THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 759/2020

In the matter between:

CHRISTIAAN BRITS

APPELLANT

and

MINISTER OF POLICE                                                               FIRST RESPONDENT
COLONEL JAMES ESPACH

SECOND RESPONDENT

Neutral citation:
Brits v Minister of Police & Another (759/2020) [2021] ZASCA 161
(23 November 2021)
Coram:
PETSE AP and MATHOPO, MOCUMIE, MOLEMELA and
MOTHLE JJA
Heard:

25 August 2021
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives via email, publication on the Supreme Court of
Appeal website and release to SAFLII. The date and time for hand-down
is deemed to be 10h00 on 23 November 2021.
Summary:
Delict – unlawful arrest and detention – vicarious liability of the Minister
of Police – appropriate amount of compensation.

___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: Limpopo Division of the High Court, Polokwane (Makgoba JP and
Mudau J sitting as court of appeal):

The appeal is upheld with costs.
The order of the high court is set aside and replaced with the following:
‘1
The appeal is upheld with costs.
The order of the Magistrates’ Court, Tzaneen, is set aside and replaced
with the following:
“(a)
The first defendant is ordered to pay R70 000 as general damages to
the plaintiff.
(b)
The first defendant is ordered to pay R7 239.
(c)
The amounts in paragraphs (a) and (b) above shall bear interest at the
prescribed rate from date of the judgment of the Magistrates’ Court,
Tzaneen, being 11 January 2018 to date of payment.
(d)
The first defendant is ordered to pay the plaintiff’s costs of suit.”’
___________________________________________________________________
JUDGMENT
___________________________________________________________________

Molemela JA (Petse AP and Mathopo, Mocumie and Mothle JJA concurring)

Introduction
[1] This appeal arises from a delictual claim for damages instituted by the
appellant, Mr Christiaan Brits as the plaintiff, against the respondents as the
defendants in the Magistrates Court, Tzaneen (the trial court). The basis of the claim
was that the second respondent, Col Espach, (cited as the second defendant in the
trial court) had acted wrongfully and unlawfully when he arrested the appellant without
a warrant at the latter's business premises, a dealership in second hand goods and
scrap metal, on suspicion of being complicit in the offence of possession of property
suspected to be stolen. The claim against the first respondent, the Minister of Police

(cited as the first defendant in the trial court), was on the basis of vicarious liability.
The trial court found that the arrest was justified and thus dismissed the appellant’s
claim with costs. The appellant appealed to the Limpopo Division of the High Court
(the high court). That court, per Mudau J with Makgoba JP concurring, dismissed the
appeal with costs. Aggrieved by that decision, the appellant sought and was granted
special leave by this Court.

Background facts
[2] The circumstances leading to the appellant’s arrest are largely undisputed. The
appellant stated in his evidence-in-chief that metal scrap dealers were regulated by
law in relation to the sale and purchase of second-hand goods. He testified about the
procedure normally followed at his shop whenever a seller offered to sell scrap metal.
This procedure was in apparent reference to the Second-Hand Goods Act 6 of 2009
(Second-Hand Goods Act), which prescribes that all scrap metal dealers engaged in
recycling of any controlled metals be registered and keep a register that contains the
details of the seller, a description of the product sold, as well as the price involved in
the object of sale. He stated that the scrap metal offered for sale is usually a mixture
of different metals, like aluminium, iron, pieces of stone and pieces of plastic.
According to the appellant, once the metal is brought to his shop, the process followed
by the shop-assistants entailed separating and sorting different metals out. After the
sorting process, ‘the metal is then weighed, written up in the register, the price
calculated, the ID document [of the seller] would be photocopied, and then the person
leaves with his money’. His explanation of the procedure followed at his shop was not
disputed by the respondents.

