LIKANGA V MINISTER OF POLICE

INTRODUCTION

Likanga v Minister of police (A 2025\171395)[2026] ZAGP Johannesburg High Court 824( 3- Judge bench) decided 21 July 2026

This case concerns the lawfulness of  a warrantless arrest and subsequent detention carried put by police officers, and the states liability for damages arising therefrom. The matter was brought on appeal and required the court to interpret section 40 of the Criminal Procedure Act 51 of 1977[1] in light of the Constitutional right to freedom and security of person in section 12 of the Constitution.

The central question was whether the respondent could justify both the arrest of the appellant on 27 January 2022 and his continued detention until 31 January 2022. The court was required to determine if the jurisdictional requirement for an arrest without warrant were met and whether the state discharged its burden to prove that each stage of the deprivation of liberty was lawful.

The judgement is significant because it clarifies the scope of police powers under section 40,that approach was reaffirmed by CJ Langa in Zeeland v Minister of justice and Constitutional Development,[2] unlawful detention results to the infringement of Constitutional duty to ensure that effective remedies exist where the state cannot justify the impoverishment of liberty[para 63]

FACTS OF THE CASE

On the evening of 27 January 2022, the appellant, Mr Likanga, was arrested without a warrant by members of the South African Police Service. Following his arrest, he was detained and remained in custody until his release and remained in custody until his release on Monday, 31 January 2022.

Aggrieved by the arrest and detention, the appellant instituted action against the respondent, the minister of police cited in his official capacity, claiming his continued detention were unlawful, and constituted a violation of his constitutional right to freedom and security of the person entrenched in section 12 of the Constitution.[3]

The respondent denied liability. The Minister’s case was that the arrest had been effected lawfully and without a warrant in terms of section 40(1)(a) of  the Criminal Procedure Act 51 of 1977, on the other hand in terms of section 40(1)(f) of the same Act.[4] The justification advanced was that the appellant had interfered with police officers in the execution of their duties, thereby giving rise to grounds for a warrantless arrest. The respondent further contended that the resultant detention was lawful and that the state had complied with all procedural requirements.

The parties were unable to resolve the dispute. The appeal raised questions concerning the proper interpretation and application of the powers of arrest conferred on SAPS members under section 40 of the Criminal Procedural Act,as well as the extent of the state’s obligation to justify any continued deprivation of liberty. The central factual dispute was whether the conduct of the appellant amounted to interference within the meaning of section 40(1)(f), and whether the arresting officers had been committed for the purpose of section 40(1)(a).

The outcome of the appeal would determine whether appellant was entitled to damages for unlawful arrest and detention.

LEGAL ISSUES

ISSUE 1: LAWFULNESS OF THE WARRANTLESS ARREST

Whether the arrest of the appellant on the evening of 27 January 2022 was effected lawfully without a warrant in terms of  section 40(1)(a), alternatively section 40(1)(f), of the Criminal Procedure Act 51 of 1977. specifically whether the arresting officers had committed an offence in terms of s 40(1)(a), or whether the appellant had interfered with police officers in the execution of their duties so as to justify an arrest under s40(1)(f).

ISSUE 2: LAWFULNESS OF THE CONTINUED DETENTION

Whether the state discharged its Constitutional onus to justify the continued deprivation of the appellant’s liberty from 27 January 2022 until his release on 31 January 2022. This includes whether the detention complied with the requirement the right to freedom and security of the person, and whether the procedural safeguards applicable to detention were observed.

ISSUE 3: LIABILTY OF THE MINISTER OF POLICE

Whether, in light of the above, the respondent as nominal as defendant is vicariously liable to the appellant for damages arising from an unlawful arrest and/ or unlawful detention by members of the South African Police Service.

ARGUMENTS PRESENTED

5.1 APPELLANT’S ARGUMENTS

The appellant’s central argument was that the deprivation of his liberty was unlawful at two stages.

First, he argued that the warrantless arrest on 27 January 2022 did not comply with section of the criminal procedure Act. He submitted that the arresting officers lacked reasonable grounds to suspect him of an offence under s 40(1)(a) and that he had not interfered with police officers in the execution of their duties to justify an arrest under s 40 (1)(f).

Second, and more importantly, the appellant argued that the state failed to discharged its Constitutional burden to justify the continued detention from 27 January 2022 until 31 January 2022. he relied on section 12(1) of the Constitution, submitting that the continued deprivation of his liberty was arbitrary and that the state had not shown that it was lawful. This argument placed the onus squarely on the state to prove the lawfulness of  both the arrest and the ongoing detention.

