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# South Africa: North West High Court, Mafikeng [![Support
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6**

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##  Longman v Minister of Police (20/2023) [2025] ZANWHC 6 (15 January 2025)

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**IN THE HIGH COURT OF SOUTH AFRICA**

**NORTH WEST DIVISION - MAHIKENG**



**CASE NO: 20/2023**

  

Reportable: YES/**NO**

Circulate to Judges: YES/**NO**

Circulate to Magistrates: YES/**NO**

Circulate to Regional Magistrates: YES/**NO**



**In the matter between:**



**FELICIA LONGMAN
PLAINTIFF**



and



**MINISTER OF POLICE
DEFENDANT**



**DATE JUDGMENT RESERVED   :           29 NOVEMBER  2024**



**DATE OF JUDGMENT                   :           15 JANUARY  2025**



This judgment was handed down electronically by circulation to the parties'
representatives _via  _email. The date and time for hand-down is deemed to be
**15 January 2025 at 10h00.**



 **ORDER**

  

(i)             The defendant is ordered to pay the plaintiff the amount of R
40.000.00 together with interest at the prescribed rate from date of service
of summons to date of payment.



(ii)        The defendant shall pay the costs of suit on a party and party
scale as prescribed in the High Court tariff.

  

 **JUDGMENT**

  

**REDDY J**



_Introduction_



[1]        The plaintiff instituted a delictual action against the defendant,
the Minister of Police, pursuant to her warrantless arrest, for her unlawful
arrest and detention from 12 May 2022 (at approximately 10h00) to 13 May
2022(at approximately 11h00). The action was defended. The defendant pleaded
that the arrest of the plaintiff was justified in terms of the provisions of
section 40(1)(b) of the Criminal Procedure Act 51 of 1977, ("the CPA"). There
was no separation of liability and quantum within the context of Rule 33(4) of
the Uniform Rules of Court, ("the Rules"). Consequentially, the action
encompassing lability and quantum were determined conjunctively.



      _The defendant 's case_



[2]        On 12 May 2022, Sergeant Jacobs, ("Jacobs"), received Vryburg
docket bearing CAS 57/05/2022. The docket included the statement of the
complainant, Catherine Tabe, ("Tabe") a medico legal report and the
investigation diary, ("the SAPS 6"). Jacobs perused same. Jacobs contended
that certain aspects of the Tabe's statement warranted further investigation
to determine "really what happened."



[3]     To achieve this purpose, Jacobs proceeded to Tabe's premises where
further investigation was conducted. Significantly, no additional statement
was deposed to by Tabe. The relevance of same will become apparent. Tabe then
pointed out the suspects which included the plaintiff. After introducing
himself to the suspects (including the plaintiff), Jacobs executed the arrest
of all suspects in the presence of female Sergeant English.  The three accused
were arrested on allegations of kidnapping and assault with intent to do
grievous bodily harm. Jacobs then read the rights of the accused in terms of
the section 35 of the Constitution. The accused were then transported to the
SAPS at Vryburg.



[4]     The suspects were detained in the holding cells.  According to the
cell commander, the female cells were inspected and found to be in humane
state to serve the purposes of detention without starving off the rights of
detainees.



       _The plaintiff 's case   _



[5]       The plaintiff confirms her arrest and that of her two cohorts. It is
so that all three were transported to the SAPS Vryburg, where the usual
processing took place. This included the taking of fingerprints and culminated
with the constitutional rights of all being explained. Thereafter, they were
escorted to the holding cells. Whilst the holding cells was not occupied, it
was not fit for humane detention.



[6]        The conditions of detention can be succinctly set out as follows.
A terrible odour permeated the cell which emanated from a leaking latrine,
which flowed onto the cell floor.  When the latrine was to be used, there was
no privacy.  Additionally, the cell was cold and there was an absence of hot
water. The plaintiff was given a blanket with no sponge. Furthermore, the
shower was not working.  



     _ __Legal principles_



 [7]       The defendant admitted the arrest and detention. Consequently, the
defendant bore the onus of proof. This then required of the defendant to
justify the lawfulness of the arrest and the subsequent detention of the
plaintiff on a balance of probabilities. This much was conceded to by counsel
for the defendant. This concession was correctly made and in accordance with
the principles enunciated in _Minister of Law and Order and Others v Hurley
and Another_ [[1986] SA 568[A]](/cgi-bin/LawCite?cit=%5b1986%5d%20SA%20568
"View LawCiteRecord") where the following was said:



"An arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems to be fair and just to require that the
person who arrested or caused the arrest of another person should bear the
onus of proving that his action was justified in law."