[3] On the morning of 4 July 2014 the appellant received a text message from his
former employee, Mr Dube, asking the appellant to phone him. He ignored the text
message. About 30 minutes later, Mr Dube sent a message to his phone via the short
message service (SMS) informing him that he had copper for sale. He told Mr Dube
to take it to the shop. He explained that the reason he directed him to the shop was
because all business transactions were done at his business premises. He
subsequently received a call from the manager of his business, Mr Michael Mashapu
(Mr Mashapu), who told him that the police were at the business premises and required
his presence. Upon arrival at the shop, Col Espach told him that Mr Mashapu had

purchased stolen copper and the appellant would therefore be arrested. He informed
Col Espach that Mr Dube had sent him an SMS offering to sell him copper. He
professed his innocence and even offered to assist Col Espach to locate Dube. After
reading the SMS exchange, Col Espach confiscated his phone and then arrested him.
He was detained from about 12h00 and subsequently released on bail the following
day, 5 July 2014, at about 13h00. As a result of the arrest, he engaged the services of
a legal representative. He incurred legal expenses in the amount of R7239 in respect
of the bail proceedings. The appellant’s version of events was not controverted.

[4] Mr Mashapu testified that on the day of the incident, three men entered the
shop and offered to sell scrap metal that was contained in a bag. While he and a
female shop assistant were in the process of examining the items that were brought
to the shop by these men, Col Espach entered the shop. He was dressed in civilian
clothing. He grabbed one of the three men, identified himself as a police officer and
produced his appointment card. The three persons all managed to flee. He maintained
that Col Espach entered the shop before he and his female colleague had had an
opportunity of inspecting the contents of the bag. At that moment, the contents of the
bag had not yet been weighed and no transaction to purchase its contents had been
entered into. He also pointed out that at that stage, he bore no knowledge of the SMS
exchanges between the appellant and Dube. According to Mr Mashapu, the appellant
had, at no stage, instructed him to buy or take possession of the items brought to the
shop by the three men. He further testified that after Col Espach had introduced
himself to him, he called the appellant to apprise him of the situation. While he was
talking to the appellant, Col Espach took the phone from him and instructed the
appellant to come to his shop, indicating that he intended arresting him.

[5] Although Mr Mashapu’s evidence was that he was not allowed to purchase
second-hand copper, it was common cause that the appellant, in the normal course of
his business as a second-hand scrap metal dealership, was permitted to deal in all
types of metals within the precepts of the law. Mr Mashapu’s evidence regarding the
procedure followed when a seller was offering to sell second hand goods accorded
with that of the appellant. He confirmed the procedures as set out by the appellant,
commencing with the assessment of the nature of the goods brought by the seller and
culminating with the recordal of the information in the register and the filing of a copy

of the seller’s ID document. He explained that the metals usually brought to the shop
for sale consisted mostly of aluminium, radiators and stainless steel metal sheets. He
explained that sorting the material offered for sale was important as different metals
had varying prices. Whenever someone was selling various metals, the metal would
first be sorted before being weighed. I interpose to mention that to the extent that Mr
Mashapu’s account of events was not challenged, it must be accepted as correct.1

[6] Colonel Espach testified that on 4 July 2014 he was on duty and had stopped
his unmarked vehicle at a petrol station when he saw two men walking in the street
carrying what seemed to be a very heavy bag. The two men were coming from the
direction of some smallholdings in the area, which was an area that was beset with
the theft of copper cables, borehole shafts and transformers. The men were struggling
to carry the bag. This fortified his suspicion that the contents of the bag could be
copper cables stolen from the industrial area. He decided to watch the movements of
these persons in the hope that they would lead him to the kingpin who had created a
market for the theft of copper cables.

[7] He observed a third man (who was later identified to him as Mr Dube)
approaching the duo with a shopping trolley and noted that the heavy bag was loaded
on the trolley, whereafter the trio walked together in the direction of a second-hand
metal dealership. He phoned his colleagues, reported on his observations and asked
for a back-up team to be dispatched. He followed the trio and saw them entering a
second-hand metal dealership with the shopping trolley. Watching from the street
while awaiting the arrival of the back-up team, he noticed that the bag was taken out
of the trolley and put on a counter, whereafter it was attended to by two shop
attendants, who later turned out to be Mr Mashapu and an elderly lady. He realised
that a transaction was in progress but did not ascertain whether the transaction was
concluded because he was moving up and down in the street so that the back-up team
could see him. He decided to enter the shop to confront all the persons who were
involved in the transaction, as he feared that the men in question would soon leave
the premises.

