Minister of Police v Fourie (A51/2025) [2025] ZAGPPHC 1382 (15 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 1382 | Noteup | LawCite sino index ## Minister of Police v Fourie (A51/2025) [2025] ZAGPPHC 1382 (15 December 2025) Minister of Police v Fourie (A51/2025) [2025] ZAGPPHC 1382 (15 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1382.html sino date 15 December 2025 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA, GAUTENG DIVISION, PRETORIA CASE NO. A51/2025 (1)      REPORTABLE:   NO/YES (2)      OF INTEREST TO OTHER JUDGES: NO/YES (3)      REVISED.  NO/YES DATE 15/12/2025 SIGNATURE In the matter between: MINISTER OF POLICE                                                                             Appellant And PIETER FOURIE                                                                                   Respondent This Judgment is deemed to have been handed down electronically by circulation to the parties’ representatives via email and uploaded onto the caselines system on 15 December 2025 at 10h00 Judgment Thupaatlase AJ (Lenyai J concurring) [1] The respondent issued summons out of the Magistrate Court for the District of Tshwane Central against the Minister of Police in his nominal capacity and as the executive authority responsible for police services in the country. The respondent is an adult male person with capacity to sue or be sued. [2] The claim is for damages arising from unlawful arrest and detention. There are also claims for medical and legal costs. It was alleged by the respondent that he was arrested by members of South African Police Service (SAPS) without a warrant of arrest and as a result the arrest and the detention were unlawful. The respondent claimed an amount of R 100 000.00. [3] The appellant pleaded and raised a special plea of non-joinder and also pleaded on the merits denying that its members were responsible for the arrest and detention of the respondent. The plea was to the effect that the respondent was arrested by traffic officers who are the employees of the MEC for Transport, Limpopo. In essence the plea of the appellant was to effect that a wrong party has been sued by the respondent. [4] The grounds of appeal are comprehensive and detailed and are stated as follows: 4.1. The magistrate erred in finding that the appellant had no duty to begin and later ruled that the respondent was arrested by members of SAPS which resulted in the magistrate placing the duty to begin on a wrong party (respondent). This resulted on the onus being placed on a wrong party. 4.2. It is alleged that given that it was ruled that the respondent had duty to begin, the presiding officer could not find that the respondent was arrested by SAPS members. 4.3. It is also a ground of appeal that the presiding officer applied an incorrect standard of proof being a proof beyond reasonable doubt. As a result, it is alleged that the presiding officer failed to appreciate the type of proceedings before the court. 4.4. The next ground of appeal amounts to the criticism of how the presiding officer made incorrect factual findings in respect of the evidence. In particular the presiding is criticised for a finding that the members of SAPS were responsible for the arrest of the respondent. 4.5. The appellant also bemoaned the fact that the presiding officer dismissed an application for absolution from the instance despite that at the close of the plaintiff’s case, there was no evidence that arrest by members of SAPS had been proved. 4.6. That the presiding officer erred in concluding that there was no need to join the MEC of Transport Limpopo despite the members of MEC admitting having been responsible for the arrest of the plaintiff. 4.7.  The presiding officer erred in finding that the respondent had proved the quantum of damages claimed alternatively that the amount awarded is not consistent with the approach by courts in awarding compensation in comparable circumstances. 4.8. A further ground of appeal was that the court aquo erred in awarding costs on high court scale. It was contended that the magistrate’s court has no such authority and it was incompetent for such an award to be granted. [5] In argument counsel for the appellant elaborated on the grounds of appeal as set out above. The argument was essentially to the effect that the court should have found that the arrest was effected by traffic officers who are members of MEC for Transport, Limpopo and that SAPS members at Northam police station merely provided the facility to have the respondent detained because traffic officers didn’t have a detention facility. In the premises the special plea of non-joinder should have been sustained in favour of the appellant. [6] It was submitted that the insistence by the respondent that the arrest was effected by members of SAPS despite a special plea of non-joinder was motivated by the fact that at the time the point was argued, a period of three years had passed and therefore the claim had prescribed against MEC For Transport, Limpop [7] It was contended further that the quantum awarded was excessive if regard is had to precedents. It was submitted that given the fact that the respondent was detained for approximately 4 hours an appropriate amount will be about R 15 000.00. In respect of the type of costs that were awarded by the court aquo, the appellant submitted that the magistrate was not entitled to award such costs. [8] The appellant specifically abandoned the  ground of appeal regarding the burden of proof and duty to begin. It was conceded by the appellant that because arrest was not