[8]       In _JE Mahlangu and Another v Minister of Police_   [2021 ZACC
10](/cgi-bin/LawCite?cit=2021%20ZACC%2010 "View LawCiteRecord") at paragraph
32 this position was reiterated as follows:



"It follows that in a claim based on the interference with the constitutional
right not to be deprived of one's physical liberty, all that the plaintiff has
to establish is that an interference has occurred. Once this has been
established the deprivation is unlawful and the defendant bears the onus to
prove that there was a justification for interference.''



[9]        A good point of departure would be to examine the purport of the
empowering provision namely, section 40[1] [b] of the CPA as pleaded by the
defendant. It reads as follows:



[1] A peace officer may without 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.'



[10]        In _Minister of Safety and Security v Sekhoto and Another_
[[2010] ZASCA 141](/cgi-bin/LawCite?cit=%5b2010%5d%20ZASCA%20141 "View
LawCiteRecord"),  [[2011] 2 All SA 157[SCA]](/cgi-
bin/LawCite?cit=%5b2011%5d%202%20All%20SA%20157 "View LawCiteRecord"), 2011[5]
SA 367[SCA] at paragraph 6 the SCA said the following in respect of the
jurisdictional requirements of the section 40[1][b] of the CPA:



"As was held in Duncan v Minister of Law and Order, the jurisdictional facts
for a defence are that [i] the arrestor must be a peace officer; [ii] the
arrestor must entertain the suspicion must be that the suspect[arrestee]
committed an offence referred to in schedule 1; and [iv] the suspicion must
rest on reasonable grounds. '



_Discussion_



[11]      The warrantless arrest of the plaintiff according to Jacobs was
founded on two statements that were contained in the docket. The first of Tabe
and the medico legal report.



[12]      The evidence of Jacobs was unsatisfactory in material aspects. The
statement of Tabe given its broad sweeping allegations and ambiguity should
have necessitated further investigation prior to the arrest of the plaintiff.
The contention of Jacobs that within the context of criminal process further
investigation undoubtedly can continue is unquestionably. The jurisdictional
requirements that govern an arrest are markedly different from the
investigative process that may precede and continue post the execution of an
arrest.  In the circumstances of this case, the arrest of the plaintiff was to
be founded on statutory delineated jurisdictional grounds. In this regard, the
failure of Jacobs to have recorded a supplementary affidavit from Tabe is
telling. More peculiarly, Jacobs did not find an additional affidavit
explicating  these events.  See: _Minister of Safety & Security v Sekhoto_
[2011 (1) SACR 315](/cgi-bin/LawCite?cit=2011%20%281%29%20SACR%20315 "View
LawCiteRecord") at page 327, para 29



[13]      It is a hallow principle of our law that the jurisdictional
requirements relied on by the section 40(1)(b) of the CPA must be shown to
exist at the time Jacobs executed the arrest on the plaintiff. _Ex post facto_
considerations cannot be applied to justify the arrest retrospectively.



[14]      It is common cause that Jacobs is a peace officer in the employ of
the defendant. Further, it is indisputable that assault with intent to do
grievous bodily harm and kidnapping are offences cited in Schedule 1 of the
CPA.



[15]      On the conspectus of the evidence that was before Jacobs, Jacobs
could not have reasonably suspected that the plaintiff to have committed an
offence referred to in Schedule 1. This was a fissure in the case for the
defendant. The statement of Tabe at best was vague. It failed to delineate
essential details of the alleged perpetrators.  The repetitive use of the word
_"__**they "**_ was woefully inadequate to have inferred alleged unlawful on
the part of all the suspects.



[16]      Moreover, as can be gleamed from the statement the details that
surrounded the alleged commission of these offences, are not described with
sufficient particularity. Simply put, the roles that were played by each of
the suspects are not described. Notably, in the Tabe's report to the examining
medical examiner, she stated that whilst walking in the street she was
attacked by two women. Jacobs effected an arrest on three women.



[17]      Jacobs attempted to reinforce his decision to arrest the plaintiff
by referring to certain conversations that he may or may not have had with the
plaintiff. Extra curial statements with the plaintiff as then accused with
regards her presence or absence at the crime scene is generally inadmissible.
Even if these statements were admissible and accurate it is peculiar that the
plaintiff's exculpatory statements denying any involvement in any criminal
allegations were not afforded due weight. Peace officers who act within the
purview of section 40[1][b] of the CPA should investigate exculpatory
explanations by a suspect before they can form a suspicion. See: _Louw and
Another v Minister of Safety and Security and Others_ 2006 [2] SACR 178 [T at
184, _Liebenberg v Minister of Safety and Security_ 2009, ZAGPPHC 88]. To this
end, when the plaintiff attempted to proffer an explanation, she was dismissed
by Jacobs.



[18]     When an arresting officer has a suspicion, investigative steps should
be pursued to determine the reasonableness of the suspicion. [_R v Heerden_
1958 [3] SA 150 71.



