The Western Cape high court has issued a blistering judgment, finding that traffic officials unlawfully arrested and detained a prominent Cape attorney for speeding.

Lawyer Hymie Zilwa took the matter to court, citing the transport and public works MEC and the minister of police as defendants, claiming he was wrongfully arrested, detained for about six hours and maliciously prosecuted after he was caught speeding on March 28 2019.

The court heard that Zilwa was caught travelling at 188kph in a 120kph zone somewhere between Dwyka and Leeu Gamka in the Central Karoo by a traffic official using a hand-held device.

Zilwa was pulled over in his white Mercedes-Benz by provincial inspector Denzel John-Lee Gertse, a traffic officer for the department of mobility, who showed him the camera pictures and informed him he was being arrested for exceeding the speed limit.

Zilwa consistently maintained he wasn’t driving at the time the alert was triggered. He told Gertse he had just taken possession of the vehicle and offered to call the driver to the police station.

He was never shown a warrant. He was never advised properly of his rights. He should never have been put in that cell in the first place.

—  Pearl Andrews, acting judge

Gertse was not deterred and ordered Zilwa to go to the Laingsburg police station. On his arrival at about 6pm, Zilwa was processed, handcuffed and eventually locked in a cell where he was held until near midnight.

“He was never shown a warrant. He was never advised properly of his rights. He should never have been put in that cell in the first place,” said acting judge Pearl Andrews.

Chief among her findings was that speeding — even at 68kph over the limit — is not a schedule 1 offence under the Criminal Procedure Act, which sets out the narrow circumstances in which a police officer can arrest a person without a warrant.

“An arrest is a drastic intrusion on personal liberty,” Andrews said, affirming that the officer had no lawful authority to detain Zilwa, refusing arguments that the police had acted lawfully and were “just following procedure”.

Zilwa didn’t stop at unlawful arrest and detention and additionally sued for malicious prosecution, asserting that the state wrongly “set the law in motion” against him.

But in a separate finding, the court said he failed to prove malice or improper purpose by the traffic or police officers involved. Evidence that there was some basis for the speeding allegation had been produced, the court held.

Andrews ordered the state pay Zilwa compensation for his unlawful arrest and detention and all his legal costs. She postponed the amount of his damages claim to a later date.