Minister of Police v Tshalibe (23795/2012) [2025] ZAGPPHC 1356 (11 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1356 | Noteup | LawCite sino index ## Minister of Police v Tshalibe (23795/2012) [2025] ZAGPPHC 1356 (11 December 2025) Minister of Police v Tshalibe (23795/2012) [2025] ZAGPPHC 1356 (11 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1356.html sino date 11 December 2025 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO:  23795/2012 (1)      REPORTABLE: YES/NO (2)      OF INTEREST TO OTHER JUDGES: YES/NO (3)      REVISED. DATE 11 DECEMBER 2025 SIGNATURE In the application for leave to appeal of: THE MINISTER OF POLICE Applicant and MHLOMISI TSHALIBE Respondent In re: MHLOMISI TSHALIBE Plaintiff and MINISTER OF HOME AFFAIRS First Defendant MINISTER OF POLICE Second Defendant DIRECTOR OF PUBLIC PROSECUTIONS Third Defendant MINISTER OF JUSTICE Fourth Defendant JUDGMENT LABUSCHAGNE J [1]         In a judgment dated 15 July 2025 I made an order holding the Minister of Police liable for the unlawful arrest and detention of the plaintiff from 12 October 2010 until he was granted bail on 25 October 2010 (i.e. thirteen days) together with costs of suit on Scale B. [2]          The Minister of Police applies for condonation for the late filing of an application for leave to appeal and for leave to appeal. [3]         The issue of condonation is to be dealt with first.  The application for leave to appeal had to be filed in terms of the rules no later than 05 August 2025.  There was however a delay by the State Attorney in authorising the appointment of counsel to proceed with the application for leave to appeal. [4]         Counsel was only provided with an instruction to proceed with the application for leave on 05 August 2025, being the last day.  Counsel provided the application for leave to appeal on 08 August 2025, but the attorney was out of the office, resulting in a further delay.  The period of delay is four days. [5]         The application for condonation was not opposed and there is no apparent prejudice flowing from it. [6]         Condonation is  accordingly granted. [7]         In the application for leave to appeal the applicant contends that the arrest was valid because of the existence of a warrant, that presentment of the warrant was not requested and that my finding that the plaintiff’s evidence constituted the disputing of a basis for his arrest implied that the warrant had to be produced, was a misdirection. [8]           Even if I erred in this respect, the fact is that the warrant was not executed according to its terms in that the plaintiff was not brought before a court of competent jurisdiction within 48 hours as required by section 50(1) of the Criminal Procedure Act. [9]         The applicant for leave contends that I erred in applying section 67 of the Act, which provides for the procedures when an accused is out on bail and fails to appear at his next appearance.  The plaintiff, according to the docket, was out on bail but failed to appear on the date on which the warrant for his arrest was issued. [10]       Counsel for the applicant contended that the 48 hour time period referred to in section 50 of the Act is not applicable in respect of an arrest flowing from section 67.  I disagree, as section 50(1) applies to all arrests, whether a person is arrested in terms of a warrant or without a warrant of arrest.  The wording of section 50 is consistent with this interpretation.  There is no time period in section 67 prescribing the period within which the accused is to be brought before court based on a bench warrant.  The reason is that section 50 already provides the time frame within such appearance must be effected. [11]        Counsel for the applicant conceded that, if the execution of the warrant of arrest renders the arrest unlawful, then the consequent detention would also be unlawful. [12]        I am not persuaded that another court will come to the assistance of the Minister on the facts of this matter as it is common cause that: 12.1           The accused was not brought before a court of competent jurisdiction within the 48 hour period prescribed by section 50 of the Criminal Procedure Act, following his arrest. 12.2           The onus was on the Minister of Police to establish the lawfulness of the arrest (which includes the execution of the warrant of arrest). 12.3           No arguments detracting from the finding of unlawful detention were raised. [13]        In the premises the application for leave to appeal is dismissed with costs, such costs to be on Scale B. LABUSCHAGNE J JUDGE OF THE HIGH COURT APPEARANCES: Counsel for Applicant : Adv Nkabinde Instructed by : Dudula Incorporated Attorneys Counsel for First and Second Respondent : Adv Janse Van Rensburg Instructed by : State Attorney Counsel for Third and Fourth Respondent : M.S Mangolele Instructed by : State Attorney sino noindex make_database footer start