Mkhonza v Minister of Police (44821/21) [2025] ZAGPJHC 513 (27 May 2025)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
Number: 44821/21
(1)
REPORTABLE: YES
/ NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED: YES/NO
27/05/2025
In
the matter between:
Mangena
Azon Mkhonza
Plaintiff
and
Minister
of Police
Defendant
Delivered:
This judgment was prepared and
authored by the Judge whose name is reflected and is handed down
electronically by circulation to
the parties’ legal representatives
by email and by uploading it to the electronic file of this matter on
CaseLines. The date and
time for hand-down is deemed to be 10:00 on
27 May 2025
JUDGMENT
THACKWELL AJ
Introduction
[1]
This is an action for damages arising from
what the plaintiff says was his unlawful arrest and detention. The
plaintiff, Mr. Mangena
Azon Mkhonza, seeks damages against the
Minister of Police for his arrest on 28 March 2019 and subsequent
detention until 14 August
2020, a period of approximately 16 months
and 17 days.
[2]
The plaintiff was arrested on suspicion of
having raped a minor. He was detained first at Primrose Police
Station and subsequently
at Boksburg Prison. The plaintiff remained
in detention from his arrest until he was released on 14 August 2020.
The charges were
withdrawn on 14 July 2020, one month prior to his
release from detention.
[3]
The central issues for determination are:
a.
Whether the plaintiff’s arrest on 28
March 2019 was unlawful;
b.
Whether his detention from 28 March 2019
until 14 July 2020 was unlawful;
c.
Whether the defendant is liable for the
plaintiff’s continued incarceration from 14 July 2020 until his
eventual release on
14 August 2020; and
d.
If liability is established, the quantum of
damages to be awarded.
[4]
The matter turns largely on whether
Sergeant Mthunzi Mehlomakulu, the arresting officer, had reasonable
grounds for suspecting that
the plaintiff had committed the alleged
offence, and whether the continued detention was justified. The
plaintiff contends that
the arrest was arbitrary and based on
insufficient grounds, while the defendant maintains that the arrest
was lawful under Section 40(1)(b) of the Criminal Procedure Act 51 of
1977 and that the subsequent detention was justified given the
serious nature of the alleged offence. With that, I turn to a brief
overview
of the applicable legal principles.
Applicable legal principles
[5]
The starting point is that any arrest
without a warrant is prima facie
unlawful. Once such an arrest is established, the onus rests on the
defendant to prove its lawfulness. It is common cause in this
case
that the plaintiff was arrested without a warrant. Accordingly, the
defendant bore the onus of demonstrating the lawfulness
of the
plaintiff’s arrest.
[6]
For an arrest under Section 40(1)(b) to be
lawful, the following requirements must be met:
a.
the arrestor must be a peace officer,
b.
the arrestor must entertain a suspicion,
c.
the suspicion must be that the suspect
committed a Schedule 1 offence, and
d.
the suspicion must rest on reasonable
grounds.
[7]
The defendant’s witness, Sergeant
Mehlomakhulu, was a peace officer at the time he arrested the
plaintiff. This is not in
dispute. It can also be accepted that
Sergeant Mehlomakhulu – subjectively at least –
entertained a suspicion that
the plaintiff committed a Schedule 1
offence. It is the fourth element (d) that requires an in-depth
consideration and on which
this case turns.
[8]
The test for reasonable suspicion was
comprehensively articulated in Mabona
and another v Minister of Law and Order and others
(1988 (2) SA 654) at 658E-H:
“The
test of whether a suspicion is reasonably entertained within the
meaning of s 40(1)(b) is objective (S v Nel
and
Another 1980
(4) SA 28 (E) at
33H). Would a reasonable man in the second defendant’s position and
possessed of the same information have considered that there
were
good and sufficient grounds for suspecting that the plaintiffs were
guilty of conspiracy to commit robbery or possession
of stolen
property knowing it to have been stolen? It seems to me that in
evaluating his information a reasonable man would bear
in mind that
the section authorises drastic police action. It authorises an arrest
on the strength of a suspicion and without the
need to swear out a
warrant, ie something which otherwise would be an invasion of private
rights and personal liberty. The
reasonable man will therefore
analyse and assess the quality of the information at his disposal
critically, and he 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 which will
justify an arrest. This is not to say that the information at his
disposal must be of sufficiently
high quality and cogency
to engender in him a conviction that the suspect is in fact guilty.
