THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 1163/2020
In the matter between:

THE MINISTER OF POLICE

APPELLANT

and

SHAWN BOSMAN

FIRST RESPONDENT
TANUSHKA DAWSON

SECOND RESPONDENT
SERANO DAWSON

THIRD RESPONDENT
BRENDA CLAASEN

FOURTH RESPONDENT
CHESLYN FOSTER

FIFTH RESPONDENT
GRANT MARKLEY

SIXTH RESPONDENT
DENVER LACKAY

SEVENTH RESPONDENT
CHINE JASS

EIGHTH RESPONDENT
MORNAY JASS

NINTH RESPONDENT

Neutral citation:
Minister of Police v Shawn Bosman & Others (1163/2020)
[2021] ZASCA 172 (9 December 2021)
Coram:
SALDULKER
ADP
and
MATHOPO,
MOLEMELA
and
NICHOLLS JJA and SMITH AJA
Heard:

02 November 2021
Delivered: This judgment was handed down electronically by circulation to the
parties' 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 be at
10h00 on 09 December 2021.
Summary: Criminal law and procedure – Criminal Procedure Act 51 of 1977 –
sections 40(1)(b), (f) and (h) – unlawful arrest and detention – whether the
respondents’ arrest and detention was lawful in terms of ss 40(1)(b),(f), and (h) of the
Criminal Procedure Act 51 of 1977 – arrest and detention justified – award for
damages set aside.

__________________________________________________________________

ORDER
__________________________________________________________________
On appeal from: Eastern Cape Division of the High Court, Grahamstown (Mapoma
AJ and Revelas J, sitting as court of appeal):

The appeal is upheld with costs.
The respondents are to pay the costs of the appeal, such costs to include the
costs of two counsel.
The order of the full court is set aside and the following order is substituted:
‘1
The appeal is upheld with costs.
The judgment of the Port Elizabeth Regional Court, under case number
ECPERC 845/14, is set aside and replaced with the following order:
“The plaintiffs’ claims are dismissed with costs.”.’

__________________________________________________________________

JUDGMENT
__________________________________________________________________
Saldulker
ADP
(Mathopo,
Molemela
and
Nicholls
JJA
and
Smith
AJA concurring):

[1] This is an appeal by the appellant, the Minister of Police, against the judgment
and order of the Eastern Cape Division of the High Court, Grahamstown (Mapoma
AJ, with Revelas J concurring, sitting as a court of appeal) (the high court), in which
the arrest and detention of the respondents, Shawn Bosman (first respondent),
Tanushka Dawson (second respondent), Serano Dawson (third respondent), Brenda
Claasen (fourth respondent), Cheslyn Foster (fifth respondent), Grant Markley (sixth
respondent), Denver Lackay (seventh respondent), Chine Jass (eighth respondent)
and Mornay Jass (ninth respondent), were confirmed to be unlawful and unjustified,

and the award for damages payable by the appellant upheld.1 The high court
dismissed the appellant’s appeal with costs on 28 July 2020. This appeal is with the
leave of this Court.

[2] This appeal raises the issues as to whether the arrests of the respondents
and their subsequent detention were unlawful, including the issue of the awards
made to them with regard to damages. It is necessary to look at what unfolded on
the night of their arrest and detention.

Background Facts
[3] On or about 31 December 2013, and at around 20h00 - 21h00, the
respondents were travelling together in a black Nissan bakkie, being driven by the
first respondent, Shawn Bosman. On the same night, warrant officer Deon Goeda,
employed with the South African Police Service (SAPS), and stationed at Gelvandale
Police Station, was on duty, performing crime prevention duties, in the vicinity of
Schauderville, Port Elizabeth. He was driving a marked police vehicle, G12, a
Chevrolet Aveo, in the company of a reservist, Constable Schoenie, when he
received information at around 20h00 from radio control that a shooting incident had
occurred in Malabar, Extension 6, and that the suspects had fled in a black Nissan
bakkie. The radio information was not directed at him personally, but it was a general
radio control message to police officers. He could not remember whether any names
were reported. He reacted immediately, activated the sirens, the blue lights and
proceeded towards the shooting incident at Malabar.