5.2 RESPONDENT ARGUMENTS

The respondent’s defense, which the court was required to evaluate, was that the arrest and detention were lawful.

On the arrest, the minister contended that it was effected lawfully without a warrant. The primary reliance was on section 40(1)(a) of the Criminal Procedure Act, with an alternative reliance on  section 40(1)(f). the specific factual basis advanced was that the appellant had interfered with police officers in the arrest within the ambit of s 40(1)(f).

On the detention, the respondent argued that the state had complied with all procedure requirements and that the continued deprivation of  liberty was therefore justified. The minister denied liability for damages on the basis that both the arrest and detention were lawful.

COURT’S REASONING AND ANALYS

1. THE INTERPRETATION OF LAW

The court began by interpreting the scope of section 40 of the Criminal Procedure Act 51 of 1977 in light of section 12 of the Constitution. It held that the appeal could not be resolved merely by asking whether the jurisdictional facts required by section 40(1)(a) existed to justify a warrantless arrest.

The court emphasized that section 40 creates an exception to the general requirement that arrests be effected with a warrant, because  the power limits the Constitutional right to freedom and security of the person, it must be interpreted narrowly. The court identified two key statutory bases raised by the respondent: section 40(1)(a), which requires reasonable suspicion of a schedule 1 offence, and section 40(1)(f),which applies where a person interferes with police officers in the execution of their duties.

Crucially, the court interpreted the law to require a two-stage enquiry. The first stage  concerned to arrest itself. The second stage concerned the subsequent deprivation of liberty. The court held that lawfulness one stage does not automatically justify lawfulness at other. Each stage required independent justification in terms of law.

2. APPLICATION OF PRECENDETS

In applying the law, the court relied on the principle established in Duncan v Minister of law and order1986 (2) SA 805 (A)[5]

In Duncan, the appellate division held that for an arrest in terms of section 40(1) to be lawful, the jurisdictional facts must exist objectively. The arresting officer must not only entertain a suspicion but must have reasonable grounds for that suspicion. The court in Duncan also emphasized that the power to arrest without a warrant must be exercised with circumspection because it infringes the right to personal liberty.

The present court adopted this approach. It held that it was first necessary to determine whether the respondent had correctly characterised the events giving rise to the arrest, consisted with Duncan’s  requirement that the factual basis the properly established. The court further applied constitutional jurisprudence flowing from section 12, which places the onus on the state to justify any deprivation of liberty. This precedent supports the court’s view that arrest and continued detention must be justified separately.

3. EVALUATION OF ARGUMENTS

The court evaluated the arguments of both parties against this legal framework.

The appellant’s submission that the issue required determination beyond a mere s40(1)(a) check was accepted by the court. The appellant argued the state failed to justify each stage of the deprivation of liberty, and the court treated this as a central issue.

The respondent, the minister, argued that the arrest was lawful under section 40(1)(a) primarily, and section 40(1)(f) in the alternative, on the basis that the appellant had interfered with police officers. The court indicated that it had to first assess whether this characterisation of events was correct before it could determine if s40 was satisfied. The respondent’s assertion that the detention was lawful also tested against the constitutional burden of proof.

4. LEGAL REASONING

The court’s ultimate reasoning was structured and sequential. First, it had to determine whether the respondent correctly charecterised the factual foundation, reliance on s40(1)(a) or (f) would fail, as per Duncan.

Second, the court held that the respondent bore the burden of proving that each stage of deprivation of the appellant’s liberty was lawful. This  included the period from 27 January  to 31 January 2022. The reasoning was that Constitutional liberty can only be limited in accordance with law, and the state must prove that limitation was justified.

By framing the enquiry this way, the court moved beyond a technical statutory check to a substantive Constitutional analysis. The focus was no only on whether an arrest power existed, but whether the state discharged its duty to justify the infringement of a fundamental right at every stage.

JUDGEMENT AND RATIO DECINDI

The Decision:

The court upheld the appeal with costs. It set aside the order of the court a quo and substituted it with an order finding the defendant liable to the plaintiff for damages arising from his unlawful arrest on 27 January and his unlawful detention until 30 January 2022.

The court ordered that the defendant shall pay the plaintiff the sum of R200 000 in damages prescribed legal rate from the date of judgement to the date of payment. The  defendant was also ordered to pay the plaintiff’s costs of suit in the court a quo, and the respondent was ordered to pay the appellant’s cost of appeal.

