Malibongwe Jemsana v Minister of Police

The applicant brought an action for damages against the Minister of Police for alleged unlawful arrest and detention on 28 February 2018 in the district of Ngqeleni. The applicant's action was dismissed on 15 May 2025. Sgt Sisa Ntlatywa had received information from an informer that the applicant was dealing in dagga. Acting on this information late at night, the officer proceeded to the applicant's residence in Nomadolo village, questioned the applicant, and conducted a search without a warrant, discovering dagga on the premises. The applicant was arrested and detained before being brought to court. The area had a high incidence of drug-related offences. A substantial quantity of dagga was found, the applicant was unknown to the police, and there was considerable distance between the village and Ngqeleni police station. The applicant subsequently applied for leave to appeal the dismissal of his claim.

• Whether the court erred in its interpretation and application of section 13(7) of the South African Police Act 68 of 1995
• Whether the requirements of section 22(b) of the Criminal Procedure Act 51 of 1977 for a warrantless search were met
• Whether the requirements of section 40(1)(b) and (h) of the CPA for arrest without warrant were met
• Whether Sgt Ntlatywa properly verified the informer's information before proceeding with the arrest
• Whether the detention was lawful and whether the officer properly exercised his discretion in detaining rather than issuing a written notice to appear
• Whether the principles in Zealand v Minister of Justice regarding unlawful detention were properly applied
• Whether an assault on the applicant demonstrated unlawfulness of the arrest

The application for leave to appeal was dismissed with costs against the applicant.

1. For purposes of section 22(b) of the CPA (warrantless search), an officer has reasonable grounds where he receives information from an informer, considers the late hour and distance that would allow concealment of evidence, even if the suspect is unaware of the impending search. 2. For purposes of section 40(1)(b) and (h) of the CPA (arrest without warrant), a police officer properly verifies an informer's information and does not rely solely on it where he questions the suspect and conducts a search that discovers the contraband before arresting. 3. Even where arrest is lawful, an officer must exercise discretion on whether to detain or issue a written notice to appear, considering factors including: seriousness of the offence, quantity of contraband, whether suspect is known to police, time and location, distance to police station, and consequences if found guilty. 4. For leave to appeal under section 17(1) of the Superior Courts Act, there must be a reasonable prospect of success - meaning a sound, rational basis to conclude there is a realistic chance of success, not merely an arguable case or one that is not hopeless. 5. A court is constrained to decide only issues properly pleaded; conduct not pleaded (such as assault) cannot form the basis of a claim even if mentioned in evidence.

The court noted that the assault on the applicant by Sgt Ntlatywa and his colleagues was "shocking" conduct, but observed that the reason it was never pleaded "remains entirely unknown." This suggests judicial disapproval of the police conduct while acknowledging the procedural constraint that prevented the court from addressing it. The court also commented that the applicant's legal representative appeared to concede the point regarding section 13(7) of the Police Act during argument, and that the applicant did not pursue the assault point strenuously during argument.

This judgment reinforces the principles governing warrantless searches and arrests under sections 22(b) and 40(1) of the Criminal Procedure Act. It emphasizes that police officers must verify information from informers before arresting, but verification can be achieved through questioning and searching before arrest - they need not arrest solely on the informer's word. The case demonstrates the application of the reasonable prospect of success test for leave to appeal and confirms that even where conduct is shocking (such as assault), it must be properly pleaded to be adjudicated. It also illustrates the proper exercise of police discretion in deciding between detention and issuing a notice to appear, considering factors such as seriousness of offence, quantity of contraband, knowledge of the suspect, time and place, and risk of absconding.