1 President of the Republic of South Africa and Others v South African Rugby Football Union and Others
[199] ZACC 11; 1999 (10) BCLR 1059; 2000 (1) SA 1 (CC) para 62.

[8] Upon entering the shop, he produced his appointment card, introduced himself
and ordered everyone to stand still. At that point, one of the two men who had initially
carried the bag pushed him out of the way and the two of them headed for the door.
He grabbed one of them, but Mr Dube loosened his grip to help the man escape. He
tried chasing the two men in the street, but they outran him. In the intervening period,
Mr Dube also fled the scene.

[9] He stated that once he was back at the appellant’s shop, he ordered everyone
to remain inside until the backup team arrived. He learnt that the person behind the
counter, Mr Mashapu, was the manager of the business. He noticed that the bag
previously carried by the suspects who had fled was placed on the counter and that
the contents thereof had been put in a sack belonging to the shop. Upon the arrival of
his back-up colleagues, it was discovered that the contents of the bag were copper
cables that had been cut into pieces. The pieces of copper were weighed and found
to weigh 29.8 kg. He asked Mr Mashapu to phone the owner of the business. The
appellant subsequently arrived at the premises and introduced himself as the owner
of the dealership.

[10] Upon the appellant's arrival, he (Col Espach) requested to see his cellular
phone. Without asking for the appellant’s permission, he looked at the messages on
the appellant’s cellular phone. He discovered that the appellant had had an SMS
exchange with Mr Dube, in terms of which Mr Dube had offered to sell him copper.
The SMS exchange revealed that in response to the appellant’s enquiry about the
weight of the copper, Mr Dube had informed him that it weighed 20kg. The appellant
had then told Mr Dube to take it to his shop. The SMS exchange led him to suspect
that the appellant was complicit in the theft of the copper cables that were brought to
his shop. On the basis of that suspicion, he decided to arrest the appellant without a
warrant and took him to the police station, where he was kept in detention until he was
released on bail on the afternoon of 5 July 2014. The appellant furnished Mr Dube’s
address to the police and he was later arrested.

[11] Under cross examination, Col Espach conceded that the appellant was, as a
second-hand dealer, allowed to buy copper. He stated that his concern was that the

appellant had been contacted directly by the seller ‘as if it is a special copper that
needs to be delivered that side’. He also conceded that even though he had
confiscated the appellant’s phone, a transcript of the SMS exchange was not available
to be handed in as evidence. His evidence that Mr Dube had told the appellant that
the copper weighed 20kg thus remained unsubstantiated.

[12] Colonel Usiba was called as the respondents’ witness. He confirmed that he
was part of the back-up police team summoned to the scene by Col Espach. He stated
that upon his arrival at the shop, he and his colleagues were shown a mealie meal
sack containing copper cables. The copper cables were on the counter, near the scale.
Furthermore, he confirmed having seen the SMS exchange between the appellant and
Mr Dube in relation to the copper that Mr Dube was asked to bring to the shop. Under
cross-examination, he conceded that one could not easily tell that the copper brought
to the shop was burnt. None of the companies approached during police investigations
were able to identify the copper as their property. The investigating officer, Mr
Rasebotsa, also testified as the respondents’ witness. Nothing turns on his evidence.
Suffice to mention that he stated that, from his point of view, the proceedings were still
pending.

[13] It is common cause that the appellant, Mr Dube and a third co-accused
appeared before the magistrate's court in Tzaneen on a charge of possession of
property suspected to be stolen in contravention of s 362 of Act 62 of 1955. It appears
that the charges were then provisionally withdrawn on 17 November 2014, apparently
to allow for the re-arrest of Mr Dube, who had absconded whilst out on bail. The trial
commenced on 5 September 2016 and was concluded on 24 March 2017.

