The High Court awarded damages of R300,000 against the Minister of Police because it had been assumed that a citizen had acted fraudulently.  But in a sense her identity had been ‘stolen’ and another person living in a different province with the same name had an identical ID reference book.  The arresting sergeant had falsely assumed fraud based on the statement of the Game Store.  He failed in his legal duty to make an independent assessment before making the arrest.

Duma v Minister of Police (41429/2011) [2016] ZAGPPHC 428 (13 June 2016) per AC Basson J.


[35] I have little hesitation to find on the facts that Langa was grossly derelict in the execution of his duties and that he could not have formed a reasonable suspicion on the facts before him that Duma GP (who was about to be arrested) had committed an offence.  In fact, he could have easily determined whether she had committed an offence purely by contacting the Department of Home Affairs or by visiting her mother to establish her identity.  Sight can never be lost of the fact that, by its very nature, an arrest constitutes a severe restriction of, and interference with, a person’s freedom of movement and should therefore only be effected in circumstances allowed by the statutory prescriptions of the Criminal Procedure Act 51 of 1977 (“CPA”).

In terms of section 40 of the CPA a peace officer is authorised to arrest a person without a warrant in (inter alia) the following circumstances:

“(1) A peace officer may without warrant, arrest any person –

(a) who commits or attempts to commit any offence in his  presence;

(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other that the offence of escaping from lawful custody;”

[36] In this regard the law is clear: In terms of section 40(1)(b) of the CPA  a person can only be arrested if the arresting officer has a reasonable suspicion that the person who is about to be arrested has committed an offence as set out in Schedule 1 of the CPA.

Section 40(1)(b) of the CPA therefore includes a reasonable suspicion test or standard that depends on a reasonable person’s judgement on grounds that need not be certain or true but are at least well founded according to the objective standards of the reasonable person and with due regard to all the circumstances of the particular case.

See in this regard: Mabona and another v Minister of Law and Order and others where the court set out the legal position as follows: 1988 (2) SA 654 (SE).

“The question is whether his suspicion was reasonable.  The test of whether a suspicion is reasonably entertained within the meaning of s 40(1)(b) is objective (S v Nel and Another 1980 (4) SA 28 (E) at 33H).

Would a reasonable man in the second defendant’s position and possessed of the same information have considered that there were good and sufficient grounds for suspecting that the plaintiffs were guilty of conspiracy to commit robbery or possession of stolen property knowing it to have been stolen?

It seems to me that in evaluating his information a reasonable man would bear in mind that the section authorises drastic police action.  It authorises an arrest on the strength of a suspicion and without the need to swear out a warrant, ie something which otherwise would be an invasion of private rights and personal liberty.

The reasonable man will therefore analyse and assess the quality of the information at his disposal critically, and he will not accept it lightly or without checking it where it can be checked.

It is only after an examination of this kind that he will allow himself to entertain a suspicion which will justify an arrest.

This is not to say that the information at his disposal must be of sufficiently high quality and cogency to engender in him a conviction that the suspect is in fact guilty.

The section requires suspicion but not certainty.  However, the suspicion must be based upon solid grounds.  Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion.”

[37] It is clear from this decision that a reasonable man will at least critically assess the quality of the information at his disposal.

More importantly, he will not accept the information lightly or “without checking it where it can be checked”.  It is clear from the aforegoing that Langa did none of this.

Although it is accepted that what is required is a “suspicion” and not “certainty”, the information before Langa did not pass the threshold of suspicion especially because it was not based on solid grounds.

Moreover, Langa could easily have verified the information but was clearly not interested to do so.

See also in this regard: Olivier v Minister of Safety and Security and Another 2009 (3) SA 434 (W)  where the court with reference to the Mabona decision confirmed that the suspicion must at least be realistic and well founded: at 441A