THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable
Case no: 557/2021

In the matter between:

EARL RENSBURG

APPELLANT

and

THE MINISTER OF POLICE

FIRST RESPONDENT

THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
SECOND RESPONDENT

Neutral citation:
Earl Rensburg v Minister of Police and Another (557/2021) [2022]
ZASCA 105 (29 June 2022)
Coram:
MOLEMELA, CARELSE and MOTHLE JJA and TSOKA and
PHATSHOANE AJJA
Heard:
6 May 2022
Delivered:
29 June 2022
Summary:

Criminal law and procedure – section 40(1)(b) of the Criminal
Procedure Act 51 of 1977 – arrest without a warrant – whether respondents’ conduct in
arresting and detaining the appellant was wrongful, unlawful and unjustified.

______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Eastern Cape Division of the High Court, Grahamstown (Revelas J and
Notyesi AJ, sitting as a court of appeal):
The appeal is dismissed with costs.
______________________________________________________________________

JUDGMENT
______________________________________________________________________
Tsoka AJA (Molemela, Carelse and Mothle JJA and Phatshoane AJA concurring):
[1] At issue in this appeal is whether the arrest of the appellant, Mr Earl Rensburg
(Mr Rensburg), without a warrant on 15 September 2016 by members of the South
African Police Service (the police) and his detention until his first court appearance on
19 September 2016 was wrongful, unlawful and unjustified. Linked to this issue is whether
his subsequent detention after his first court appearance until his release from detention
on warning on 23 September 2016 was also wrongful, unlawful and unjustified.

[2] Mr Rensburg, as the plaintiff, instituted a delictual claim for damages for his alleged
unlawful arrest and detention in the Eastern Cape Regional Court, Port Elizabeth (the
regional court), against the first respondent, the Minister of Police (the Minister), as the
first defendant, and the second respondent, the National Director of Public Prosecutions
(the NDPP), as the second defendant.

[3] At the conclusion of the trial in the regional court, the magistrate found in favour of
Mr Rensburg, as she concluded that Mr Rensburg’s arrest and detention from
15 September 2016 until his first court appearance on 19 September 2016 was wrongful,
unlawful and unjustified. The magistrate, however, found that Mr Rensburg’s subsequent

detention from 19 September 2016 until his release on warning on 23 September 2016
was not wrongful and unlawful, and thus absolved the NDPP.

[4] In respect of the unlawful arrest and detention, Mr Rensburg was awarded the
amount of R300 000 as damages. Despite the fact that the NDPP was successful in
defending the action against it, the magistrate did not make an order of costs in its favour.

[5] Aggrieved by the judgment and order of the regional court, the Minister and the
NDPP appealed to the Eastern Cape Division of the High Court, Grahamstown (the high
court). The NDPP’s appeal was only directed at being denied an order of costs despite
being a successful party. The high court upheld the appeal with costs.

[6] Dissatisfied with the outcome of the order of the high court, Mr Rensburg brought
an application for leave to appeal, which application was unsuccessful. He then petitioned
this Court for special leave to appeal order of the high court, which petition for leave to
appeal was granted by this Court on 5 May 2021.

[7] The facts underpinning the appeal are, in the main, common cause. They are as
follows. On Thursday, 15 September 2016, Mr Rensburg was brought to Humewood
Police Station by three male persons, Mr Kirsten Ingram, Mr Renaldo Jaftha and
Mr Christeden Williams, who alleged that he had stolen a laptop. The trio were referred
to Humewood Police Station by another police station (Mount Road Police Station).

[8] At Humewood Police Station, the trio spoke to Sergeant Nomakosazana Cimani
(Sgt Cimani). Mr Ingram explained to Sgt Cimani that they brought Mr Rensburg to her
for the theft of the laptop. However, Sgt Cimani, dissatisfied that the owner of the laptop
was not among the three male persons, refused to arrest Mr Rensburg. She demanded
that the owner of the laptop be brought to her to be interviewed and for confirmation that
her laptop was stolen. Mr Ingram fetched the complainant, Ms Gwendoline Camelia
Mohamed (Ms Mohamed), who confirmed to Sgt Cimani that Mr Rensburg admitted to
her that he stole her laptop and that he apologised to her for stealing the laptop.