Legal principles applicable to an arrest without a warrant
[14] In their plea, the respondents admitted the appellant’s arrest without a warrant
and his subsequent detention. Their justification of the arrest was simply set out as

2 Section 36 of Act 62 of 1955 provides:
‘Failure to give a satisfactory account of possession of goods
- Any person who is found in possession of any goods ... in regard to which there is reasonable
suspicion that they have been stolen and is unable to give a satisfactory account of such possession,
shall be guilty of an offence and liable on conviction to the penalties which may be imposed on a
conviction of theft.'

follows: ‘… the arrest was lawful as the Plaintiff was arrested for possession of
suspected stolen property.’ It is trite that the arrest and detention of any person
are prima facie wrongful, as they amount to a deprivation of a person's liberty. Section
12 of the Constitution guarantees every person the right not to be deprived of freedom
arbitrarily or without just cause and not to be detained without trial. In Minister of Safety
and Security v Van Niekerk,3 the Constitutional Court stated as follows:
’17. . . . [T]he constitutionality of an arrest will almost invariably be heavily dependent on its
factual circumstances.
…
20. [I]t would not be desirable for this Court to attempt in an abstract way divorced from the
facts of this case, to articulate a blanket, all-purpose test for constitutionally acceptable
arrests.’

[15] As regards the onus to prove the lawfulness of an arrest, the Constitutional
Court in Mahlangu and Another v Minister of Police,4 said:
‘It follows that in a claim based on the interference with the constitutional right not to be
deprived of one’s physical liberty, all that the plaintiff has to establish is that the interference
has occurred. Once this has been established, the deprivation is prima facie unlawful and the
defendant bears an onus to prove that there was a justification for the interference.’
In this matter, the arrest was not in dispute; it was therefore common cause that the
respondent bore the onus to prove the lawfulness thereof.

[16] Section 40 of the CPA provides, in relevant parts, as follows:
‘40 Arrest by peace officer without a warrant
(1) A peace officer may without a warrant arrest any person-
…
(b) whom he reasonably suspects of having committed an offence referred in Schedule 1,
other than the offence of escaping from lawful custody.
. . .
(e) who is found in possession of anything which the peace officer reasonably suspects
to be stolen property or property dishonestly obtained, and whom the peace officer
reasonably suspects of having committed an offence with respect to such thing.’

3 Minister of Safety and Security v Van Niekerk 2008(1) SACR 56 (CC); 2007 (10) BCLR 1102 (CC)
paras 17 and 20.
4 Mahlangu and Another v Minister of Police [2021] ZACC 10; 2021 (7) BCLR 698 (CC) para 32.

[17] The respondents did not, in their plea, specify the subsection of s 40 on which
they relied for their justification of the appellant’s arrest. The trial court proceeded on
the premise that reliance was placed on s 40(1)(b) of the Criminal Procedure Act. The
high court, traversed both s 40(1)(b), on the basis of the charge preferred against the
appellant being listed in Schedule 1 of the CPA, and s 40(1)(e), which provides that ‘a
peace officer may without warrant arrest any person who is found in possession of
anything which the peace officer reasonably suspects to be stolen property or property
dishonestly obtained, and whom the peace officer reasonably suspects of having
committed an offence with respect to such thing’.

[18] In Duncan v Minister of Law and Order for the Republic of South Africa
(Duncan)5 it was held that an arrest without a warrant would be justified as envisaged
in s 40(1)(b) of the CPA if the following jurisdictional facts were present: (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 learned Judge of
Appeal stated further that ‘If the jurisdictional requirements are satisfied, the peace
officer may invoke the power conferred by the subsection; ie, he [or she] may arrest
the suspect. In other words, he [or she] then has a discretion as to whether or not to
exercise that power (cf Holgate-Mohamed v Duke [1948] 1 All SA ER 1054 (HL) at
1057). No doubt the discretion must be properly exercised. But the grounds on which
the exercise of such a discretion can be questioned are narrowly circumscribed.’