[4] En route to the scene of the shooting, they received another radio
communication from a police vehicle, G8, that the latter was chasing the black bakkie
down Fitchardt Street. When Goeda turned into Fitchardt Street, he saw the bakkie
and the police vehicle that was pursuing it, drive past him at a high speed. Goeda
gave chase, overtaking the police vehicle, and pursued the fleeing bakkie. The
bakkie ignored the sirens and the blue lights and kept on driving at a high speed,
ignoring a number of traffic lights.

1 The regional court, for the Regional Division of the Eastern Cape, held in Port Elizabeth (the trial
court) ordered the appellant to pay each of the eight respondents (the third respondent abandoned
his claim) R150 000, except the fourth respondent, who was awarded the sum of R200 000.

[5] During the high speed chase, Schoenie informed Goeda that something had
been thrown out of the window of the bakkie. Ultimately, when the bakkie came to a
stop, Goeda took out his firearm, approached the bakkie, and ordered all the
occupants to disembark. There were 13 people in the bakkie, three females, seven
males and three children. The G8 and other police vehicles arrived. The passengers
and the bakkie were searched and nothing was found. Some of the passengers smelt
of alcohol. After the search, the respondents were made to lie face down on the
ground. Goeda then ordered Schoenie and Sergeant van Rensburg to search the
area where Schoenie had seen an object being thrown from the bakkie. After some
time, Van Rensburg radioed Goeda to inform him that a firearm was found with live
ammunition. Forensics and ballistic experts were called to the scene. Primer residue
testing2 was conducted on the respondents, exhibits were sealed and forwarded for
forensic analysis.

[6] Goeda testified that he questioned the respondents at the scene of the arrest,
but none of the respondents ‘owned up’ to possessing the firearm. He decided to
arrest all the respondents for further investigation, because he had received
information about the shooting incident at Malabar, and because of the fact that a
firearm was found. He explained to the respondents that he was arresting them for
the unlawful possession of a firearm, and that they could possibly be suspects in a
shooting incident at Malabar. The children were taken away by family members. One
of the respondents, Ms Claasen, a minor, was detained at Nerina One Stop Youth
Justice Centre (Nerina House).

[7] Sergeant Claasen, who was a detective in the South African Police Service,
attended the shooting incident at Malabar. He was informed by witnesses at the
shooting scene that the deceased, Ivan van Wyk, was shot twice by one Romano
Foster, and that ‘Mano’, the first, third, sixth and ninth respondents had assaulted the
deceased, and one Bradley Hartbees. He took the statements of two witnesses. The
witnesses informed him that the murder suspect had fled in a black bakkie. This
information was conveyed via radio to the other police officers who were doing

2 Primer residue is formed by the ignition of a chemical in the primer when a firearm is discharged.

patrols. Whilst he was still at the shooting incident at Malabar he heard over the radio
that the suspects had been arrested after a car chase. He then attended at the
Gelvandale police station to verify the names of the persons arrested against the
names of the suspects he had received at the shooting incident at Malabar. He
interviewed the suspects, all of whom denied being at the shooting incident. Initially,
the suspects were arrested for the illegal possession of a firearm, but later when the
investigation was completed, some were charged with murder. He received the
docket about three days after the incident with instructions to arrange for blood
samples to be taken of the respondents. Later in the year some of those who had
been arrested, namely Romano Foster, Shawn Bosman (the first respondent),
Serano Dawson (the third respondent), Grant Markley (the sixth respondent) and
Mornay Jass (the ninth respondent) were charged with the murder. However, these
charges were also withdrawn, because one of the witnesses died and the other
refused to testify.

[8] The respondents’ version was that they were travelling at night from a beach
at Summerstrand at which they had been partying. It was New Year’s Eve, they were
celebrating and had consumed large quantities of alcohol. While travelling to another
party, Shawn Bosman, who was the driver, noticed the police vehicle and fled
because he was under the influence of alcohol. All the other respondents were
asleep in the bakkie. When he finally came to a stop, police approached the bakkie
with firearms, and all the occupants, including the children alighted from the vehicle.
Primer residue tests were taken on their hands. The respondents denied any
knowledge of the shooting incident, and the possession of the firearm. The
respondents were arrested and detained. They were released from custody in the
afternoon of 2 January 2014, after blood tests were taken from them at a hospital.