Mr Ingram, Mr Jaftha and Mr Williams informed Sgt Cimani that, in the motor vehicle,
while driving to the police station, Mr Rensburg also admitted to them that he stole
Ms Mohamed’s laptop. As she reasonably suspected that Mr Rensburg had committed
an offence, she arrested and detained him. She further testified that, as theft is a schedule
1 offence in terms of the Criminal Procedure Act 51 of 1977 (the CPA), she, without a
warrant, arrested and detained Mr Rensburg in terms of the provisions of s 40(1)(b) of the
CPA. She opened a docket, which docket contained the statements of Mr Ingram and
Ms Mohamed.

[9] The following day, 16 September 2016, the docket was handed over to Lieutenant
Colonel Marlene Lynette Burger (Lt Col Burger). Lt Col Burger testified that, upon
perusing the docket, she realised that there was still outstanding investigations that
needed to be finalised. The further investigations included witnesses’ statements and the
warning statement of Mr Rensburg. She also needed to take Mr Rensburg’s fingerprints,
verify his profile and establish whether he had previous convictions or other pending
cases. She had to also verify Mr Rensburg’s residential address that he had furnished to
the police.

[10]  She stated further that, once the outstanding information was obtained, with the
exception of the verification of Mr Rensburg’s residential address, she was satisfied that
the matter was ready to serve before court on 19 September 2016. Although the address
furnished to the police by Mr Rensburg, which was contained in the bail information form,
was confirmed, it had not yet been verified. According to Lt Col Burger, the verification of
an address entails visiting the address in order to verify that the address furnished to the
police was indeed correct and that Mr Rensburg lived thereat. He pertinently stated that
a telephonic confirmation of an address is not the same as a verification of an address.
That is the reason why Warrant Officer Arthur Smouse (W/O Smouse) visited
Mr Rensburg’s address on 21 September 2016 in order to verify same. On that day,
W/O Smouse found no one at home, with the result that the address could not be verified.

[11] On 19 September 2016, Mr Rensburg appeared in court for the first time. The court
explained to him that, since his address had not yet been verified, he could not be
considered for bail. On 21 September 2016, W/O Smouse visited number 3 Serona
Street, Gelvandale, Port Elizabeth, where he found the owner of the premises, who
confirmed that Mr Rensburg is her grandson, but that he did not live with her.
Mr Rensburg’s grandmother informed W/O Smouse that Mr Rensburg resided with his
girlfriend at an address unknown to her.

[12] It is not disputed that on 19 September 2016, when Mr Rensburg appeared in court
for the first time his legal rights were explained to him and he elected to engage the
services of a Legal Aid attorney to conduct his defence. According to the public
prosecutor, on perusing the docket, she was satisfied that the charge against
Mr Rensburg was a schedule 1 offence in terms of the CPA, and that the State had a
prima facie case against him. The public prosecutor stated that the presiding magistrate
had, in terms of s 60(11)B of the CPA, enquired from Mr Rensburg whether he had
previous convictions or other pending cases. His attorney informed the magistrate that
his client had neither previous convictions, nor pending cases. However, the public
prosecutor testified that, on perusing the docket, she discovered that Mr Rensburg has
previous convictions for possession of dagga. According to her, this information still had
to be verified before Mr Rensburg could be considered for bail. It was on this basis that
she applied to court for the matter to be postponed to 28 September 2016, to verify the
information in her possession. As a result, neither Mr Rensburg’s attorney, nor the public
prosecutor considered the issue of bail. The magistrate, in exercising her judicial
discretion, refused to postpone the matter to 28 September 2016, but stood the matter
down until 20 September 2016 instead.

[13] On 20 September 2016, Mr Rensburg was still represented by an attorney from
Legal Aid, and the State represented by Ms Melanie Hammet (Ms Hammet). Ms Hammet
testified that on perusing the docket, she also concluded that there was a prima facie
case against Mr Rensburg. And, as Mr Rensburg’s address had still not yet been verified,
the matter stood down to the following day for the purposes of bail application. Given that

the address had still not been verified by 21 September 2016, the matter was postponed
to 23 September 2016, on which date Mr Rensburg’s cousin, Ms Maurisha Alexander,
gave an undertaking to the court that Mr Rensburg could be released into her custody.
The undertaking was accepted by the court. Mr Rensburg was released on warning on
the same date. The matter was then postponed to 12 October 2016, ostensibly, for the
purposes of trial.