[19] Applying the same reasoning as in Duncan, the jurisdictional factors that have
to be proved by a defendant who relies on s 40(1)(e) as a defence are: (i) the arrestor
must be a peace officer; (ii) the suspect must be found in possession of property; (iii)
the arrestor must entertain a suspicion that the property has been stolen and illegally
obtained; (iv) the arrestor must entertain a suspicion that a person found in possession
of the property has committed an offence in respect of the property; and (v) the
arrestor’s suspicion must rest on reasonable grounds. It is trite that once the

5 Duncan v Minister of Law and Order for the Republic of South Africa (Duncan) [1986] 2 All SA 241
(A); 1986(2) SA 805 (A) at 818F-H.

jurisdictional facts for an arrest in terms of any one of the paragraphs of s 40(1) are
present, a discretion arises.6

[20] The following remarks made by the court in Mabona and Another v Minister of
Law and Order and Others (Mabona)7 in relation to the issue of a reasonable suspicion
are apposite:
‘The test of whether a suspicion is reasonably entertained within the meaning of s 40 (1)(b) is
objective. . . . 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.’
These remarks are, mutatis mutandis, equally apposite in relation to the provisions of
s 40(1)(e).

Application of the legal principles to the facts
[21] The fundamental question is whether Col Espach, prior to the arrest,
reasonably suspected the appellant of having committed an offence in respect of the
copper cables brought to his shop by the three men. The trial court and the high court
found that he did. The ratio of the decision of the high court can be found in the
following passage:

6 Ibid.; also see Minister of Safety and Security v Sekhoto and Another [2010] ZASCA 141; 2011 (5) SA
367 (SCA) para 28.
7 Mabona and Another v Minister of Law and Order and Others 1988(2) SA 654 (SCE) at 658E-G.

‘On the probabilities, [Mr Mashapu] would not have started the process of measurement,
before the contents of the bag were ascertained. The measurement of the copper
presupposed an important end-stage, receipt of the copper on behalf of the shop. Colonel
Espach intervened at the stage when the copper was weighed, consistent with the laid down
procedure in the shop. What remained was payment for the copper to the sellers and for the
relevant details to be entered in the register.
Objectively considered, the arresting police officer in this matter had reasonable grounds for
his suspicion and exercised his discretion accordingly. His suspicion that the appellant was
involved in the sale of illicit copper was completely justified by the peculiar circumstances. In
this case, the appellant, on his version, told a former employee to deliver copper to his shop.
On his version, the appellant suspected that the copper was stolen.
Prima facie, the appellant exercised constructive control of the copper through his employee,
[Mr Mashapu]. That the copper was stolen is fortified by the fact that those who brought it,
including the former employee, Dube, are at large, which gave rise to the authorization of a
warrant of arrest and the temporary withdrawal of the charges.’

[22] The difficulty for the respondents is that none of the findings in the passage
above are borne out by any evidence at all. The appellant never conceded that the
contents of the bag were stolen property. The high court therefore erred in finding that
the appellant had made such a concession. It seems to me that the high court
considered certain parts of the evidence in isolation instead of analysing the evidence
in its entirety.8 It failed to take into account that, by Col Espach’s own admission, at
the time when he was standing in the street, he was not focused solely on what was
happening in the shop because he was also on the lookout for the expected arrival of
the back-up team. A significant concession which does not seem to have been taken
into account by the high court is that Col Espach admitted that he entered the shop
before the transaction was finalised.

[23] There can be no debate that a buyer dealing with second-hand goods would
first want to see the goods offered to him before deciding whether or not to purchase
them. The appellant's and Mr Mashapu’s testimony about the protocols followed at the
appellant’s shop are plausible. Notably, Mr Mashapu’s evidence that Col Espach
entered while he was busy inspecting the contents of the bag was not disputed.

8 S v Shilakwe 2012 (1) SACR 16 (SCA) at 20, para 11.

Similarly, it was not put to him that by the time Col Espach entered the shop, he (Mr
Mashapu) had already weighed the copper cables. Under such circumstances, the
high court’s findings that ‘[t]he measurement of the copper presupposed an important
end-stage, receipt of the copper on behalf of the shop’ and that ‘Col Espach intervened
at the stage when the copper was weighed’ are clearly erroneous.

