THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 342/2020

In the matter between:
MXOLISI MANANGA

FIRST APPELLANT

THANDO NGQOYI

SECOND APPELLANT

MAVA MANANGA

THIRD APPELLANT

and

MINISTER OF POLICE

RESPONDENT

Neutral citation: Mxolisi Mananga and Others v Minister of Police (Case
no 342/2020) [2021] ZASCA 71 (04 June 2021)
Coram:
ZONDI and MAKGOKA JJA, and EKSTEEN AJA
Heard:
7 May 2021

Delivered: This judgment was handed down electronically by circulation to
the parties’ legal representatives by email, publication on the Supreme Court
of Appeal website and release to SAFLII. The date and time for hand-down is
deemed to have been 10h00 on 04 June 2021.

Summary: Criminal law and procedure – delict – unlawful arrest and
detention – arrest, without a warrant, on a charge of assault GBH - s 40(1)(b)
of the Criminal Procedure Act 51 of 1977 – whether arresting officer held a
reasonable suspicion that appellants had committed an offence listed in
Schedule 1 to the Act  - assault, when a dangerous wound is inflicted – what
constitutes a dangerous wound.

ORDER

On appeal from: Eastern Cape Division of the High Court, Mthatha
(Ndamase AJ sitting as court of first instance):
The appeal is dismissed with costs, including the costs of two counsel.

JUDGMENT

Eksteen AJA (Zondi and Makgoka JJA concurring)

[1] The appellants were arrested on 20 March 2015 by Warrant Officer
Siphiwo Qunta (Warrant Officer Qunta) of the South African Police Service
(SAPS) without a warrant, on charges of assault with intent to do
grievous bodily harm (assault GBH) and they were detained until
23 March 2015. They contended that their arrest and subsequent detention
was wrongful and unlawful and they issued summons against the respondent
(the Minister) in the Eastern Cape Division of the High Court, Mthatha
(the high court), for damages. The Minister admitted that the appellants were
arrested without a warrant, but denied that it was wrongful or unlawful. He
contended that the arrests had been effected ‘in terms of s 40(1)(b) of the
Criminal Procedure Act 51 of 1977 as they were [reasonably] suspected of
having committed an offence referred to in Schedule 1 (assault, where a
dangerous wound is inflicted)’. The high court upheld the Minister’s defence
and dismissed the appellants’ claim. The appeal is with leave of this Court and

it was considered without oral argument, in terms of s 19(a) of the
Superior Courts Act, 10 of 2013.

[2] The events which gave rise to the arrests were as follows. On
15 March 2015, in the Ncora administrative area, in the district of Cofimvaba,
in the Eastern Cape, Ncedile Duel Sambunjana (the complainant) was
allegedly assaulted by a number of assailants, including the appellants. He
was severely beaten and sustained, inter alia, five lacerations on his head and
a fractured wrist. As a result of his injuries he proceeded first to the nearby
clinic to seek medical assistance, from where he was transported by
ambulance to the Cofimvaba Hospital. There his head wounds were sutured
and he was transferred to a hospital in East London for the assessment of his
wrist. At the East London hospital his wrist was immobilised in a plaster of
Paris cast before he was again returned to Cofimvaba. In Cofimvaba he was
admitted and kept in hospital until 19 March 2015. Upon his discharge, he
proceeded first to a doctor to obtain a J88 medical report,1 and then to the
SAPS to lay a charge of assault GBH. A docket was opened in which the
complainant recorded these events and identified his assailants.

[3] Warrant Officer Qunta, who was stationed at the Cofimvaba
Police Station, reported for duty on 20 March 2015 when the docket was
allocated to him for investigation. He perused the contents of the docket and,
as a result thereof, proceeded to Ncora to interview the complainant. He found
the complainant ‘severely injured’2 and he observed the wounds to his head
and the broken arm. During the interview the complainant identified further

1 The standard medical form commonly utilised in police investigations.
2 The terminology used by Qunta in evidence.

witnesses to the assault and, accordingly, Warrant Officer Qunta proceeded to
interview them and to take statements from them. Thereafter, he arrested the
appellants and charged them, accordingly. On Monday 23 March 2015 the
prosecutor at Cofimvaba Magistrate’s Court (the magistrate’s court) decided
to release the appellants until the other identified assailants had been arrested.
They were subsequently traced and also charged. At the time of the hearing
of the appellants’ civil claim in this matter in the high court, the criminal
proceedings in the magistrate’s court were partly heard.