[9] At the police station warning statements were taken and a docket was opened.
The respondents were charged with the illegal possession of a firearm and
ammunition. They were then detained at the Gelvandale police station, in Port
Elizabeth. Aggrieved by their arrest and detention, the respondents instituted civil
proceedings against the Minister of Police in the regional court, Port Elizabeth (the
trial court) on the grounds that the arrest without a warrant and subsequent detention
were wrongful and unlawful.

[10] It is against this background that the question of the arrest without a warrant
and the subsequent detention of the respondents must be decided. The appellant
argued that the respondents’ arrest, without a warrant, was lawful in terms of ss
40(1)(b), 40(1)(f) and/or 40(1)(h) of the Criminal Procedure Act 51 of 1977 (CPA).
The arresting officer acted in terms of s 205(3) of the Constitution. Furthermore, the
subsequent detention of the respondents was lawful and justified in terms of ss 39(3)
and 50(1) of the CPA.

[11] Section 12(1)(a) of the Constitution enshrines the right to freedom and security
of a person, which includes the right not to be deprived of freedom arbitrarily or
without just cause.3 Accordingly, where it is alleged that one has been unlawfully
detained, the State bears the burden to justify the deprivation of liberty.4

Law
[12] Section 205(3) of the Constitution provides:
‘The objects of the police service are to prevent, combat and investigate crime, to maintain
public order, to protect and secure the inhabitants of the Republic and their property, and to
uphold and enforce the law.’
In terms of the relevant provisions of the Criminal Procedure Act 51 of 1977, s 40
states that:
‘(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;
(c) . . .
(d) . . .
(e) . . .
(f) who is found at any place by night in circumstances which afford reasonable grounds for
believing that such person has committed or is about to commit an offence;
(g) . . .

3 Constitution, s 12(1)(a).
4 Zealand v Minister for Justice and Constitutional Development and Another [2008] ZACC 3; 2008
(6) BCLR 601 (CC); 2008 (2) SACR 1 (CC); 2008 (4) SA 458 (CC) para 24.

(h) who is reasonably suspected of committing or of having committed an offence under any
law governing the making, supply, possession or conveyance of intoxicating liquor or of
dependence-producing drugs or the possession or disposal of arms or ammunition.’

[13] It is instructive to consider pertinent case law in regard to this matter. In
Minister of Safety and Security v Sekhoto and another [2010] ZASCA 141; [2011] 2
All SA 157 (SCA); [2011] 2 All SA 157 (SCA), this Court succinctly said, at para 6,
that:
‘As was held in Duncan v Minister of Law and Order, the jurisdictional facts for a section
40(1)(b) defence are that (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 to in Schedule 1; and (iv) the suspicion must rest on reasonable grounds.’
And at para 28:
‘Once the jurisdictional facts for an arrest, whether in terms of any paragraph of section
40(1) or in terms of section 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. .
. .’
Paragraphs 30 and 31:
‘He proceeded to say that an exercise of the discretion in question will be clearly unlawful if
the arrestor knowingly invokes the power to arrest for a purpose not contemplated by the
legislator. This brings me back to the fact that the decision to arrest must be based on the
intention to bring the arrested person to justice. It is at this juncture that most of the problems
in the past have arisen. Some instances were listed in the judgment of the court below,
namely an arrest to frighten or harass the suspect, for example, to appear before mobile
traffic courts with the intent to expedite the payment of fines (S v Van Heerden (supra) 416g-
h); to prove to colleagues that the arrestor is not a racist (Le Roux (supra) paragraph 41); to
punish the plaintiff by means of arrest (Louw (supra) at 184j); or to force the arrestee to
abandon the right to silence (Ramphal (supra) paragraph 11). To this can be added the case
where the arrestor knew that the state would not prosecute.
The law in this regard has always been clear. Such an arrest is not bona fide but in fraudem
legis because the arrestor has used a power for an ulterior purpose. But a distinction must
be drawn between the object of the arrest and the arrestor's motive. This distinction was
drawn by Schreiner JA in Tsose and explained by G G Hoexter J in a passage quoted with