The section requires suspicion
but not certainty. However, the
suspicion must be based upon solid grounds. Otherwise, it will be
flighty or arbitrary, and not
a reasonable suspicion.
[9]
The law requires that before making an arrest, an officer must do
more than simply form an initial suspicion. The suspicion
must be
reasonable when viewed objectively. Practically, this means the
arresting officer needs to take concrete steps to validate
their
initial suspicion by investigating the essential elements and facts
potentially relevant to the particular offence. The officer
must
examine and consider the veracity of the information she or he is
presented with at the time. Only after conducting such an
investigation can an officer properly conclude that their suspicion
is reasonable and that sufficient grounds exist to make the
arrest.
Absent such an investigation leading to the conclusion that the
suspicion is based on ‘solid grounds’, an officer’s
initial suspicion will not meet the test that their suspicion is
based on reasonable grounds.
[10]
Suspicion alone is insufficient. It must be
transformed into a reasonable suspicion through active investigation
of the available information and circumstances considering
– in
parallel – the severity of the invasion of a person’s
rights when arrested without a warrant. What this
investigation
entails will differ from case to case and there are no set
requirements. The requirements in each instance will be
derived from
the particular set of circumstances in play.
[11]
I now turn to the evidence presented in
this case.
Evidence
[12]
The plaintiff testified that on 28 March
2019, he was at his home in Marathon Squatter Camp, where he lived
with his son, Amos Mkhonza.
At the time, he was engaged in his
business of selling cooked meat from his home premises.
[13]
According to his testimony, two police officers, a female
officer and a male officer whom he later learned was Sergeant
Mehlomakulu,
arrived at his home accompanied by a woman and a child.
The plaintiff stated that he did not know either the woman or the
child
prior to this encounter.
[14]
The plaintiff testified that when the officers arrived, the
female officer did not speak, but the male officer (Sergeant
Mehlomakulu)
asked him if he knew the woman accompanying them. When
the plaintiff replied that he did not, the officer informed him that
this
woman alleged he had raped her child. According to the
plaintiff, he was arrested without being asked any substantive
questions
about the alleged offence, and despite his protests of
innocence.
[15]
The plaintiff’s son, Amos Mkhonza (37),
corroborated, to a large extent, his father’s version of events. He
testified that on the
day of the arrest, he was inside their
residence when his father called him to inform him that he was being
arrested. Amos’s evidence was that his father was a good man
who was fond of children and had helped raise four children of his
own. He testified
that he was shocked by the allegations against his
father, stating, in essence, that it was unthinkable that his father
could have
done what he was accused of, especially given that they
were always working together in their business. He described their
business
as successful, particularly busy on weekends, and explained
that it involved buying meat at City Deep early in the mornings, and
then returning home to prepare and sell it.
[16]
The plaintiff testified that after his arrest, he was taken to
Primrose Police Station where he was detained. He was later taken
to
court where bail was denied. The plaintiff remained in detention at
Boksburg Prison.
[17]
The plaintiff provided a harrowing account of his time in
detention. He described being housed in a cell with approximately 60
other
inmates in unsanitary conditions where toilets were frequently
blocked. He witnessed violence among inmates, including the stabbing
of an inmate who was next to him and another inmate being struck on
the head with a blunt object. As a non-smoker at the age of
66 (born
in 1953), he suffered from headaches and chest pains for about three
weeks due to the various substances being smoked
in the cell. He also
stated that the food was inadequate.
[18]
The plaintiff also testified about the impact his arrest and
detention had on his life. He stated that after his release, he
discovered
that people in his community viewed him differently, with
some referring to him as dangerous to children. This stigma followed
him to his home village in Mpumalanga. His family suffered
financially during his incarceration, with his wife having to return
to her parents’ home due to lack of support, and the family having to
sell his car to make ends meet. The plaintiff’s business,
which had
been providing income for his family, was lost.
[19]
My impression of the oral evidence adduced
by both the plaintiff and his son was that it was genuinely given. I
have no reason to
doubt it.
[20]
Sergeant Mehlomakulu testified that he was the investigating
officer in the case. He stated that at the time of the incident, he
had been employed by the South African Police Service as a sergeant
for nine years and had previously worked as a police officer
for
seventeen years, with eleven years of experience in cases involving
the rape of minor children.
[21]
Sergeant Mehlomakulu testified that on 28 March 2019, he had
read and considered the police docket before going to arrest the
plaintiff.
His testimony about the docket and the competency of his
investigation was not compelling. Two points, in particular, struck
me.