[4] The basis of the appellants’ case, as pleaded, was that their arrest and
subsequent detention was unlawful because the arrest was effected without a
warrant and without ‘justifiable cause in law’. Thus, the parties agreed at the
pre-trial meeting that the only issues for determination were:
‘1. Whether the members of [the SAPS] had [reasonably] suspected that the plaintiffs had
committed an assault, where a dangerous wound was inflicted. . . .
2. Whether the plaintiffs were wrongfully and unlawfully arrested by members of [the
SAPS].
3. Whether the detention of the plaintiffs which flows from the arrest by members of the
[SAPS] was wrongful and unlawful and therefore had no justification.’

[5] As I have explained, the Minister admitted the arrests, and subsequent
detention, and contended that the arrests were justified and therefore lawful,
in terms of s 40(1)(b) of the Criminal Procedure Act (the CPA).
Section 40(1)(b) provides:
‘(1) A peace officer may without warrant arrest any person-
. . .
(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1,
other than the offence of escaping from lawful custody.’

An assault (or an assault GBH) is not listed, as such, in Schedule 1. Schedule 1
provides for an arrest without a warrant in respect of an assault only when a
dangerous wound has been inflicted.

[6] The Minister’s plea is a confession and avoidance, which attracts the
onus to prove the justification pleaded, that is, the lawfulness of the arrests in
terms s 40(1)(b), on a balance of probabilities.3 In order to discharge this onus
the Minister was required to establish: (i) that Warrant Officer Qunta is a
peace officer; (ii) that he in fact entertained a suspicion; (iii) that the suspicion
which he held was that the suspects (the appellants) had committed an offence
which is referred to in Schedule 1 (in this case, an assault in which a dangerous
wound had been inflicted); and (iv) that the suspicion rested upon reasonable
grounds.4 Once these jurisdictional facts have been established the arrestor
has a discretion whether or not to carry out an arrest.5 In the present matter the
exercise of the discretion to affect the arrest was not in dispute.

[7] Warrant Officer Qunta was a peace officer by virtue of his office. As I
have said, a charge of assault GBH had been made against the appellants and
a docket had been opened. He had before him the content of the docket which
included a statement by the complainant, in which he recounted his ordeal,
and a medical report of a doctor reflecting the injuries which he had sustained.
Having perused the docket, and acquainted himself with the contents thereof,

3 Mabaso v Felix [1981] 2 All SA 306 (A); 1981 (3) SA 865 (A); Minister of Law and Order v Hurley 1986
(3) SA 568 (A) at 589E-F; Lombo v African National Congress [2002] 3 All SA 517 (A); 2002 (5) SA 668
(SCA) para 32.
4 Duncan v The Minister of Law and Order 1986 (2) SA 805 (A) at 818G-H (Duncan); Minister of Safety
and Security v Swart [2012] ZASCA 16; 2012 (2) SACR 226 (SCA) para 20.
5 Duncan at 818H-J; Minister of Safety and Security v Sekhoto and Another [2010] ZASCA 141; [2011] 2
All 157 (SCA) paras 6 and 28.

he proceeded to interview the complainant and he observed his injuries. The
complainant, as I have said, referred him to further witnesses and he
proceeded to interview them. He manifestly held a suspicion that the
appellants had perpetrated the assault upon the complainant.6 However, s
40(1)(b) of the CPA requires more. On behalf of the appellants, it was
submitted that the Minister had failed to establish that Warrant Officer Qunta
had reasonable grounds to suspect that a dangerous wound had been inflicted
in the assault.