admitted, it was incumbent on the respondent to proof that he was indeed arrested and detained. This meant that the respondent had the burden to prove arrest and duty to begin. It is the view of this court that such a concession was correctly made by counsel appearing for the appellant. [9] The respondent submitted that the presiding officer made a correct factual finding and also correct credibility findings. It was contended by the respondent that the magistrate correctly applied the test regarding credibility where there are mutually destructive versions. [10] The respondent submitted that the court correctly found that the arrest was effected by members of SAPS. It was submitted that the arrest was an ongoing process and that the fact is that it commenced from the moment the respondent was ordered to go to the police station was neither nor there as he had lost his freedom.S [11] As an illustration that the respondent was arrested by members of SAPS, the respondent made specific reference to the ‘ certificate of rights’ which was signed by a SAPS member, Warrant Officer Kekae. It was submitted that Officer Sehume also admitted under cross-examination that he effected arrest of the respondent. [12] In respect of the quantum it was contended by the respondent that the award was appropriate. In respect of costs the respondent referred to section 80 of Magistrates’ Court 1944 and submitted that the magistrate was entitled to grant the costs order she made. [13] The judgment reveals that the court aquo formulated the issues for determination as follows: whether the arrest and detention of the respondent was effected by members of SAPS or by traffic officers in the service of MEC for Transport Limpopo, whether such arrest and detention was unlawful or not and if the arrest and detention is found to be unlawful what quantum of damages are to be awarded. [14] The respondent was ordered to begin, and he testified as the only witness in his  case. After the conclusion of the respondent’s case, absolution from the instance was applied for and refused. The court concluded that there was a prima facie case and refused the application. The court concluded that arrest and detention has been established and it was incumbent on the appellant to proof lawfulness of such arrest and detention. [15] The appellant called three witness and after their evidence the court concluded that the arrest that it was indeed effected by members of SAPS. The court found in favour of the respondent and awarded damages and costs. [16] The court accepted that there was no arrest at the side of the road, where the respondent’s companion was stopped for alleged violation of traffic regulations. The court aquo accepted that there was commotion on the side of the road when the respondent’s companion refused to provide his particulars to enable the traffic officials to issue him with a traffic summonses. [17] The police were called and upon their arrival the respondent was busy taking a video of what was happening. The police appeared to have had no issue with that action, only ordering both the respondent and his companion and also traffic officers to attend at the police station. This was with the view to have the disagreement between the parties be resolved. It appears that at the police station, the police played an active role and that the role of the traffic officers receded to the background. [18] The respondent was ordered to surrender his cell phone and other personal belongings. He was put in the area of the community service centre (charge-office) referred to as the ‘cage’. It was at that stage that Warrant Officer Kekae processed him and read him the rights as a detained and arrested person. He was kept in the ‘cage’ until he was released after the intervention of his legal representative and was issued with a notice to appear in court. The court found that the traffic officers could not handle the situation and called the members of SAPS who subsequently arrested the respondent. [19] The court aquo concluded that the evidence of the respondent was clear and concise to the point. There were no contradictions in his testimony and was supported by objective facts and various documentary evidential materials  that were introduced into the record and also the real evidence in the form of a video footage that was played during the trial proceedings corroborated his version. [20] On the other hand the court aquo was not satisfied with the appellant’s evidence. The evidence was provided by three witnesses, and the court was not impressed with their testimony. The court characterised their evidence as contradictory and being at odds with objective facts. The court noted that the appellant’s witnesses gave   exaggerated testimony that was not consistent their statements. In the end the court aquo found that the respondent proved his case and granted damages with costs. [21] The appellant didn’t concede that there was an arrest by its members, instead insisted that it was traffic officers who effected such an arrest. This placed a duty on the respondent to proof arrest and detention and unlawfulness thereof. Section 38(1) of the Criminal Procedure Act 51 of 1977 (the CPA) provides that arrest is one of the four methods of securing the attendance of an accused in court for purposes of trial. [22] Because of its intrusive nature on the privacy and liberty of the arrestee, an arrest has to be effected on the authority of a warrant, or, under certain circumstances, without a warrant [1] . Consequently, the onus rests on the arrestor to justify an arrest. In Minister of Law and Order and Others v Hurley and Another [2] the Court stated thus : ‘ 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.’ [23] The Court, in Duncan v Minister of Law and Order ( Duncan ) [3] further set out four jurisdictional requirements which flow from s 40(1) of the CPA, which authorises arrests without a warrant. They are that the person arresting must be a peace officer, who entertained a suspicion, that the suspicion was that the arrestee had committed a schedule 1 offence and that the suspicion rested on reasonable grounds. [24] In the case of Groves NO v Minister of Police [4] the Constitutional Court stated that:  ‘ The officer making a warrantless arrest has to comply with the jurisdictional prerequisites set out in section 40(1) of the CPA. In other words, one or more of the grounds listed in paragraphs (a) to (q) of that subsection must be satisfied. If those prerequisites are satisfied, discretion whether or not to arrest arises. The officer has to collate facts and exercise his discretion on those facts. The officer must be able to justify the exercising of his discretion on those facts. The facts may include an investigation of the exculpatory explanation provided by the accused person. . . . Applying the principle of rationality, there may be circumstances where the arresting officer will have to make a value judgment. Police officers exercise public powers in the execution of their duties and “[r]ationality in this sense is a minimum threshold requirement applicable to the exercise of all public power by members of the executive and other functionaries”. An arresting officer only has the power to make a value judgement where the prevailing exigencies at the time of arrest may require him to exercise same; a discretion as to how the arrest should be affected and mostly if it must be done there and then.’ [25] In the matter of Ntoni Jacob Hlape v The Minister of Police [5] the court held that the burden to prove, on a balance of probability, that the police didn’t exercise a discretion, is on the respondent. In this regard he tendered evidence to prove that his arrest and subsequent detention were unlawful, and his evidence was not gainsaid by the appellant. [26] The respondent is required only to establish that he was arrested and detained without a warrant; once this is shown, the onus rests upon the appellant to justify the arrest in terms of section 40(1)(b) of the Criminal Procedure Act 51 of 1977 (“CPA”). This principle was established in the case of Zealand v Minister of Justice and Constitutional Development [6] . [ 27] The magistrate concluded that the witnesses for the appellant contradicted themselves. The magistrate rejected their version and accepted the version of the respondent. It is a trite principle of our law, from as far back as Rex v Dhlumayo and Another [7] and followed by a long line of the decisions of the superior courts, that, out of deference to the trial court, an appeal court should be slow to interfere with or upset the findings of the trial court on the facts, as well as on the credibility of witnesses. The rationale is obvious: the magistrate or judge ‘ has advantages – which the appeal court cannot have – in seeing and hearing the witnesses and in being steeped in the atmosphere of the trial’. However, there is an exception to this principle. The appeal court may interfere if it appears from the transcript of the trial record that the magistrate or judge committed a misdirection. In this particular case, there is no misdirection, because the magistrate’s finding of credibility on the evidence of the respondent and that of the appellant’s witnesses is buttressed by the transcript of the record of the trial proceedings [8] . [28] It is apparent from the record that the respondent didn’t have any further dealings with the traffic officers after he arrived at police station. It is clear that upon his arrival it is members of SAPS who processed him. This is clearly supported by objective evidence. The police treated him as an arrested person and even detained him until he was released after the intervention of his legal representative. [29] To illustrate the point the police charged him for reckless and negligent driving of motor vehicle. This was obviously false as he was at all material times a passenger in the vehicle of his companion. If the traffic officers had arrested the respondent, they would have known better and charged the respondent correctly. The argument of the appellant on this aspect is contrived and internal contradictory and falls to be rejected. [30] It is the view of this court that the assertion that the court aquo erred in refusing to grant an application for absolution from the instance is misplaced. The presiding officer correctly placed the duty to begin on the respondent. This was because the appellant denied arresting the respondent. In the circumstances the respondent was required to establish that he was arrested. It is immaterial where the arrest took place. The presiding officer found that the arrest happened at the police station. There is no basis to reject such a finding. [31] It remained for the appellant to justify the arrest. The appellant spurned that opportunity and insisted that there was a misjoinder. This was despite the ruling of the presiding officer dismissing the special plea of non-joinder. In the premises the established arrest of the respondent remained unjustified. [32] This court finds that the magistrate didn’t misdirect herself and the appeal on the merits stands to be dismissed. The concession by counsel