[24] It is clear from Col Espach’s own version that he acted hastily and pounced
prematurely, as the transaction had not yet been concluded. In terms of the Second-
Hand Goods Act, a buyer must inspect the goods and satisfy himself or herself that
the seller is in lawful possession of the goods in question before buying them. The
second-hand dealer must also record the details of the transaction in a register. The
Act further imposes a duty on the second-hand dealer to report any suspicious items
to the police and obtain an acknowledgment that he or she made a report. Mr
Mashapu’s evidence was that Col Espach entered the shop before he had had an
opportunity to follow the protocols set out in the Act. That being the case, his
compliance with that Act was interrupted by Col Espach at the stage when he was
determining the contents of the bag. He can therefore not be faulted for the absence
of the relevant documentation.

[25] It is significant that on Col Espach’s own evidence, money had not yet
exchanged hands. This must be the reason why the three men were still in the shop
when Col Espach arrived at the scene. The persons who brought the copper cables
to the appellant’s shop fled as soon as Col Espach had introduced himself. It could
therefore not be established whether Mr Mashapu would have purchased the contents
of the bag or not. Objectively considered, a reasonable police officer who was privy to
the same information as Col Espach would not have reasonably suspected that the
appellant was complicit in the three suspects’ possession of the copper cables. There
was simply no basis for such a suspicion.

[26] As regards the SMS exchange, both the trial court and the high court lost the
context of the circumstances under which the SMS text messages between the
appellant and Mr Dube were exchanged. The explanation given by the appellant for
the SMS exchange was reasonable. This is more so the case because the appellant
is the one who volunteered the information pertaining to the SMS exchange between

himself and Mr Dube, to Col Espach. The undisputed evidence was that Mr Dube had
sent the appellant a text message requesting him to phone him and the appellant had
ignored that message because he did not want to talk to him. The appellant’s evidence
that he did not want to speak to Mr Dube because he had dismissed him over theft is
a plausible version that was confirmed by Mr Mashapu. Even on Col Espach’s version,
Mr Dube was merely told to take the copper to the shop. Nothing in Col Espach’s
evidence suggested that the SMS exchange was incriminatory. There was no basis
for the trial court’s conclusion that a transaction for the sale of copper was concluded
via SMS.

[27] The respondents’ pleaded case was that the appellant had been found in
possession of property suspected to be stolen. According to Snyman, a person is
‘found in possession’ within the contemplation of s 36 of Act 62 of 1955 if he or she
has personal and direct control over the goods suspected of having been stolen; it is
not sufficient that he exercises control through an agent or a subordinate.9 The high
court found that the appellant had exercised constructive control of the copper cables
through Mr Mashapu. Relying on an obiter statement in S v Wilson (Wilson),10 the high
court reasoned that the appellant was in possession of the copper cables even though
he was not physically present at the shop when they were found. In that case,
possession of dagga was imputed to the appellant as the owner of the premises where
dagga was found in a locked storage area in the appellant’s absence.

[28] Reliance on the Wilson judgment is misplaced, in my view, as this case is
distinguishable both on the facts and the law. First, the charge in that matter related
to the possession of dagga and not the possession of good suspected to be stolen as
set out in s 36 of Act 62 of 1955; second, the court expressly stated that it was not
necessary for it to decide the precise meaning of the expression ‘found in possession’
as used in s 36 of Act 62 of 1955; third, the court accepted that the owner of the
property had exercised a measure of control over the illicit goods; fourth, in coming to
its conclusion that the appellant in that matter was in possession of the dagga, the

9 CR Snyman, Criminal Law, 5th ed at 525.
10 S v Wilson 1962 (2) SA 619 (A).

court inter alia took into account that the appellant had, at the time when the dagga
was found, admitted that it was his property.

[29] In this matter, the appellant had never been shown to have exercised any
control over the illicit goods. Contrary to the high court’s finding, he never admitted to
knowing that the copper cables were stolen. On Col Espach’s own evidence, the bag
containing the copper cables was still on the counter when he entered the shop and
had not been locked away. Under those circumstances, I am not persuaded that Mr
Mashapu ever assumed possession of the copper cables in question. Mr Mashapu
categorically stated that the appellant had not, prior to the three men’s arrival at the
shop, instructed him to purchase or take possession of the contents of their bag.
Therefore, there can be no question of Mr Mashapu having accepted the copper
cables as an agent on behalf of the appellant or the appellant having exercised
constructive control of the copper through Mr Mashapu. It would therefore be wrong
to impute unlawful possession of the copper in question to the appellant. Insofar as
the high court found this to have been the case, it erred.