Despite reference in the docket to the alleged victim and her
friend (Khethiwe) having been raped by the same man, Sergeant
Mehlomakulu
did not seek to question Khethiwe. This was a critical
omission. Moreover, there was also reference in the docket to threats
by
the victim’s mother to beat her (the victim) in relation to
the incident. The purpose behind these alleged threats is not
clear
to me. However, what is clear is that these alleged threats and the
reasons behind them should have been properly investigated.
Sergeant
Mehlomakulu conceded that he did not interrogate this issue prior to
arresting the plaintiff. This was another critical
omission.
[22]
These two omissions alone make Sergeant
Mehlomakulu’s investigation inadequate. It is legally untenable
to take the drastic
step of arresting someone when there are obvious
and relatively simple further lines of investigation that should have
been done
first and could have been done expeditiously (and which may
have unravelled the arresting officer’s initial suspicions).
[23]
More generally, I did not find Sergeant Mehlomakulu to be an
impressive witness. He was defensive and came across as evasive and,
at times, irritable. The defendant chose not to call the female
officer who had accompanied Sergeant Mehlomakulu to the plaintiff’s
residence on 28 March 2019. The defendant’s case, in large
part, stands and falls by Sergeant Mehlomakulu’s evidence.
[24]
Mr. Matsobane, the acting head of the Boksburg Medium A
Correctional Centre, testified about the plaintiff’s detention. He
confirmed
that according to computer records, the plaintiff was
admitted to the prison on 29 March 2019 as a remand detainee based on
a J7
form (warrant of detention).
[25]
Mr. Matsobane testified that the prison received a warrant of
liberation dated 14 July 2020 on 13 August 2020. He confirmed that
the plaintiff was only released on 14 August 2020 at 13:55, after
verification of the warrant with the court.
Defendant’s pleading
objection
[26]
Before addressing my substantive findings
on liability, I first deal with the defendant’s contention that
the plaintiff’s
case regarding the arresting officer’s
failure to properly exercise his discretion was never pleaded. This
contention is
unsustainable for three reasons. Firstly, on the view I
take, Sergeant Mehlomakulu was never vested with a discretion
to arrest because the required (objectively defensible) suspicion
never
existed. Secondly, the defendant led evidence about the
investigating officer’s conduct and his decision-making process
designed
to demonstrate that Sergeant Mehlomakulu’s conduct was
in keeping with the required legal standards. I do not think a
defendant
can lead a case in defence and, at the same time, say that
the case it seeks to defend and lead evidence on was not properly
articulated
in the pleadings. Thirdly, if the defendant had genuine
concerns about the case it was supposed to meet, it should have made
use
of the remedies available to it through Rule 23 of the Uniform
Rules of Court at the outset of the matter.
Findings on liability
[27]
After careful consideration of the evidence
presented, I make the following findings.
[28]
The arrest of the plaintiff on 28 March 2019 was unlawful.
Sergeant Mehlomakulu did not conduct an adequate investigation to
transform
his initial suspicions into an objectively defensible
suspicion as required by law. Accordingly, the
defendant has not discharged the onus of showing that the
requirements of section 40(1)(b) of the Criminal Procedure Act were
met in respect of having reasonable grounds for suspicion. Relatedly,
the evidence in this case demonstrates that Sergeant Mehlomakulu
failed in his public law duty not to unnecessarily violate the
plaintiff’s right to freedom. The evidence also reveals that
–
at no stage – during the plaintiff’s detention did
Sergeant Mehlomakulu make any attempt to progress the inadequate
initial investigations, nor did he consider whether the continued
detention of the plaintiff was appropriate.
[29]
The evidence of Mr. Matsobane, the Correctional Services Officer,
established that although the plaintiff’s case was
withdrawn on 14
July 2020, the warrant of liberation only reached the prison on 13
August 2020, resulting in the plaintiff’s continued
detention for an
additional month. The defendant provided no real explanation for this
significant delay. The failure to promptly
communicate the withdrawal
of charges against the plaintiff to the prison authorities resulted
in his continued unnecessary detention,
in violation of his
constitutional right to freedom and security of person.
[30]
The test of causation established in
Minister of Police v Skosana
1977 (1) SA 31 (A) is relevant in this case. But for the unlawful
arrest of the plaintiff on 28 March 2019, none of the subsequent harm
would
have materialised. The plaintiff would never have been detained
at Primrose Police Station, never transferred to Boksburg Prison,
never subjected to the degrading conditions of overcrowded cells,
never separated from his family and business, and never stigmatised
in his community as a suspected child molester. The heavy-handed
arrest of an elderly man based on flimsy evidence represents exactly
the kind of arbitrary state action that our Constitution prohibits. I
am satisfied that every day of the plaintiff’s 505-day ordeal
flows
directly from that initial unlawful act. The causation is clear,
direct, and unbroken in my opinion.