for the appellant to abandon this ground of appeal was well made as in the context of how the trial unfolded was meritless. [33] The appellant also took issue with the quantum of damages awarded to the respondent. It was argued that the award was out of proportion with precedents. The law on assessing damages for unlawful arrest and detention has been canvassed in comparable cases over the years. The case of Minister of Safety and Security v Tyulu [9] has stated the position 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 to enrich the aggrieved party but to offer some much needed solatium for 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 that the damages awarded 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. I readily concede that it is impossible to determine an award of damages for the 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 the facts of the particular case and to determine the quantum of damages on such facts... ’ (Footnotes omitted). [34] In Dijon v Minister of Police [10] the court stated that: ‘ The acceptable method of assessing damages includes the evaluation of the plaintiff’s personal circumstances, the manner  of the arrest,  the duration of the detention, the degree of humiliation which encompasses the aggrieved party’s reputation and standing in the community; the derivation of liberty; and other relevant factors peculiar to the case under consideration’. [35] In Van der Nest NO v Minister of Police [11] the court summarised various awards as follows: ‘ In Dijan for unlawful arrest and detention for four nights this Court, on appeal awarded damages in the amount of R 120 000. In Motladile, for the unlawful arrest and detention for four nights, damages in the amount of R 200 000 were granted on appeal. In Minister of Police v Page for unlawful arrest and detention for one night, R 30 000 was awarded as damages. From a survey of the cases, it is reasonable to conclude, without setting a bar, that the courts have awarded damages ranging from R 15 000 to R 30 000 per night, with awards varying in light of the circumstances of each case. The award must be just to reflect the importance of the fundamental constitutional right infringed, the right to freedom of movement and residence. And in this instance the right to dignity and privacy’. (Footnotes omitted) [36] It is trite that this court can only interfere with the award by the court aquo if it found that it failed to exercise its discretion judiciously in awarding damages. In this case the court has not find such misdirection. The court took all factors into account and awarded the amount of R 80 000.00. [37] The last aspect that the appellant contended that the court aquo erred is in respect of the type of costs awarded. The trial court enjoys discretion in the award of costs; however, magistrates court in considering award of  costs is bound by its jurisdictional powers. It is trite that ‘ the magistrates’ court is a creature of statute and has no jurisdiction beyond that granted by the statute creating it. It has no inherent jurisdiction such as is possessed by the superior courts and can claim no authority which cannot be found within four corners of its constituent Act [12] .’ [38] In the magistrates court costs and fees are provided for by section 80 [13] of the Magistrates’ Court Act [14] and by Magistrate  Rules 33, 34 and 35. The magistrates’ court is therefore confined to work within the perimeters of the constituent Act and Rules. The Rules provide for costs and scales within which the magistrate is expected to operate. This court is satisfied that to the extent that the court aquo purported to award costs on the High Court scale it committed a misdirection and such order stand to be set aside. [39] On consideration of the evidence placed before the court aquo, this court is satisfied that it was justified in accepting the evidence of the respondent and rejecting that of the appellant and that the quantum of damages awarded was fair. In respect of the costs, it is found that the court aquo erred and appeal should succeed in that respect. [40] It follows that the appeal cannot succeed on the merits and quantum. The following order is made: 1. Appeal on the merits and quantum is dismissed. 2. Appeal in respect of costs succeeds and order of the magistrate is set aside and substituted to read as follows: Costs awarded on party and party scale of the Magistrates’ Court Act. T THUPAATLASE AJ ACTING JUDGE GAUTENG DIVISION, PRETORIA I concur and it so ordered MMD LENYAI J JUDGE GAUTENG DIVISION, PRETORIA Date of Hearing: 23 October 2025 Judgment Delivered: 15 December 202 For the Applicant: Adv. Makhubela Instructed by: State Attorney For the Respondent: Adv. Oosthuizen Instructed by: Brandon Swanepoel Attorneys [1] Section 39 of the CPA. [2] [1986] ZASCA 53 ; [1986] All SA 42 (A); 1986 SA (2) 568 (A) at 589E-F [3] [1986] ZASCA 24 ; [1986] 2 All SA 241 ; 1986 (2) SA 805 (A) at 818 G-H [4] [2023] ZACC 36 ; 2024 (1) SACR 286 (CC); 2024 (4) BCLR 503 (CC) paras 52 and 60 [5] (426/2023) [2024] ZASCA 68 (3 May 2024) at para 14 [6] [6] 2008 (2) SACR 1 (CC). [7] 1948 (2) SA 677 (A) [8] Dhlumayo Ibid at 705 [9] [200] ZASCA 55, 2009 (2) SACR 282 (SCA); [2009] 4 All SA 38 (SCA); 2009 (5) SA 85 (SCA) para 26 [10] [2022] ZASCA 103 at paras 18-19 [11] (154/2024) [2025] ZASCA 42 (10 April 2025) at para 33 [12] Jones & Buckle The Civil Practice of the Magistrates’ Court in South Africa vol. 1 10 th edition (2012) at 77 [13] The stamps, fees, costs and charges [14] Act 32 of 1944 as amended sino noindex make_database footer start