant. The continued detention was also unlawful, as the investigating officer did not provide a fair and objective statement of facts to the prosecutor and court, despite knowing the weakness of the case against the appellant. The appellant was deprived of his liberty for 27 days without just cause, in…

Source excerpt

• Unlawful Arrest
• Unlawful Detention
• Damages For Deprivation Of Liberty
• Section 12 Constitution
• Section 40 Criminal Procedure Act
• Assessment Of General Damages

Phungula v Minister pf Police (AR 342/2017)

Phungula v Minister pf Police (AR 342/2017) [2018] ZAKZPHC 21 (8 June 2018)

Court

Kwazulu-Natal High Court, Pietermaritzburg

Case number

AR 342/2017

Judges

Gorven, Madondo

The court found that the arresting officer, Constable Duma, did form a reasonable suspicion based on information from the docket and the appellant's mother's report, satisfying the jurisdictional requirements for a lawful arrest under section 40(1)(b) of the Criminal Procedure Act. The discretion to arrest was properly exercised given the circumstances, including the appellant's prior absconding and risk of further offences. However, after bail was paid and proof presented on 13 November 2015, the respondent failed to establish any lawful basis for continued detention. The onus to justify det…

Source excerpt

• Unlawful Arrest
• Unlawful Detention
• Damages For Wrongful Detention
• Section 12 Constitution
• Onus Of Proof
• Bail And Release

Jimmale and Another v S (CCT223/15)

Jimmale and Another v S (CCT223/15) [2016] ZACC 27; 2016 (11) BCLR 1389 (CC); 2016 (2) SACR 691 (CC) (30 August 2016)

Court

Constitutional Court

Case number

CCT223/15

Judges

Mogoeng, Moseneke, Bosielo, Cameron, Froneman, Jafta, Khampepe, Madlanga, Mhlantla, Nkabinde, Zondo

The Constitutional Court held that the trial court materially misdirected itself by imposing a non-parole order without establishing exceptional circumstances and without inviting the parties to make submissions. The order exceeded the statutory maximum period and was prejudicial to the applicants, infringing their constitutional rights. Precedent requires that non-parole orders be made only in exceptional circumstances, with a proper evidential basis and after hearing the parties. The respondent conceded the error. Accordingly, the non-parole order was set aside, and the applicants will be e…

Source excerpt

• Non Parole Order
• Sentencing Discretion
• Section 276b Criminal Procedure Act
• Section 12 Constitution
• Exceptional Circumstances
• Fair Trial Rights