Findings on damages
[31]
Having determined the liability issue, I now turn to the
question of the appropriate quantum of damages.
[32]
The plaintiff has claimed general damages in the amount of
R30,300,000.00, calculated at R60,000.00 per day for a period of
approximately
505 days (from 28 March 2019 to 14 August 2020).
[33]
In considering an appropriate award, I am guided by the
principle articulated in The Minister of Safety and Security v
Seymour 2006 (6) SA 320 (SCA) at paragraph 20:
“Money can
never be more than crude solatium for the deprivation of what in
truth can never be restored and there is no empirical
measure for the
loss.”
[34]
As explained in Minister
of Safety and Security v Tyulu 2009 (5)
SA 85 (SCA) at paragraph 26:
“In the assessment of damages
for unlawful arrest and detention, it is important to bear in mind
that the primary purpose is not
to 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 make 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.”
[35]
The Constitutional Court in Mahlangu and Another v Minister
of Police 2021 (7) BCLR 698 (CC) emphasised that the awarding of
damages in such cases is intended to deter and prevent future
infringements of human rights
by organs of the state, and constitutes
a goodwill gesture for successful plaintiffs rather than attempting
to rectify the wrong
committed.
[36]
In assessing the quantum in this case, I
have considered:
a.
the personal circumstances of the
plaintiff;
b.
the length and conditions of detention;
c.
the effect of the detention on the
plaintiff; and
d.
comparable awards in similar cases.
[37]
The plaintiff was 66 years old at the time of his arrest. He
had never been arrested before and had no previous criminal record.
He was a family man with a wife and four adult children, who operated
a small business selling cooked meat that supported his family.
[38]
Moreover, the conditions of his detention were severe
(evidence of which was uncontested by the defendant), as I explained
above.
The duration of his detention – approximately 16
months and 17 days – is exceptionally long for a case where the
charges
were ultimately withdrawn, and no real evidence identified in
support of those charges (at any stage).
[39]
The effect of the detention on the plaintiff was profound. His
business collapsed and his family suffered financial hardship to the
point that his wife had to return to living with her parents. Upon
his release, he faced stigma in his community and even in his
home
village in Mpumalanga, where people viewed him as a child molester.
This reputational damage continues to affect him and,
in all
likelihood, will continue to do so.
[40]
I considered various cases in assessing a fair award:
a.
In Khanyi v Minister of Police [2023] ZAGPJHC 434, the
court awarded R250,000.00 for unlawful arrest and detention for
approximately three days.
b.
In Motladile v Minister of Police
[2023] ZASCA 94, the Supreme Court of Appeal
awarded R200,000.00 for four days of detention.
c.
In Diljan v Minister of Police [2022] ZASCA 103,
damages of R120,000.00 were awarded for arrest and detention for
approximately three days.
[41]
While these cases involved significantly shorter periods of detention
than the present case, they provide guidance on
the daily rates of
compensation that courts have considered appropriate. From these
recent cases, the daily rate of compensation
ranges from
approximately R40,000.00 to R60,000.00 per day. However, it would be
inappropriate to simply multiply such a daily
rate by the 505 days of
the plaintiff’s detention, as this would result in an
unreasonably high award.
[42]
Taking all these factors into account, I consider that a fair and
appropriate award in this case is R1,500,000.00. This
amount reflects
both the long duration of the detention and the severe impact it had
on the plaintiff’s life, while remaining within
reasonable bounds in
comparison to other awards for unlawful arrest and detention.
Order
[43]
In the result, I make the following order:
a. The arrest and detention of
the plaintiff without a warrant was unlawful;
b. The defendant is ordered to
pay to the plaintiff the sum of R1,500,000.00 (one million five
hundred thousand rand) in damages;
c. The defendant is ordered to
pay interest on the aforesaid amount at the prescribed rate from the
date of this judgment
to the date of payment;
d. The
defendant is ordered to pay the plaintiff’s costs of suit on the
party and party scale (Scale B), such costs to include the
costs of
one counsel.
RC THACKWELL
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
For the plaintiff:
Adv BB Ntsimane instructed by TN
Ramollo Inc.
For
the defendant:
Adv EP Kotsoana instructed by the
State Attorney
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