A Durban man who claimed unlawful arrest, detention and assault while in police custody has lost his appeal in the KwaZulu-Natal High Court because he sued the wrong party.
The arrest that started it all
According to court records, Gabriel Zilungisele Hlongwane was apprehended outside the Greyville FNB branch in Durban on 29 April 2016 by Jacob Machaka, a security officer from Black Dolphin Investigations, who recognised Hlongwane and associates as a card-swapping syndicate already on the bank’s watch lists.
Saps arrived after the arrest had already been carried out.
The court heard that Hlongwane was handed over to police, taken to Durban Central Police Station, and held over a long weekend until his first court appearance on 4 May 2016, after which charges were withdrawn.
He subsequently sued the Minister of Police for unlawful arrest, detention, assault, and contumelia, specifically that officers had instructed him to twerk, described in the judgment as “a sexually suggestive dance generally while squatting.”
Suing the wrong defendant
The case collapsed on a foundational legal error.
Hlongwane sued only the Minister of Police despite the fact that Black Dolphin – a private company – had physically arrested him. His own testimony confirmed this.
When asked under cross-examination whether he had been handcuffed by Black Dolphin investigators, he responded: “Okay.”
The Constitutional Court in Matjhabeng Local Municipality v Eskom Holdings had firmly established that “no court can make findings adverse to any person’s interests, without that person first being a party to the proceedings before it.”
The court in Khumalo v Wilkins was equally clear that it “will not deal with those issues without such a joinder being effected, and no question of discretion nor of convenience arises.”
Hlongwane’s legal team took no corrective steps even after the respondent filed an amended plea explicitly naming Black Dolphin as the arresting party.
No amendment was sought, and apportionment of damages was never pleaded.
Last-minute abandonment
At the appeal hearing, counsel Buthelezi informed the court for the first time that the unlawful arrest claim was being abandoned, after judges had already read the full record and all thirteen cited cases.
The court was pointed, stating that “the manner and lateness of the abandonment reflected a casual flippancy demonstrating a lack of respect for this Court,” adding that counsel are “first and foremost officers of the court and are expected to conduct themselves accordingly.”
With the arrest claim dropped, the detention question remained.
The court heard that the arguments that police lacked reasonable grounds and should have obtained bank surveillance footage before detaining Hlongwane were rejected.
The arrest occurred late on a Friday before a long weekend, and no evidence suggested footage could have been retrieved after hours.
Hlongwane carried three prior theft convictions.
The court found that section 60(11)(b) of the Criminal Procedure Act justified his continued detention.
He confirmed under cross-examination that his constitutional rights had been explained and acknowledged in writing, including his right to apply for bail.
Assault story that kept changing
The court was told that every officer who had contact with Hlongwane denied the assault.
He described his attacker as an Indian officer, the respondent called Sergeant Shaylin Naidoo, the only Indian officer on duty that day.
Cross-examination then suggested it was a different Indian officer.
A further allegation that a Sergeant Sithole had also assaulted him emerged mid-trial, never having been raised with any other witness.
The judges called it “a clear and unequivocal demonstration of a recent fabrication.”
A medico-legal certificate recorded wrist bruising and jaw tenderness.
The court found the wrist injuries were “entirely consistent with him having been handcuffed by Mr Machaka from Black Dolphin” and not evidence of a police assault.
The appeal was dismissed with costs.