approval by this court in Kraatz (supra) at 507C-508F. Object is relevant while motive is not.
It explains why the validity of an arrest is not affected by the fact that the arrestor, in addition
to bringing the suspect before court, wishes to interrogate or subject him to an identification
parade or blood tests in order to confirm, strengthen or dispel the suspicion. It would appear
that at least some of the high court judgments under consideration have not kept this
distinction in mind.’
Further, at para 39:
‘This would mean that peace officers are entitled to exercise their discretion as they see fit,
provided that they stay within the bounds of rationality. The standard is not breached
because an officer exercises the discretion in a manner other than that deemed optimal by
the court. A number of choices may be open to him, all of which may fall within the range of
rationality. The standard is not perfection, or even the optimum, judged from the vantage of
hindsight and so long as the discretion is exercised within this range, the standard is not
breached.’
Lastly, at para 42:
‘While it is clearly established that the power to arrest may be exercised only for the purpose
of bringing the suspect to justice the arrest is only one step in that process. Once an arrest
has been effected the peace officer must bring the arrestee before a court as soon as
reasonably possible and at least within 48 hours (depending on court hours). Once that has
been done, the authority to detain that is inherent in the power to arrest has been exhausted.
The authority to detain the suspect further is then within the discretion of the court.’
In Naidoo v Minister of Police and others [2015] ZASCA 152; [2015] 4 All SA 609
(SCA), this Court stated at paras 40-41:
‘And, as was explained by Van Heerden JA in Duncan v Minister of Law and
Order 1986 (2) SA 805 (A) at 818G–H, once the jurisdictional requirements of the section
are satisfied, the peace officer may, in the exercise of his discretion, invoke the power to
arrest permitted by the law. However, the discretion conferred by section 40(1) of the CPA
must be properly exercised, that is, exercised in good faith, rationally and not arbitrarily. If
not, reliance on section 40(1) will not avail the peace officer.’
It is now settled that the purpose of the arrest is to bring the arrestee before the court for the
court to determine whether the arrestee ought to be detained further, for example, pending
further investigations or trial. (See Minister of Safety and Security v Sekhoto and
another [2010] ZASCA 141; 2011 (5) SA 367 (SCA) paras 30-3.) Thus it goes without saying
that an arrest will be irrational and consequently unlawful if the arrestor exercised his
discretion to arrest for a purpose not contemplated by law. . . .’

Further, in Raduvha v Minister of Safety and Security (Centre for Child Law as amicus
curiae) [2016] ZACC 24; 2016 (10) BCLR 1326 (CC); 2016 (2) SACR 540 (CC) para
44, the Constitutional Court stated:
‘In other words the courts should enquire whether in effecting an arrest, the police officers
exercised their discretion at all. And if they did, whether they exercised it properly as
propounded in Duncan or as per Sekhoto where the court, cognisant of the importance
which the Constitution attaches to the right to liberty and one’s own dignity in our
constitutional democracy, held that the discretion conferred in section 40(1) must be
exercised “in light of the Bill of Rights”.’
Lastly, the Appellate Division stated in Duncan v Minister of Law and Order [1986] 2
All SA 241 (A) at 243:
‘The question whether a peace officer "reasonably suspects" a person of having committed
an offence within the ambit of s 40(1)(b) of the Act is objectively justiciable. And it seems
clear that the test is not whether a policeman believes that he has reason to suspect, but
whether, on an objective approach, he in fact has reasonable grounds for his suspicion.’

[14] To sum up, the jurisdictional facts for a s 40(1)(b) defence are that (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 to
in Schedule 1; and (iv) the suspicion must rest on reasonable grounds. The test is
objective. It requires reasonable suspicion, but not certainty. The suspicion must be
based on factual grounds. Thus, the enquiry is not whether Goeda subjectively
suspected that the occupants of the bakkie had been in possession of the firearm
and were involved in the shooting incident, but whether a reasonable person in
Goeda’s position, who had the same information at his disposal would have
considered that there were reasonable grounds for suspecting that the occupants of
the bakkie had been in possession of the firearm and were involved in the shooting
incident at Malabar.

[15] The respondents were questioned on the scene about the firearm, and they
all denied any knowledge thereof. It was reasonable in the circumstances to suspect
that any one of the respondents, including Ms Claasen, the fourth respondent who
was 16 years old, a minor, and who was an occupant in the bakkie, was involved in
the shooting incident and that they had possessed an illegal firearm and ammunition.