[19]     In _Mabona v Minister of Justice_ 1988 [2] SA 654 SEC the following
was stated as regards suspicion:



'the reasonable man will therefore analyse and assess the quality of
information at his disposal critically and will not accept it lightly or
without checking it where it can be checked. It is only after an examination
of this kind that he will allow himself to entertain a suspicion that will
justify the arrest. This is not to say that the information at his disposal
must be of a sufficiently high quality and cogency to engender in him a
conviction that the suspect is in fact guilty. The section requires suspicion
not certainty. However, the suspicion must be based on solid grounds.' See:
_Brits v Minister of Police and Another_ (756/2020) [[2021] ZASCA 161](/cgi-
bin/LawCite?cit=%5b2021%5d%20ZASCA%20161 "View LawCiteRecord") (23 November
2021).



[20]      On application of the law to the facts it could not be found Jacobs
had a suspicion of any crime been committed based on the evidence at his
disposal at the time the plaintiff was arrested.  On the conspectus of the
evidence, there existed no suspicion that the plaintiff committed an offence
referred to in Schedule 1 of the CPA.  The arrest of the plaintiff in the
absence of a suspicion axiomatically renders the arrest unlawful. That signals
the death knell for the case for the defendant as the jurisdictional factors
set out in section 40[1][b] of the CPA are symbiotic in nature.



  _Quantum_



[21]      In _Visser & Potgieter, Law of Damages __Visser & Potgieter, Law of
Damages_, 3ed Pages 545 - 548, the following factors are listed that can play
a role in the assessment of damages:



"In deprivation of liberty the amount of satisfaction is in the discretion of
the court and calculated _ex aequo et bona_. Factors which can play a role are
the circumstances under which the deprivation of liberty took place; the
presence or absence of improper motive or 'malice' on the part of the
defendant; the harsh conduct of the defendants; the duration and nature (e.g.
solitary confinement or humiliating nature) of the deprivation of liberty; the
status, standing, age, health and disability of the plaintiff; the extent of
the publicity given to the deprivation of liberty; the presence or absence of
an apology or satisfactory explanation of the events by the defendant; awards
in previous comparable cases; the fact that in addition to physical freedom,
other personality interests such as honour and good name as well as
constitutionally protected fundamental rights have been infringed; the high
value of the right to physical liberty; the effects of inflation; the fact
that the plaintiff contributed to his or her misfortune; the effect an award
may have on the public purse; and, according to some, the view that the _actio
iniuriarum_  also has a punitive function".



[22]      There is no underscoring, that each case will be considered on its
own unique particularities. The conditions in which the plaintiff was detained
have been alluded to. It needs no regurgitation.  



[23]      In the _Minister of Safety and Security v Tyulu_ _Minister of Safety
_(327/08)   [[2009] ZASCA 55](/cgi-bin/LawCite?cit=%5b2009%5d%20ZASCA%2055
"View LawCiteRecord") (27 May 2009) Bosielo JA  postulated on  issues a court
should take into consideration when assessing what would be an appropriate
amount of damages in matters of this nature as follows:



"In the assessment of damages for unlawful arrest and detention, it is
important to bear in mind that the primary purpose is not enrich the aggrieved
party but to offer him or her some much needed solatium for his or her injured
feelings. It is therefore crucial that serious attempts be made to ensure that
the damages awarded are commensurate with the injury inflicted. However, our
courts should be astute to ensure that the awards they made for such
infractions reflect the importance of the right to personal liberty and the
seriousness with which any arbitrary deprivation of personal liberty is viewed
in our law. I readily concede that it is impossible to determine an award of
damages for this kind of injuria with any kind of mathematical accuracy.
Although it is always helpful to have regard to awards made in previous cases
to serve as a guide, such an approach if slavishly followed can prove to be
treacherous. The correct approach is to have regard to all of the facts of the
particular case and to determine the quantum of damage on such facts (Minister
of Security and Seymour 2006 (6) SA 320 (SCA) at para 17; Rudolph and Others v
Minister of Safety and Security and Another   [2009 (5) SA 94](/cgi-
bin/LawCite?cit=2009%20%285%29%20SA%2094 "View LawCiteRecord") (SCA)   [[2009]
ZASCA 39](http://www.saflii.org/za/cases/ZASCA/2009/39.html "View Case") paras
26-29)."