RATIO DECIDENDI:

For an arrest and detention without a warrant in terms of section 40 of the Criminal Procedure Act to be lawful, the state must satisfy a two-fold requirement. it must correctly charecterise the factual events giving rise to the arrest and show that the jurisdictional facts required by section 40(1)(a) or(f) objectively existed. Second, the state bear the onus of proving that each stage of the deprivation of a person’s liberty is lawful. The lawfulness of the initial arrest does not automatically justify continued detention.

This reaffirms the principle in Duncan v minister of law and order 1986 (2) SA 805 (A) [6]that the jurisdictional facts for a warrantless arrest must exist objectively, and extends them to require separate justification for ongoing detention in light of section 12 of the Constitution. The court reinforced that “Those decision do not create new legal principles.” Rather, they encourage the constitutional jurisprudence.[para 99].[7]

CRITICAL ANALYSIS

SIGNIFICANCE OF THE DECISION:

The judgement is a strong reaffirmation of the constitutional right to personal liberty. The court  was correct to reject a narrow, technical approach to section 40 of the Criminal Procedural Act and instead require a two-stage enquiry into both arrest and detention. The court’s interpretation f section 40 is constitutional sound.

The power to arrest without a warrant is an exception to the general rule and directly infringes section 12 of the Constitution. By insisting that the state must first correctly

Charecterise the events giving rise to the arrest, the court prevents police from relying on vague or after-the-fact justification.

The reliance on Duncan v minister was appropriate, it ensures that the  discretion to arrest is not abused. In my view, this strict interpretation is necessary in South Africa given the history of police overreach.

IMPLICATION AND IMPACT:

By placing the burden on  the state to prove that each stage of the deprivation of liberty was lawful, the judgement gives real effect to the right to freedom. The period from 27 January 2022 to 31 January 2022 could not be justified simply by pointing to section 40. This forces the police and prosecutors to take detention decisions seriously and to review them continuously, not just at the point of arrest.

The award of R200 000 in damages is significant. While no amount of money can compensate for the loss of liberty, the award signals that unlawful conduct by state has consequences. It also serves a deterrent purpose. If the state knows it will be held financially liable for unlawful arrest and detentions, is more likely to train officers properly and to ensure compliance with the law. However, one could question whether R 200 000 is sufficient given the 5-day detention and the trauma involved. Courts will have to develop consistent guidelines for damages in these cases to avoid arbitrary awards.

A POTENTIAL WEAKNESS:

is that the judgement does not give much guidance on  what “correctly characterised” means in practice. Future costs will need to clarify how much detail an arresting officer must provide at the time of arrest to satisfy this test. Without this, section 40(1)(f) in particular could still be misused.

CONCLUSION

In conclusion, this case is an important reminder that the right to freedom and security of the person under section 12 of the Constitution cannot be limited lightly. The court correctly held that the state must justify both the arrest and the subsequent detention as separate stages, and that it bears the burden of proving that each stage was lawful. This judgement is significant because, it clarifies the scope of section 40 of the CPA. It distinguished between arrest and detention, by holding the state liable for both the unlawful arrest and the subsequent unlawful detention. The award of R 200 000 in damages further, emphasizes that unlawful conduct by the state carries real consequences.

Ultimately, the case strengthens Constitutional accountability and sends a clear message: lawfulness must be proven at every step. It protects individual liberty while still allowing law enforcement to function within the limits of the law.[8]

REFERENCE(S):

CASES

Duncan v Minister of Law and Order 1986 (2) SA 805 (A)

Likanga v Minister of Police (A2025\171395)[2026]ZAGP Johannesburg High Court 824 (3 judge bench) decided 21 July 2026

Zeeland v Minister of Justice and Constitutional Development and Another([2008]ZACC 3)

LEGISLATION

Constitution of the Republic of South Africa,1996,s12

Criminal Procedure Act 51 of 1977,s40(1)(a) and(f)

Criminal Procedure Act 51 of 1977

OTHER SOURCES

https:\\www.safli.org

[1] Criminal Procedure Act 51 of 1977

[2] Zeeland v minister of Justice and Constitutional Development and Another([2008]ZACC 3)

[3] Section 12 of the Constitution

[4] Section 40 of the Criminal Procedure Act

[5] Duncan v Minister of Law and order 1986 (2) SA 805 (A)

[6] Duncan v Minister of Law and Order 1986 (2) SA 805 (A)

[7] Likanga v Minister of police (A 2025\171395)[2026]

[8] Likanga v Minister of police (A 2025\171395)[2026]