[16] Goeda testified that once he had instructed the occupants to disembark from
the bakkie, he stood outside the police vehicle. He could not say with certainty that
he heard all of the information in respect of the shooting incident over the radio. It
does not appear from Goeda’s testimony that there was mention of any names
specifically communicated over the radio. Even if this Court were to accept that
Goeda may have heard the names of the suspects involved in the shooting incident
(and that not all of the respondents were suspects) over the radio, a firearm with live
ammunition was found to have been thrown out of the fleeing bakkie in which all the
respondents were occupants, which gave rise to a reasonable suspicion that they
were involved in the shooting incident at Malabar and the possession of the firearm.
In such circumstances it was reasonable for Goeda to arrest all the respondents, in
order to conduct further investigation in this regard, as it could not be immediately
determined which of the respondents may have potentially used the firearm in the
shooting incident. This was not unreasonable in the circumstances.

[17] Additionally, the fact that Goeda testified that he could not remember whether
he had been given the names of the suspects does not impact on the reasonableness
of the arrests. He could not release those of the respondents who were not named
as suspects, as this information had not yet been verified. Significantly, it appears
from Sergeant Claasen’s evidence that even though he had been given names of the
suspects at Malabar, he had gone to the police station to verify the information he
had received at the shooting incident.

[18] Thus, objectively considered, taking into account the conspectus of
information available to Goeda, the arresting officer, I am of the view that a
reasonable suspicion existed in the mind of Goeda that the occupants of the black
Nissan bakkie had committed an offence. This is because the information available
to Goeda was the following: he had received information via radio that a shooting
incident had occurred at Malabar; that the suspects had fled in a black Nissan bakkie;
he saw the bakkie being chased by the marked police vehicle G8 from the direction
of the shooting incident; he saw the bakkie driving in a reckless manner, skipping
traffic lights and ignoring the sirens and trying to flee from the police over a distance
between 15km to 20km; he was informed by Schoenie during the chase that

something was thrown out of the bakkie; later a revolver was found in the area that
Schoenie had observed an object being thrown from the bakkie.

[19] In the circumstances the arrests of all the respondents were lawful, including
that of the fourth respondent, Ms Claasen. In terms of the Child Justice Act 75 of
2008, an arrest of a child should be resorted to when the facts are such that there is
no other, less invasive way of securing the attendance of such child before a court.
Ms Claasen was in a bakkie fleeing from the police with occupants who were
suspected of having been involved in the shooting incident at Malabar. During the
pursuit, an object that was thrown from the bakkie, in which she was an occupant,
turned out to be a firearm. Like the other occupants, she was equally suspected of
being in possession of an illegal firearm and/or involved in the shooting incident. In
the circumstances no criticism can be levelled against the police for also arresting
the fourth respondent for further investigation. Goeda’s conduct in arresting all the
respondents was eminently reasonable, lawful and justifiable in the circumstances.

[20] In view of all the aforegoing, the jurisdictional facts for the arrest of the
respondents in terms of the subparagraphs in s 40(1) of the CPA were present, and
therefore a discretion arose. This discretion was, on a conspectus of all the evidence,
in my view, properly exercised, in good faith, rationally and not arbitrarily.5

[21] I turn to consider whether the respondents’ detention was lawful. In terms of
s 50 of the Criminal Procedure Act 51 of 1977:
‘(1)(a) Any person who is arrested with or without warrant for allegedly committing an
offence, or for any other reason, shall as soon as possible be brought to a police station or,
in the case of an arrest by warrant, to any other place which is expressly mentioned in the
warrant.
(b) A person who is in detention as contemplated in paragraph (a) shall, as soon as
reasonably possible, be informed of his or her right to institute bail proceedings.
(c) Subject to paragraph (d), if such an arrested person is not released by reason that—
(i) no charge is to be brought against him or her; or
(ii) bail is not granted to him or her in terms of section 59 or 59A,

5 Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G-H.

he or she shall be brought before a lower court as soon as reasonably possible, but not later
than 48 hours after the arrest.’