[30] On a holistic consideration of all the evidence, the circumstances under which
the goods suspected to be stolen ended up at the appellant’s shop were in part within
the knowledge of Col Espach as he had witnessed their conveyance to the appellant’s
shop. Furthermore, the appellant proffered a reasonable explanation regarding the
circumstances surrounding his SMS exchange with Mr Dube. Armed with all of that
information, any further suspicion on the part of Col Espach could only have fallen
within the category of a ‘flighty or arbitrary, and not a reasonable suspicion’.11 To the
extent that Col Espach continued to harbour a suspicion notwithstanding the plausible
explanation given by the appellant, his suspicion did not pass the test laid down in
Mabona and was therefore not reasonable.

[31] Another significant consideration is that the respondents did not dispute the
evidence that when Col Espach phoned the appellant, he told him that he must come
to the shop so that he could arrest him. Bearing in mind his evidence that he wanted
to arrest the ‘kingpin’ who ordered stolen goods and created a market therefor’, the

11 Mabona and Another v Minister of Law and Order and Others, footnote 7 above at 658H.

ineluctable inference is that Col Espach had made up his mind to arrest the appellant
long before he even arrived on the premises and did not apply his mind to the
appellant’s explanation pertaining to the SMS exchange.

[32] For all the reasons mentioned above, I am of the view that a police officer
possessed of all the information, including the SMS exchange and the explanation
therefor, would not have reasonably suspected that the appellant was complicit in the
unlawful possession of the copper cables. This finding is dispositive on the issue of
liability, as one of the jurisdictional factors that render an arrest without a warrant lawful
(a reasonable suspicion), is lacking. Put differently, the question whether the arrestor
exercised a discretion to effect an arrest without a warrant only comes up for
consideration once all the jurisdictional factors have been established. There is
therefore no need for this Court to address itself to the enquiry as to whether or not
Col Espach had exercised any discretion prior to effecting the arrest.12 As it was
common cause that he was acting within the course and scope of his employment with
the first respondent at the time when the appellant was arrested, it follows that the first
respondent was vicariously liable for Col Espach's wrongful acts.

The determination of quantum
[33] It is common cause that the unlawful arrest led to the appellant’s detention for
a period of approximately one day. The trial court and the high court did not consider
the issue of quantum as they found that the appellant’s arrest and detention were
lawful. Although awards of damages made in previous decisions may serve as a guide
in the consideration of an appropriate amount of damages for the injury resulting from
unlawful arrest and detention, such awards are not to be followed slavishly, for every
case must be determined on its facts.13 It must be borne in mind that the primary
purpose of an award of damages for unlawful arrest and detention is not to enrich the
aggrieved party but to offer him or her some solatium for their injured feelings.

12 See Minister of Safety and Security v Sekhoto and Another [2010] ZASCA 141; 2011 (5) SA 367
(SCA) para 28.
13 Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) para 17; Rudolph and Others v
Minister of Safety and Security and Another 2009 (5) SA 94 (SCA) para 26-29.

[34] In Kammies v Minister of Police and Another,14 the plaintiff was detained for
three days and awarded damages in the sums of R70 000. In Rahim and Others v
Minister of Home Affairs,15 this Court awarded damages ranging from R3 000 for four
days unlawful detention and R20 000 for 30 days to R25 000 for 35 days’ unlawful
detention. In De Klerk v Minister of Police,16 the Constitutional Court considered an
amount of R300 000 for approximately seven days’ detention to be fair and
reasonable. In Mahlangu and Another v Minister of Police,17 the Constitutional Court
awarded damages in the amount of R500 000 for an unlawful detention that lasted
eight months and ten days. Having considered all the facts of this case, including the
age of the appellant, the circumstances of his arrest, the relatively short duration of
the detention, I consider an amount of R70 000 to be an appropriate award of
damages for his unlawful arrest and detention. I also consider the amount of R7239,
which was paid as legal costs for the bail proceedings, to be fair and reasonable.