[24]      Paramount in the exercise of a court's discretion judicial
discretion is balance. Regarding balance Holmes J (as he then was) stated in
_Pitt v Economic Insurance Company Limited_ 1957 (3) 284 (D) at 287E that:



"The court must take care to see that its award is fair to both sides - it
must give just compensation to the plaintiff, but it must not pour out
largesse from the horn of plenty at the defendant's expense." See: _De Jongh v
Du Pisani N.O.   [2005 (5) SA 547](/cgi-
bin/LawCite?cit=2005%20%285%29%20SA%20547 "View LawCiteRecord")_ _(SCA) para
60._



[25]     In terms of section 12(1) of the Constitution, everyone has the right
to freedom and security of person. The right to freedom and security is
further sub classified in section 12(1) (a) -(e). There is no underscoring
that freedom is a precious right that must be jealously guarded. See:
_Thandani v Minister of Law and Order  _1991[1] SA 702 [E] at 707, _Masisi v
Minister of Safety and Security_  2011 [2] SACR. In _Olgar v Minister of
Safety and Security_ , 2008 JDR 1582 (E) at paragraph 16, Jones J observed
that a just award of damages should express the importance of the
constitutional right to individual freedom. At the same time, the award should
properly consider the facts of the case, the personal circumstances of the
victim, and the nature, extent, and degree of the affront to his or her
dignity and sense of personal worth. See: _Motladile v Minister of Police_
(414/2022) [[2023] ZASCA 94](/cgi-bin/LawCite?cit=%5b2023%5d%20ZASCA%2094
"View LawCiteRecord"); [2023 (2) SACR 274](/cgi-
bin/LawCite?cit=2023%20%282%29%20SACR%20274 "View LawCiteRecord") (SCA) (12
June 2023) at paragraph 22, Masiteng v Minister of Police (A139/2022) [[2023]
ZAFSHC 175](/cgi-bin/LawCite?cit=%5b2023%5d%20ZAFSHC%20175 "View
LawCiteRecord") (12 May 2023) at paragraph 13.



[26]     Viewing the facts of the case, as well as recent awards made by our
courts in comparable cases and the steady decline in the value of money, I
believe that justice would be done were I to award the plaintiff an amount of
R40 000.00, (forty thousand rand).



          _Costs_   



[27]      The plaintiff should not be rendered out of pocket due to pursuing
this matter, the normal rule on the issue of costs should apply. Although the
quantum falls within the jurisdiction of the Magistrate's Court, the plaintiff
was, in my view, justified in seeking redress in the High Court. It is
important that our courts accord to the deprivation of a person's liberty when
determining the scale on which to award costs. In _De Klerk v Minister of
Police_   [[2018] ZASCA 45](/cgi-bin/LawCite?cit=%5b2018%5d%20ZASCA%2045 "View
LawCiteRecord");  [[2018] 2 All SA 597(SCA)](/cgi-
bin/LawCite?cit=%5b2018%5d%202%20All%20SA%20597 "View LawCiteRecord"); [[2018]
(2) SACR 28(SCA)](/cgi-bin/LawCite?cit=%5b2018%5d%20%282%29%20SACR%2028 "View
LawCiteRecord") paras 18 & 55, which also concerned an unlawful arrest and
detention, the Supreme Court Appeal contended that although the total quantum
awarded [ R30 000] is far below the jurisdiction of the High court, the
appellant was justified in approaching the high court because the matter
concerned the unlawful deprivation of his liberty. See: _Motladile v Minister
of Police  _(414/2022) [[2023] ZASCA 94](https://www.saflii.org/cgi-
bin/LawCite?cit=%5B2023%5D%20ZASCA%2094);  [2023 (2) SACR 274](/cgi-
bin/LawCite?cit=2023%20%282%29%20SACR%20274 "View LawCiteRecord") (SCA) (12
June 2023) at para 26.   Accordingly, I will award costs on the High Court
scale.



            _Order_



[28]      I accordingly make the following order:



(i)    The defendant is ordered to pay the plaintiff the amount of R 40.000.00
together with interest at the prescribed rate from date of service of summons
to date of payment.



(ii)      The defendant shall pay the costs of suit on a party and party scale
as prescribed in the High Court tariff.





**A REDDY**

**JUDGE OF THE HIGH COURT OF SOUTH AFRICA,**

**NORTH WEST DIVISION,**

**MAHIKENG**





_**APPEARANCES**_



Date of Hearing:                                                       05
November 2024



Date written heads submitted by plaintiff:           28 November 2024  



Date written heads submitted by defendant:      28 November 2024



Date of Judgment:                                                   15 January
2025



Counsel for Plaintiff:                                                Adv D.
Smith  

Attorney for Applicant:                                             Nienaber &
Wissing Attorneys

                                                                                    10 Tillard Street 

                                                                                     Mahikeng    



Counsel for Defendant:                                           Adv Lehabe



Attorneys for Defendant                                         State
Attorneys

                                                                                    Cnr Sekame Road 

                                                                                    1st Floor, East Gallery

                                                                                    Megacity Complex 

                                                                                    Mmabatho



  

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