[22] Thus, s 50 of the CPA allows the police to lawfully detain an arrested person
for a period not exceeding 48 hours before bringing him/her before a court or
releasing him.6 In this case, the respondents were apprehended by the police after a
high speed chase on the night of 31 December 2013. They were questioned and all
the respondents denied being at the scene of the shooting incident at Malabar (even
though eye witnesses placed some of them at the shooting scene). Further they
denied any knowledge of the firearm that was thrown out of the bakkie. One or some
of them must have had knowledge of the firearm. This, and their version that they
had slept through the high speed chase was so improbable, that it clearly showed
that the respondents were mendacious. Thus, as it could not be established at the
time of the arrest which of the respondents had been in possession of the firearm,
they were then arrested without a warrant, on a suspicion of being in possession of
an illegal firearm and ammunition, and that they may possibly be involved in the
shooting incident at Malabar. They were taken to the Gelvandale police station where
they were detained.

[23] The validity of their arrest is not affected by the fact that Goeda, in addition to
arresting them, detained them for further investigation.7 He took them to the police
station, as he intended to interrogate or subject them to blood tests in order to
confirm, strengthen or dispel his suspicion.8 In the circumstances, there appears to
be no reason why through further investigation, ie arrest, detention and questioning
of the suspects/respondents, pertinent information could not be obtained about the
shooting incident and the firearm. In fact, this is the proper purview and mandate of
the SAPS.

[24] At the police station, the respondents were charged with the unlawful
possession of a firearm and ammunition under crime docket Gelvandale CAS
02/01/2014. In terms of the Notice of Rights the respondents were advised of their

6 Minister of Safety and Security v Sekhoto and another [2010] ZASCA 141; [2011] 2 All SA 157
(SCA); [2011] 2 All SA 157 (SCA) para 42.
7 Naidoo v Minister of Police and others [2015] ZASCA 152; [2015] 4 All SA 609 (SCA) para 41.
8 Sekhoto para 31.

rights at around 01h30 - 02h30 on 1 January 2014. The official time of detention
recorded by the police was at around 03h30 on 1 January 2014.

[25] In addition, it also appears that another docket was opened in respect of a
murder charge, in which the first, third, sixth and ninth respondents, together with
Romano Foster (who was also in the bakkie, but not a respondent in this case), were
implicated. These dockets were later combined, as the cases were ostensibly linked.
This warranted further investigation, as the charges were serious, ie murder, and the
firearm found by Schoenie and Van Rensburg was possibly the murder weapon.

[26] Constable Jacques Grobler, who was on standby for the Gang Task Team of
the South African Police Service, testified that he received the docket for further
investigation on 2 January 2014. This was for both the murder and the unlawful
possession of a firearm charges. The docket contained instructions from the senior
public prosecutor to obtain warning statements from the respondents, arrange for the
drawing of blood and processing of DNA samples, and to release them, except for
Romano Foster. The evidence linked the murder suspect (Romano Foster) to the
possession of the firearm. None of the respondents were linked. The warning
statements were taken at about 14h00 and the blood drawn at the Dora Nginza
Provincial Hospital at approximately 15h30 on the same day. The respondents were
released on 2 January 2014. When the respondents’ counsel asked Grobler why
those processes could not have been done on the 1st of January, he replied as
follows:
‘Your Worship, I only received the docket myself on the 2nd and even if we received it on the
1st I still don’t think we would have been able to release them, because we had no district
surgeon available on the 1st of January, due to the fact that it is a public holiday.’

[27] An arrest made under s 40(1)(b) of the CPA is not unlawful where the arrestor
entertained the required reasonable suspicion but intends to make further
investigation after the arrest before deciding whether to release the arrestee or
whether to proceed with a prosecution as contemplated in s 50(1) of the CPA. From
the point of view of the police, the possibility existed that the illegal possession of the
firearm that the respondents were suspected of could very well have been part of the
shooting incident at Malabar. Further investigation had to be carried out not at the

scene of the arrest but at the police station where they were detained. This would
include obtaining statements of the witnesses mentioned at the scene of the
shooting, so as to verify the information at the police station. Thus, in view of the
aforegoing, the subsequent detention of the respondents, including that of Ms
Claasen, was justified and lawful in terms of s 39(3) of the CPA.

[28] In this matter, the decision to arrest and detain the respondents could not, on
the basis of the factual circumstances of this case be wrong or inequitable. There is
no basis to suggest that Goeda or any of the other police officers involved in the
arrest or further detention had an ulterior motive, acted irrationally and arbitrarily.
There was no mala fides9 in detaining them for further investigation.