[14]  On 12 October 2016, the charges against Mr Rensburg were withdrawn. He
subsequently instituted a damages claim against the Minister and the NDPP for unlawful
arrest and detention from 15 September 2016 until his first court appearance on
19 September 2016, and for his further unlawful arrest and detention from
19 September 2016 until his release on warning on 23 September 2016. As already
mentioned, these claims were partially successful. Consequently, the Minister and the
NDPP appealed the regional court’s order to the high court. The matter served before
Notyesi AJ and Revelas J. The high court upheld the appeal and set aside the regional
court’s order by replacing it with an order dismissing Mr Rensburg’s claims with costs.
The high court further made an order disentitling the Minister and the NDPP to recover
more than 25% of counsel’s fees in respect of preparation of their heads of argument.
This was on the basis that such heads of argument, though helpful, were prolix. The
Minister and the NDPP, however, did not seek leave to cross-appeal the order depriving
them of 75% of their legal fees in respect of the drawing of the heads of argument.
Accordingly, this aspect should not detain this Court any further. The only issue for
determination is whether Mr Rensburg’s arrest and detention was unlawful.

[15]  The Minister’s defence, as set out in his plea, was that the arrest was lawful, as it
was carried out within the contemplation of s 40(1)(b) of the CPA, which 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.’

[16] In Minister of Safety and Security v Sekhoto and Another,1 the court reasoned thus:
‘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.’

[17] It is now convenient to assess whether the arrest effected by the arresting officer,
namely Sgt Cimani, passes muster. It is undisputed that Sgt Cimani is a peace officer
who, after interviewing Mr Ingram and his friends, including Ms Mohamed, entertained a
reasonable suspicion that Mr Rensburg committed theft of Ms Mohamed’s laptop, which
offence, in terms of the CPA, is a schedule 1 offence. That, having regard to the
statements obtained from Mr Ingram and Ms Mohamed, the suspicion of Sgt Cimani was
rested on reasonable grounds, is beyond any doubt. It must be borne in mind that, at the
beginning, when the report was made to her by Mr Ingram that Mr Rensburg stole
Ms Mohamed’s laptop, Sgt Cimani was not keen to effect the arrest until the owner of the
laptop had been interviewed and a statement obtained from her confirming that her laptop
was indeed stolen by Mr Rensburg. In addition, Mr Ingram and his friends told Sgt Cimani
that, while travelling to the police station with Mr Rensburg, in the motor vehicle, he
admitted that he in fact stole the laptop, which information corroborated Ms Mohamed’s
allegations against him. When Mr Rensburg was confronted with these serious
allegations, implicating him in the theft of the laptop, instead of him refuting them, as one
would have expected, he elected to remain silent. In these circumstances, it cannot
therefore be contended that Sgt Cimani’s suspicion was unreasonable.

[18]  In my view, Mr Rensburg’s arrest without a warrant was justified. Sgt Cimani’s
suspicions were rested on reasonable grounds. The Minister can, therefore, not be held
liable for the contended damages resulting in Mr Rensburg’s alleged wrongful, unlawful
and unjustified arrest. The high court cannot, thus, be faulted for concluding that

1 Minister of Safety and Security v Sekhoto and Another [2010] ZASCA 141; [2011] 2 All SA 157 (SCA);
2011 (5) SA 367 (SCA) para 6.

Mr Rensburg’s arrest in terms of s 40(1)(b) of the CPA was not unlawful, and for finding
that the claim against the Minister ought to have been dismissed by the regional court.

[19] Counsel for Mr Rensburg submitted that the Minister should be held liable for the
contended damages suffered by Mr Rensburg after his first appearance in court, since
the police were remiss in not agreeing to him being released on bail. The contention was
that because Sergeant Pumza Vinjwa had telephonically confirmed Mr Rensburg’s
address, the further postponements after 19 September 2016 until 23 September 2016,
when he was released on warning, were unreasonable. Counsel’s contentions are
unfounded. As it turned out, on 21 September 2016, when W/O Smouse visited
Mr Rensburg’s address, his grandmother reported to the police that her grandson was
not living with her even though Mr Rensburg’s address, as stated in the bail form, was
telephonically confirmed. The police cannot, therefore, be faulted for detaining
Mr Rensburg until his residential address had been verified.

[20] Having found that prior to 19 September 2016 the police acted lawfully, could it
then be contended that the subsequent postponements that resulted in Mr Rensburg
being remanded in custody without being released on bail be attributable to the unlawful
conduct of the police? In my view, the answer to this question is that the police, did not
act unlawfully in detaining him and thus depriving him of his liberty. This view is fortified
by the following observation made by the Constitutional Court in De Klerk v Minister of
Police:2
‘. . . The deprivation of liberty, through arrest and detention, is per se prima facie unlawful. Every
deprivation of liberty must not only be effected in a procedurally fair manner but must also be
substantively justified by acceptable reasons. Since Zealand, a remand order by a Magistrate
does not necessarily render subsequent detention lawful. What matters is whether, substantively,
there was just cause for the later deprivation of liberty. In determining whether the deprivation of
liberty pursuant to a remand order is lawful, regard can be had to the manner in which the remand
order was made.’
And the Constitutional Court further stated that:

