Malibongwe Jemsana v Minister of Police

The plaintiff, Malibongwe Jemsana, instituted an action for damages against the Minister of Police arising from his arrest and detention on 28 February 2018 in the Ngqeleni district. He alleged that the arrest, search of his premises, and subsequent detention were unlawful. The trial court dismissed his damages claim. Jemsana then applied for leave to appeal, contending that the court had erred in its interpretation and application of various statutory provisions governing police search, arrest, and detention powers, including sections 13(7) of the South African Police Act 68 of 1995 and sections 22(b), 40(1)(b) and (h) of the Criminal Procedure Act 51 of 1977. He further alleged that the court failed to properly consider case law on unlawful detention, discretion to arrest, and the effect of an alleged assault by police.

The application for leave to appeal was dismissed, and the applicant was ordered to pay the respondent’s costs.

The judgment reinforces the stringent threshold for granting leave to appeal under section 17(1) of the Superior Courts Act. It clarifies the application of statutory police powers relating to warrantless searches, arrests, and detention, and illustrates how courts assess informer-based suspicion and the exercise of police discretion. The case also underscores the importance of proper pleadings in civil claims for unlawful arrest and detention.