[8] As adumbrated earlier, an assault GBH, which is the offence of which
the appellants had been charged, is not listed in Schedule 1 of the CPA as an
offence for which an arrest without a warrant may be justified by s 40(1)(b).
Such an assault may be brought within the ambit of Schedule 1 of the CPA
when a ‘dangerous wound’ has been inflicted. In respect of an assault, the
section requires the Minister to establish, on a balance of probabilities, that
the arresting officer held the suspicion, on reasonable grounds, that such a
wound had been inflicted. It is not necessary to establish as a fact that the
inflicted wound was dangerous.7 ‘Suspicion’ implies an absence of certainty
or adequate proof. Thus, a suspicion might be reasonable even if there is
insufficient evidence for a prima facie case against the arrestee.8

6 This court has endorsed and adopted Lord Devlin’s formulation of the meaning of ‘suspicion’: ‘Suspicion
in its ordinary meaning is a state of conjecture or surmise where proof is lacking; “I suspect, but I cannot
prove”. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie
proof is the end.’ Duncan at 819I; Minister of Law and Order v Kader 1991 (1) SA 41 (A) at 50H-I; Powell
NO and Others v van der Merwe N.O and Others [2005] 1 All SA 149 (SCA); 2005 (5) SA 62 (SCA) para
36.
7 Rex v Jones 1952 (1) SA 327 (E) at 332 (Jones).
8 Duncan at 819I – 820B.

[9]   On behalf of the appellants, it was contended that the fracture to the wrist
was not a wound as envisaged in the schedule. In the interpretation of a
statutory provision language must be considered in the context in which it
appears, in the light of the ordinary rules of grammar and syntax. Where a
provision is open to more than one interpretation, a sensible meaning is to be
preferred to one that leads to insensible or unbusinesslike results.9 Whilst a
‘wound’ refers more often to a cut or laceration penetrating the skin, it is not
necessarily so. It is described in The New Shorter Oxford Dictionary (1993)
as ‘an injury to body tissue caused by a cut, a blow, hard or sharp impact . . .;
an external injury’.

[10] Applying the established approach to interpretation, no logical reason
commends itself for excluding an arrest without a warrant where a dangerous
injury (in the sense of endangering life or limb) has been inflicted to the body
of the victim with a blunt instrument, while permitting it when the injury is
inflicted with a sharp object causing a laceration. It is the potential
consequence of the injury which justifies an arrest without a warrant.
Therefore, both the fracture of the wrist and the lacerations to the head of the
complainant were wounds as envisaged in the schedule.

[11] I turn to consider whether the wounds were dangerous, as contemplated
in the schedule. In Jones, Jennett J remarked:

9 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA)
para 18.

‘It seems to me that by a dangerous wound is meant one which itself is likely to endanger
life or the use of a limb or organ. The officer effecting the arrest has only to have reasonable
grounds for suspecting that such a wound has been inflicted.’10
Whether he had reasonable grounds for his belief must be approached
objectively.11

[12] The high court held that the Minister had discharged the onus resting
on him. Regrettably, the presentation of the case on behalf of the Minister left
much to be desired. As adumbrated earlier, Warrant Officer Qunta had in his
possession a docket including a statement, presumably taken on oath, from
the complainant, and a J88 form. These documents, on their own, could have
gone some way to discharging the onus resting on the Minister, yet,
astonishingly, neither was introduced in evidence.

[13] Nevertheless, Warrant Officer Qunta testified that he first acquainted
himself with the contents of the docket. It related to a charge of assault GBH
and it identified the appellants, amongst others, as the perpetrators. He then
proceeded to Ncora to interview the complainant because he appreciated that
he could not arrest the appellants without an investigation to verify the
information contained in the docket. Upon seeing the complainant, he
perceived that he had been ‘severely injured’ and noted the fractured arm and
the injuries to his head. Warrant Officer Qunta did not describe the injuries
which he observed in any finer detail, but, as I have said, the complainant
testified that he had sustained five lacerations to his scalp, which had been

10 Jones at 236; Bobbert v Minister of Law and Order 1990 (1) SACR 404 (C) at 409E-H; De Klerk v The
Minister of Police [2018] ZASCA 45; [2018] 2 All SA 597 (SCA) (de Klerk) para 10.
11 R v Van Heerden 1958 (3) SA 150 (T) at 152D-E; Wiesner v Molomo 1983 (3) SA 151 (A) at 159B.

sutured, and that his wrist had been fractured and immobilised in a plaster
cast. These are the injuries which Warrant Officer Qunta observed.

