- Two High Court judgments delivered on 20 February 2026 reaffirm that arrest under Section 40 of the Criminal Procedure Act is discretionary and must be rationally exercised, even in serious rape allegations.
- The Mpumalanga and North West divisions both held that detention does not become lawful simply because an arrest occurred and must be independently justified.
- Combined damages exceeding R2 million were awarded after the State failed to properly explain arrest decisions, continued detention and prosecution choices.
When police arrest someone, it’s not just ticking a box. Taking away a person’s freedom is a big step, and if officers don’t seriously think things through, it can cost the state millions.
Two recent High Court judgments make it clear that if police cannot explain and justify why they arrested and detained someone, the arrest is unlawful and the government will have to pay.
Acting Judge N Ngwenya of the High Court in Mbombela considered the claim of Noah Mathebula Nkavdzi, who was arrested in March 2020 after being informed that rape complaints had been opened against him. He was detained and later released without prosecution. The Minister of Police did not call the arresting officer to testify or explain why the arrest was considered necessary instead of less intrusive measures.
Judge Ngwenya relied on Minister of Safety and Security v Sekhoto and Another, where the Supreme Court of Appeal held, “Once the jurisdictional facts for an arrest … are present, a discretion arises.”
The court further quoted the warning that a peace officer, “is not obliged to effect an arrest” and that the discretion “must be properly exercised.”
Judge Ngwenya emphasised that an officer is not compelled to arrest merely because jurisdictional requirements are present. The absence of testimony from the arresting officer meant there was no evidence before the court explaining why liberty had to be curtailed.
Given that Nkavdzi was ultimately released without prosecution, the court concluded that the arrest was unwarranted and therefore unlawful. The Minister of Police was ordered to pay R1 560 009 for unlawful arrest and detention and R100 000 for past loss of income, together with interest and costs.
Monchojang v Minister of Police and Others
In the High Court in Mahikeng, Acting Judge JT Maodi dealt with the claim of Tebogo Edward Monchojang, who was arrested in August 2022 on allegations of raping a minor child. He was detained for 10 days before being released on bail. The charges were later withdrawn after several postponements.
Judge Maodi applied the objective test for reasonable suspicion articulated in Mabona and Another v Minister of Law and Order and Others, which requires that suspicion be based on “solid grounds” and critically assessed. The judgment stressed that a reasonable officer must analyse the quality of the information at hand before effecting an arrest, particularly given that an arrest authorises drastic interference with personal liberty.
Judge Maodi made the position plain: “Arrest does not automatically make detention lawful.”
The court found no evidence justifying Monchojang’s continued detention beyond his first appearance and noted that no proper explanation was placed before the court for the repeated postponements before the charges were withdrawn. The prosecution was found to be without basis and therefore malicious. The Minister of Police and the National Director of Public Prosecutions were held jointly and severally liable and ordered to pay R350,000 with interest and costs.
The constitutional standard
Both courts aligned their reasoning with the Constitutional Court’s approach in De Klerk v Minister of Police, where it was held, “The deprivation of liberty, through arrest and detention, is per se prima facie unlawful.”
The Constitutional Court further emphasised that liability for detention, including after a first court appearance, must be assessed through principles of legal causation and constitutional fairness. What matters is whether there was substantive justification for depriving a person of liberty, not whether the machinery of the criminal process simply continued to operate.
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