2 De Klerk v Minister of Police [2019] ZACC 32; 2019 (12) BCLR 1425 (CC); 2021 (4) SA 585 (CC) paras
62 and 63.

‘In cases like this, the liability of the police for detention post-court appearance should be
determined on an application of the principles of legal causation, having regard to the applicable
tests and policy considerations. This may include a consideration of whether the post-appearance
detention was lawful. It is these public policy considerations that will serve as a measure of control
to ensure that liability is not extended too far. The conduct of the police after an unlawful arrest,
especially if the police acted unlawfully after the unlawful arrest of the plaintiff, is to be evaluated
and considered in determining legal causation. In addition, every matter must be determined on
its own facts – there is no general rule that can be applied dogmatically in order to determine
liability.’

[21]  When the court stood the matter down until the following day, it was with the
consent of Mr Rensburg and his attorney. At no stage did Mr Rensburg or his attorney
raise the issue of bail with the magistrate. Furthermore, the issue of Mr Rensburg’s
previous convictions had still not been resolved and his address had not been verified,
with the result that he could not therefore be considered for bail until these issues had
been resolved. Once those outstanding issues had been resolved, and the undertaking
given to the court by his cousin to reside with her, the court, in the exercise of its
discretion, released him on warning.

[22] The conclusion reached is that the Minister can, thus, not be found to have acted
unreasonably, wrongfully, unlawfully and unjustifiably in depriving Mr Rensburg of his
liberty. The actions of the police, post the first court appearance were, in my view, lawful.

[23] The further contention that Mr Rensburg should have been released on bail earlier,
or at his first court appearance on 19 September 2016 is also unfounded and without
merit. Section 50 of the CPA provides that:
‘(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,
he or she shall be brought before a lower court as soon as reasonably possible, but not later than
48 hours after the arrest.’

[24] In the present matter, Mr Rensburg was brought to court within a reasonable time,
having regard to the fact that he was arrested late on Thursday, 15 September 2016.
When he appeared in court on 19 September 2016, the 48-hour period referred to in terms
of s 50 of the CPA had not yet expired, as the previous two days fell on a weekend and
were dies non for the calculation of this period. Soon thereafter, the police took steps to
verify his address, but could not do so, for reasons already alluded to earlier in the
judgment. The result reached is that the police cannot be faulted for bringing Mr Rensburg
to court on 19 September 2016, which, in my view, was within a reasonable time.
Mr Rensburg appeared in court on the first available court day being Monday, 19
September 2016.

[25] In my view, the police acted correctly, lawfully and justifiably in effecting the arrest
of Mr Rensburg without a warrant authorising such arrest. So was his further detention
until his release on 23 September 2016. The Minister cannot, therefore, in the
circumstance of this matter, be said to be the cause of Mr Rensburg’s contended
damages.

[26]  Although s 12(1)(a) of the Constitution enshrines the right to freedom and security
of a person, which right includes the right not to be deprived of that freedom arbitrarily or
without just cause, this does not mean that if any person, such as Mr Rensburg, contends
that their right to freedom and security has been infringed, they should necessarily be
compensated. Where, such as in the present matter, the police acted within the prescript
of the law in preventing, combating and investigating crime, maintaining public order,
protecting and securing the inhabitants of the Republic and their property, and to uphold
and enforce the law,3 no fault should be attributed to them. To hold otherwise would be

3 See s 205(3) of the Constitution of the Republic of South Africa, 1996.

placing unreasonable constraints on the police when carrying out their duties to enforce
the law for the benefit of all.4

[27]  The Ministry of the Police is an organ of state which is obliged, in terms of the
Constitution, to uphold the law, protect and promote the rights enshrined in the Bill of
Rights. It is, however, not a court of law. Its function is to act reasonably and within the
confines of the law. And, in appropriate circumstances, to arrest any person suspected of
committing a schedule 1 offence without a warrant. If the suspicion is founded on
reasonable grounds, that is sufficient. It is only courts of law that are obliged to apply a
higher standard of proof in either a civil or criminal trial, on a balance of probabilities or
beyond reasonable doubt respectively, before returning a verdict, not the police. Where
in a case such as the present, a police officer acted, objectively viewed, on reasonable
suspicion, that is the end of the matter. Such police officer cannot by any stretch of the
imagination be said to have acted wrongfully, unlawfully and unjustifiably, and thus be
liable for damages.