[14] The complainant testified that, following the assault, he bled profusely
and was ‘dehydrated’, to the extent that he was unable to speak, and that he
was admitted to hospital for approximately four days. It is not apparent from
the evidence of Warrant Officer Qunta that the content of the docket revealed
the extent of the blood loss sustained. However, in explaining the reason for
the arrest, Warrant Officer Qunta testified that he decided to arrest the
appellants as a case of assault had been opened and that the complainant had
been detained in hospital for a period of four days. He considered it imperative
to look for the assailants by virtue of the ‘nature of his injuries’.

[15] As I have explained, it was the appellants’ contention, that the evidence
did not establish that Warrant Officer Qunta had reasonable grounds to
suspect that the wounds were dangerous. Warrant Officer Qunta, so the
argument went, did not refer in his evidence to Schedule 1 of the CPA nor to
s 40(1)(b) thereof and did not state that ‘[he] arrested the appellants because
[he] had a suspicion that the wounds were dangerous’. He could not have
determined, so the argument proceeded, from merely looking at the
complainant that he had sustained dangerous wounds, and he could not have
satisfied himself, as a medical officer could, that the wounds were dangerous.

[16] The appellants misconstrue the nature of the inquiry. It is not required of
a police officer to examine the wounds of a victim, as a doctor would, nor
would that be appropriate. He is merely required to have regard to the facts
and circumstances at his disposal, and, where reasonably possible, to satisfy

himself of the merit thereof. If, on a consideration thereof, there are reasonable
grounds to suspect that a dangerous wound has been inflicted, he is entitled to
arrest the suspect without first obtaining a warrant.

[17] The argument advanced on behalf of the appellants stemmed from
Jones and de Klerk. In Jones a member of the public had witnessed a fracas
in which Jones had assaulted a young girl by striking her with a sjambok. She
sustained five abrasions or bruises on the arms, a linear abrasion, 3 inches
long, on each breast and a linear abrasion-bruise, 3 inches long, on the upper
lip. The witness noted that she was bleeding from the mouth and summoned
the police. A constable hastened to the scene where Jones was pointed out to
him and was arrested. The complainant had not yet reported the matter; no
charge had been made; and a docket had not been opened. The constable had
no evidence on oath; had not seen the complainant; and had merely the say so
of the witness that Jones had assaulted the girl with a sjambok. Jennett J
concluded that: ‘He had the right to arrest [Jones] only if he suspected that the
appellant had committed one of the offences mentioned in the first schedule
to Act 31 of 191712 and it is clear that that question was not tested in
evidence’.13 The State had accordingly failed to establish the jurisdictional
facts required to justify an arrest without a warrant.

[18] In de Klerk, the Minister did not rely on an assault, where a dangerous
wound had been inflicted, as justification for the arrest. De Klerk had
contended that the complainant in that matter had owed him money. He
proceeded to confront the complainant in his office and a scuffle ensued. In

12 A predecessor to the CPA, in which s 31 read in terms identical to s 40(1)(b) of the CPA.
13 Jones at 237.

the course of the scuffle, de Klerk grabbed the complainant and pushed him
against the wall causing him to bump into the frame of a wall picture. The
glass broke and cut the complainant’s back. The cut to the complainant’s back
was sutured and a medical report was issued. The complainant laid a charge
of assault and de Klerk was arrested. De Klerk sued for damages for wrongful
arrest. No medical evidence was tendered, the report was entirely illegible,
and, because no reliance had been placed on a ‘dangerous wound’ in the
justification pleaded, the nature of the injury was not canvassed in evidence.
No reason was demonstrated for the arresting officer to have suspected that
the wound may have been dangerous, as that terms have been interpreted in
case law (ie a wound endangering life or limb).