[35] As regards costs, there is no reason to depart from the ordinary rule that costs
follow the result.

Order
[36] In the result, the following order is granted:
The appeal is upheld with costs.
The order of the high court is set aside and replaced with the following:
‘1
The appeal is upheld with costs.
The order of the Magistrates’ Court, Tzaneen, is set aside and replaced
with the following:
“(a)
The first defendant is ordered to pay R70 000 as general damages to the
plaintiff.
(b)
The first defendant is ordered to pay R7239.
(c)
The amounts in paragraphs (a) and (b) above shall bear interest at the
prescribed rate from date of the judgment of the Magistrates’ Court,
Tzaneen, being 11 January 2018 to date of payment.

14 Kammies v Minister of Police and Another [2017] ZAECPEHC 25.
15 Rahim and Others v Minister of Home Affairs [2015] 3 All SA (SCA) paras 27 and 28.
16 De Klerk v Minister of Police [2019] ZACC 32; 2019 (12) BCLR 1425; 2021 (4) SA 585 (CC).
17 Mahlangu and Another v Minister of Police [2021] ZACC 10.

(d)
The first defendant is ordered to pay the plaintiff’s costs of suit.”’

________________________
M B MOLEMELA
JUDGE OF APPEAL

Appearances

For appellant:

C Zeitsman
Instructed by :

Johan Steyn Attorneys, Tzaneen

Symington De Kok, Bloemfontein

For respondents:

M E Ngoetjana
Instructed by:

State Attorney, Polokwane

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:
23 NOVEMBER 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
Brits v Minister of Police & Another (759/2020) [2021] ZASCA 161 (23 November
2021)
Today the Supreme Court of Appeal (SCA) handed down judgment upholding, with
costs, an appeal against a decision of the Limpopo Division of the High Court,
Polokwane (the high court).

The issue before the SCA was whether the second respondent, Col Espach, had acted
wrongfully and unlawfully when he arrested the appellant, Mr Christiaan Brits, without
a warrant at the latter's business premises, a dealership in second hand goods and
scrap metal, on suspicion of being complicit in the offence of possession of property
suspected to be stolen.

The background facts, in a nutshell, were that on the morning of 4 July 2014, the
appellant received a text message (SMS) from his former employee, Mr Dube,
informing him that he had copper for sale. Seeing that all business transactions were
done at his business premises, the appellant sent Mr Dube an SMS informing him to
take the copper to his shop. The appellant subsequently received a call from the
manager of his business, Mr Mashapu, who told him that the police were at the
business premises and required his presence. Upon the appellant’s arrival at the shop,
Col Espach told him that Mr Mashapu had purchased stolen copper and that he (the
appellant) would therefore be arrested. The appellant professed his innocence and

informed Col Espach about the SMS he had received from Mr Dube that morning. He
also offered to assist Col Espach to locate Mr Dube. After reading the SMS exchange,
Col Espach confiscated the appellant’s cellphone and then arrested him. He was
detained from about 12h00 and subsequently released on bail the following day, 5 July
2014, at about 13h00.

The respondents’ pleaded case was that the appellant had been found in possession
of property suspected to be stolen and that the arrest without a warrant was justified.
The SCA held that the appellant had never been shown to have exercised any control
over the illicit goods. It found that, contrary to the high court’s finding, the appellant
had never admitted to knowing that the copper cables were stolen. It noted that Col
Espach’s own version was that the bag containing the copper cables was still on the
counter when he entered the shop and had not been locked away. Under those
circumstances, the SCA found that the appellant had never exercised direct control
over the copper cables. It was also not persuaded that Mr Mashapu ever assumed
possession thereof. The SCA therefore held that Col Espach acted wrongfully and
unlawfully when he arrested the appellant without a warrant. In respect of the quantum
of damages, the SCA considered an amount of R70 000 to be an appropriate award
of damages for the appellant’s unlawful arrest and detention.
~~~~ends~~~~