[29] The respondents were released from custody when during the further
investigation, it appeared that the arrested persons could not be linked to the
commission of the crime. Thus, no criticism can be levelled against the SAPS for
arresting and detaining all the respondents, including Ms Claasen, for further
investigation. The docket was sent to the senior public prosecutor, so as to determine
whether there was sufficient evidence to bring a charge against them. The prosecutor
informed the SAPS on 2 January 2014 that the respondents should be released, only
after blood samples for DNA testing were taken. This the SAPS duly did and the
respondents were released on 2 January 2014 at around 16h00. The respondents
were therefore in custody for less than 48 hours.

[30] The conduct of the police was within the lawful parameters of detention, as
provided for in the legislation (s 50 of the CPA). There can be little doubt that the
police officers charged with the investigations acted with alacrity and the requisite
sense of urgency after they received the docket on the morning of 2 January 2014.

[31] In my view, Grobler’s explanation as to why it was not possible to undertake
the required processes on the 1st of January 2014 was eminently reasonable.
Notwithstanding, the challenging task of having to take warning statements from all
the respondents, completing the necessary forms and transporting them to the

9 See Minister of Safety and Security v Sekhoto and another [2010] ZASCA 141; [2011] 2 All SA 157
(SCA); [2011] 2 All SA 157 (SCA) para 34.

hospital for the drawing of blood, the police officers still managed to complete the
investigations in time to release the respondents that same afternoon. It must be
appreciated that the taking of blood tests for further investigation cannot, as a matter
of course, be expected to be done on a public holiday. Therefore, it cannot be said
that the appellant failed in its duty to secure the earlier release of the respondents,
as 1 January 2014 was a public holiday. They were released as soon as it was
established that ‘prima facie proof of the arrested person’s guilt [was] unlikely to be
discovered by further investigation’.10 This was able to be done once the docket
instruction was received on 2 January 2014.

[32] Our constitutional dispensation has brought about a primacy on individual
human rights, particularly the right not to be deprived of freedom arbitrarily or without
just cause. However, to place unreasonable constraints on the SAPS would hamper
their law enforcement functioning. Even though there may be circumstances where
criticism may justifiably be levelled against the efficiency of the SAPS, the SAPS
ought to be allowed the proper scope to arrest, detain and conduct necessary
investigations, all within the lawful bounds as provided for by the legislature through,
inter alia, s 50 of the CPA. The police are thus in terms of the law entitled to arrest
and detain and release a person within 48 hours, as happened in this case.

[33] Assessed objectively, in consideration of the totality of the information
available at the time of the arrest, the arresting officer, Goeda, entertained a
reasonable suspicion which led to the lawful arrest and detention of the respondents.
In view of all the aforegoing, both the arrest and detention of the respondents by the
SAPS were lawful, beyond reproach and justified.11 It follows that the order of the
trial court must be set aside, including the award of damages to the respondents.
The appeal must succeed.

[34] In the result, the following order is made:
The appeal is upheld with costs.

10 Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 821B–C.
11 See Minister of Police and Another v Du Plessis 2014 (1) SACR 217 (SCA) para 17.

The respondents are to pay the costs of the appeal, such costs to include the
costs of two counsel.
The order of the full court is set aside and the following order is substituted:
‘1
The appeal is upheld with costs.
The judgment of the Port Elizabeth Regional Court, under case number
ECPERC 845/14, is set aside and replaced with the following order:
“The plaintiffs’ claims are dismissed with costs.”.’

_________________________
H K SALDULKER
ACTING DEPUTY PRESIDENT

.

APPEARANCES

For appellant:
F Petersen (with V Madokwe and L
Hesselman)
Instructed by:

State Attorney, Port Elizabeth
State Attorney, Bloemfontein

For respondent:

M du Toit
Instructed by:

Carol Geswint Attorneys, Port Elizabeth
Lovius Block Incorporated, 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:
09 December 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
Minister of Police v Shawn Bosman & Others (1163/2020) [2021] ZASCA 172 (09 December
2021)
Today, the Supreme Court of Appeal (SCA) upheld with costs, including the costs of two
counsel, an appeal brought by the appellant, the Minister of Police. The appeal was against
the judgment and order of the Eastern Cape Division of the High Court, Grahamstown
(Mapoma AJ, with Revelas J concurring, sitting as a court of appeal) (the high court), in which
the arrest and detention of the respondents, Shawn Bosman (first respondent), Tanushka
Dawson (second respondent), Serano Dawson (third respondent), Brenda Claasen (fourth
respondent), Cheslyn Foster (fifth respondent), Grant Markley (sixth respondent), Denver
Lackay (seventh respondent), Chine Jass (eighth respondent) and Mornay Jass (ninth
respondent), were confirmed to be unlawful and unjustified, and the award for damages
payable by the appellant upheld. The SCA thereby set aside the order of the high court, and
dismissed the respondents’ claims with costs, including their claims for damages.

The appeal raised the issues as to whether the arrests of the respondents and their
subsequent detention were unlawful, including the issue of the awards made to them with
regard to damages.

The facts of the matter were briefly as follows. On or about 31 December 2013, and at around
20h00 - 21h00, the respondents were travelling together in a black Nissan bakkie, being driven
by the first respondent, Shawn Bosman. On the same night, warrant officer Deon Goeda,
employed with the South African Police Service (SAPS), was on duty, performing crime
prevention duties, in Port Elizabeth. He received information at around 20h00 from radio
control that a shooting incident had occurred in Malabar, Extension 6, and that the suspects
had fled in a black Nissan bakkie. Goeda came upon and pursued the fleeing bakkie, which
ignored the sirens and the blue lights and kept on driving at a high speed, ignoring a number
of traffic lights. During the high speed chase, Constable Schoenie, who accompanied him,
informed Goeda that something had been thrown out of the window of the bakkie. A firearm
with live ammunition was later found pursuant to a search in the area where Schoenie had
seen an object being thrown from the bakkie. Ultimately, the respondents were arrested and
charged with the illegal possession of a firearm and ammunition. They were then detained at
the Gelvandale police station, in Port Elizabeth. Aggrieved by their arrest and detention, the
respondents instituted civil proceedings against the Minister of Police in the Port Elizabeth
Regional Court (the trial court) on the grounds that the arrest without a warrant and
subsequent detention were wrongful and unlawful.

The SCA found that assessed objectively, in consideration of the totality of the information
available at the time of the arrest, the arresting officer, Goeda, entertained a reasonable
suspicion which led to the lawful arrest and detention of the respondents. In the circumstances
the arrests of all the respondents were lawful, including that of the fourth respondent, Ms
Claasen, who was a minor (16). The respondents, including Ms Claasen, were in a bakkie
fleeing from the police with occupants who were suspected of having been involved in the
shooting incident at Malabar. During the pursuit, an object that was thrown from the bakkie, in
which she was also an occupant, turned out to be a firearm. Like the other occupants, she
was equally suspected of being in possession of an illegal firearm and/or involved in the
shooting incident. In the circumstances no criticism could be levelled against the police for
also arresting the fourth respondent for further investigation. Goeda’s conduct in arresting all
the respondents was eminently reasonable, lawful and justifiable in the circumstances.

The SCA found that the jurisdictional facts for the arrest of the respondents in terms of the
subparagraphs in s 40(1) of the Criminal Procedure Act 51 of 1977 (CPA) were present, and
therefore a discretion arose. This discretion was, on a conspectus of all the evidence, properly
exercised, in good faith, rationally and not arbitrarily. In this matter, the decision to arrest and
detain the respondents could not, on the basis of the factual circumstances of this case be
wrong or inequitable. There was no basis to suggest that Goeda or any of the other police
officers involved in the arrest or further detention had had an ulterior motive, acted irrationally
and arbitrarily. There was no mala fides in detaining them for further investigation. The
respondents were released from custody when during the further investigation, it appeared
that the arrested persons could not be linked to the commission of the crime. The respondents
were in custody for less than 48 hours. The conduct of the police was within the lawful
parameters of detention, as provided for in the legislation (s 50 of the CPA). Therefore, it could
not be said that the appellant had failed in its duty to secure the earlier release of the
respondents, as 1 January 2014 was a public holiday.

The SCA thus held that both the arrest and detention of the respondents by the SAPS were
lawful, beyond reproach and justified. It followed that the order of the trial court had to be set
aside, including the award of damages to the respondents.

~~~~ends~~~~