[28] To conclude, I find no misdirection in any of the findings of the high court. The
finding of the high court that the police acted correctly and lawfully cannot be faulted.
There is thus no reason to hold the Minister liable for the contented unlawful arrest and
detention of Mr Rensburg until 23 September 2016. In the result, the appeal must fail. In
my view, there is no reason to depart from the general rule that costs must follow the
result. But, given the simplicity of the matter, the employment of two counsel was
therefore unreasonable. There is therefore no justification for the costs of two counsel.

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

_________________________
M TSOKA
ACTING JUDGE OF APPEAL

4 Minister of Police v Bosman and Others [2021] ZASCA 172 (SCA) para 32.

Appearances

For the appellant:

M du Toit
Instructed by:

Carol Geswint Attorneys, Port Elizabeth

Webbers Attorneys, Bloemfontein

For the respondents:

F Peterson (with L Hesselman and B Ndamase)
Instructed by:

State Attorney, Port Elizabeth

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:
29 June 2022
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
Earl Rensburg v Minister of Police and Another (557/2021) [2022] ZASCA 105 (29
June 2022)
The Supreme Court of Appeal (SCA) today dismissed an appeal with costs against
the judgment and order of the Eastern Cape Division of the High Court, Grahamstown
(the high court), wherein the appellant’s arrest and detention was held to be lawful.

At issue in the appeal was whether the arrest of the appellant, Mr Earl Rensburg
(Mr Rensburg), without a warrant on 15 September 2016 by members of the South
African Police Service (the police) and his detention until his first court appearance on
19 September 2016 was wrongful, unlawful and unjustified. Linked to this issue was
whether his subsequent detention after his first court appearance until his release from
detention on warning on 23 September 2016 was also wrongful, unlawful and
unjustified.

The facts underpinning the appeal were as follows. On Thursday, 15 September 2016,
Mr Rensburg was brought to Humewood Police Station by three male persons, Mr
Ingram, Mr Jaftha and Mr Williams, who alleged that he had stolen a laptop. At
Humewood Police Station, the trio spoke to Sgt Cimani. However, Sgt Cimani
demanded that the owner of the laptop be brought to her to be interviewed and for
confirmation that their laptop was stolen. Mr Ingram fetched the complainant, Ms
Mohamed, who confirmed to Sgt Cimani that Mr Rensburg admitted to her that he had
stolen her laptop and that he had apologised to her for stealing the laptop. Thereafter,
Sgt Cimani, without a warrant, arrested and detained Mr Rensburg in terms of the
provisions of s 40(1)(b) of the Criminal Procedure Act 51 of 1977 (CPA).

The SCA held that Mr Rensburg’s arrest without a warrant was justified. The SCA
found that Sgt Cimani’s suspicions were rested on reasonable grounds; and that the
Minister could, therefore, not be held liable for the contended damages resulting in Mr
Rensburg’s alleged wrongful, unlawful and unjustified arrest; and that the high court
could not, thus, be faulted for concluding that Mr Rensburg’s arrest in terms of s

40(1)(b) of the CPA was not unlawful, and for finding that the claim against the Minister
ought to have been dismissed by the regional court.

The SCA held further that the police did not act unlawfully in detaining Mr Rensburg
and thus depriving him of his liberty. Mr Rensburg was brought to court within a
reasonable time and the 48-hour period referred to in terms of s 50 of the CPA had
not yet expired. The SCA found further that the actions of the police, post the first court
appearance, were lawful. This was because, inter alia, the issue of Mr Rensburg’s
previous convictions had still not been resolved and his address had not been verified,
with the result that he could not therefore be considered for bail until these issues had
been resolved. Once those outstanding issues had been resolved, and the
undertaking given to the court by his cousin to reside with her, the court, in the exercise
of its discretion, released him on warning. The SCA held that the Minister could, thus,
not be found to have acted unreasonably, wrongfully, unlawfully and unjustifiably in
depriving Mr Rensburg of his liberty.

The SCA found that where, such as in this matter, the police acted within the prescript
of the law, no fault should have been attributed to them. To hold otherwise would have
been placing unreasonable constraints on the police when carrying out their duties to
enforce the law for the benefit of all. Thus, the SCA held that the finding of the high
court that the police acted correctly and lawfully could not be faulted. There was thus
no reason to hold the Minister liable for the contented unlawful arrest and detention of
Mr Rensburg until 23 September 2016.

~~~~ends~~~~