[19] The present matter is markedly different. As I have said,
Warrant Officer Qunta appreciated that he was not entitled to arrest the
appellants until he had satisfied himself that there were reasonable grounds to
suspect that the injuries inflicted were dangerous. He had every reason to
suspect that the injuries which he observed had been inflicted by the appellants
in the alleged assault. The lacerations which he observed were to the scalp.
Whether they were inflicted by sharp objects or by blunt force, Warrant
Officer Qunta perceived these injuries to be severe. The application of such
force to the head, per definition, suggests that the injuries were not trivial and
the information at the disposal of Warrant Officer Qunta was that the
complainant had been hospitalised for a period of four days in consequence
of his injuries. Warrant Officer Qunta observed, too, the injury to the
complainant’s arm, which had been immobilised in a plaster of Paris cast, and
which the complainant advised him, had been fractured. It was an injury which
patently endangered the use of a limb.

[20] The question, whether the suspicion of the person affecting the arrest is
reasonable, must, as I have said, be approached objectively. Accordingly, the
circumstances giving rise to the suspicion must be such as would ordinarily
move a reasonable person to form the suspicion that the arrestee had
committed a first schedule offence.14 I agree with Ndamase AJ, that the
information before Warrant Officer Qunta in the docket, coupled with his own
observations of the injuries, which were objectively proved, demonstrated an
actual suspicion, founded upon reasonable grounds, that an assault, in which
dangerous wounds had been inflicted, had been committed. The Minister had
established that there were reasonable grounds to suspect that both the injuries
to the head and the fracture of the wrist, which endangered the use of the limb,
constituted dangerous wounds. The complainant’s evidence in respect of the
nature of his injuries was not challenged and Warrant Officer Qunta was not
cross-examined at all. The arrests and subsequent detention were therefore
lawful.

[21] In the result, I make the following order:
The appeal is dismissed with costs, including the costs of two counsel.

_________________________
J EKSTEEN
ACTING JUDGE OF APPEAL

14 Du Toit et al Commentary on the Criminal Procedure Act (2020) Chapter 4 at 3 (Juta electronic version);
R v Van Heerden 1958 (3) SA 150 (T) at 152D-E.

Appearances:
For Appellants:
M Jozana
Instructed by:
B Makade, Mthatha

Webbers, Bloemfontein.

For Respondent:
T M Ntsaluba SC (with N Nhantsi)
Instructed by:
The State Attorney, Mthatha

The State Attorney, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
04 June 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and
does not form part of the judgments of the Supreme Court of Appeal
Mxolisi Mananga & Others v Minister of Police (342/2020) [2021] ZASCA 71 (04 June 2021).

The Supreme Court of Appeal (SCA) today dismissed an appeal against the Minister of Police
with costs.

The appeal arose from the dismissal of the appellants’ claim for wrongful and unlawful arrest
in the Eastern Cape Division of the High Court, Mthatha. The issue before the SCA concerned
the entitlement of a police officer to arrest a suspect, without a warrant, in terms of section
40(1)(b) of the Criminal Procedure Act, 51 of 1977, on a suspicion that an assault had been
committed and a dangerous wound had been inflicted.

The appellants had been involved in an altercation relating to the use of dipping facilities for
cattle in the Ncora administrative area near Confimvaba, in the Eastern Cape. They had
allegedly assaulted the complainant, Mr Sambunjana, causing him to sustain lacerations to
his head and a fractured wrist. Mr Sambunjana was admitted to the Cofimvaba Hospital where
he was treated, and detained for a period of four days. When a charge with intent to do
grievous bodily harm was laid with the South African Police Service at Cofimvaba, Warrant
Officer Qunta proceeded to Ncora to interview Mr Sambunjana. He witnessed the injuries
sustained and formed the impression that Mr Sambunjana had been severely injured to the
head and arm. He accordingly arrested the appellants, without a warrant, and charged them
with assault with intent to do grievous bodily harm.  They were detained for three days, before
appearing in court.

The SCA held that an arrest, without a warrant, in terms of section 40(1)(b) of the Criminal
Procedure Act was permitted under Schedule 1 to the Act where an arresting officer held a
reasonable suspicion that a dangerous wound had been inflicted. It considered that by
‘dangerous wound’ is meant an injury endangering life or limb and that Warrant Officer Qunta
reasonably suspected that the appellants had inflicted such injuries to Mr Sambunjana. It
accordingly held that the High Court, Mthatha, had correctly concluded that the arrest was
lawful.

~~~~ends~~~~