Inga Mkoko v Minister of Police

On 4 April 2020, during the COVID-19 lockdown, the plaintiff was at a car wash business owned by his uncle Mntsantsa in Ngcobo, where he claimed to be doing landscaping work. Police officers arrived at approximately 7pm in response to reports of a gathering at the premises, which contravened the COVID-19 Disaster Management Regulations. The police found groups of people gathered outside and around the car wash. While police were dispersing the crowd, the plaintiff came out and began smoking a cigarette. Police approached him, and an altercation ensued. The plaintiff was arrested without a warrant and detained at Dalasile Police Station until approximately 8am the following morning, when Sergeant Gcume released him. The plaintiff claimed he was brutally assaulted by police officers during the arrest and at the police station, suffering injuries including bruises, lacerations, and a head injury. He was given a notice to appear in court for contravening COVID-19 regulations. The plaintiff only sought medical attention on 20 May 2020 to complete J88 forms for a criminal complaint against the police.

• Whether the plaintiff's arrest without a warrant was lawful under section 40(1)(a) of the Criminal Procedure Act 51 of 1977
• Whether the plaintiff's detention was lawful and justified
• Whether members of the South African Police Service unlawfully assaulted the plaintiff
• Whether the plaintiff discharged the onus of proving assault on a balance of probabilities
• Whether the defendant justified the arrest and detention of the plaintiff during COVID-19 lockdown regulations

The plaintiff's claims were dismissed with costs on a party-and-party scale on a magistrate's court scale.

A warrantless arrest under section 40(1)(a) of the Criminal Procedure Act 51 of 1977 is lawful where: (1) the arrestor is a peace officer; (2) an offence has been committed or attempted by the suspect; and (3) the offence or attempt occurred in the presence of the arrestor. Contraventions of COVID-19 Disaster Management Regulations (such as not being at one's place of residence during lockdown and obstructing police in the performance of their duties) constitute offences justifying arrest under section 40(1)(a) when committed in the presence of a peace officer. Detention of an intoxicated person is lawful and justified where necessary to allow the person to regain sobriety for their own safety and the safety of others. In civil claims for assault where the plaintiff bears the onus, material contradictions, exaggerations of injuries, and significant delays in seeking medical attention without reasonable explanation may render the plaintiff's evidence unreliable and result in failure to discharge the onus on a balance of probabilities.

The court observed that the plaintiff's failure to seek medical attention until 20 May 2020 (46 days after the alleged assault) was a clear indication that he suffered no serious injuries as a result of police conduct, particularly since emergency medical treatment was not prohibited during lockdown. The court noted that had the plaintiff suffered the severe injuries he claimed (including being unable to set his right foot on the ground), these would have been recorded when he appeared in court on 28 April 2020, but no such notation was made by the Magistrate. The court also commented that it was highly improbable that Sergeant Gcume would have returned the plaintiff to the car wash (which was not his home) rather than to his actual residence at Masonwabe. The judgment implicitly recognizes that police officers exercising discretion during the COVID-19 pandemic were focused on dispersing gatherings rather than mass arrests, reflecting a proportionate approach to enforcement.

This case clarifies the application of section 40(1)(a) of the Criminal Procedure Act in the context of COVID-19 Disaster Management Regulations, confirming that police officers may arrest without warrant for contraventions of lockdown regulations occurring in their presence. It demonstrates the application of the jurisdictional requirements for warrantless arrest: (a) the arrestor must be a peace officer; (b) an offence must have been committed or attempted; and (c) the offence must occur in the arrestor's presence. The judgment reinforces the onus on defendants in delictual claims to justify arrests and detentions, while emphasizing that plaintiffs claiming assault must discharge their onus on a balance of probabilities. It illustrates how courts assess credibility and reliability when faced with mutually destructive versions, particularly regarding the significance of material contradictions, exaggerations, and delays in seeking medical attention. The case also confirms that detention may be justified where necessary for the safety of an intoxicated detainee and others.