THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 414/2022
In the matter between:
DANIEL MALEBADI MOTLADILE APPELLANT
and
MINISTER OF POLICE RESPONDENT
Neutral citation: Motladile v Minister of Police (414/2022) [2023] ZASCA 94 (12
June 2023)
Coram: MBATHA and GORVEN JJA and NHLANGULELA, KATHREE -
SETILOANE and MALI AJJA
Heard: 5 May 2023
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website
and release to SAFLII. The date and time for the hand -down of the judgment is
deemed to be 11h00 on 12 June 2023.
Summary: Damages claim – unlawful arrest and detention – award not
commensurate with damages s uffered – failure of trial court to consider facts and
circumstances of case – mechanical approach adopted by following trend in the North
West Division of the High Court to award damages in the amount of R15000 a day –
principles of determining appropriate award – restated – amount substituted.
___________________________________________________________________
ORDER
On appeal from: North West Division of the High Court, Mahikeng (Mahlangu AJ,
sitting as court of first instance):
1 The appeal is upheld with costs including those of two counsel.
2 The order of the high court is set aside and replaced with an order in the following
terms:
‘(i) The defendant is ordered to pay the plaintiff the amount of R200 000 together
with interest at the prescribed rate of 7% per annum from date of service of
summons to date of payment.
(ii) The defendant is ordered to pay the plaintiff’s costs on the high court scale.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Kathree-Setiloane AJA (Mbatha and Gorven JJA and Nhlangulela and Mali AJJA
concurring)
[1] This appeal concerns the question of whether damages in the amount of
R60 000 awarded by the North West Division of the High Court, Mahikeng, per
Mahlangu AJ (the high court) to the appellant, arising from his unlawful arrest and
detention, are fair and reasonable having regard to the circumstances of the case.
Background
[2] On 23 December 2014, Mr DM Motladile (the appellant) who was, at the time, in
the business of transporting passengers, was requested by a man whom he did not
know to transport him to a farm to purchase cattle, which he did. The man purchased
the cattle, but unbeknown to the appellant the man apparently defrauded the seller of
the cattle. On reporting the incident to the police, the seller approached the appellant
for his contact details, as he considered him to be a potential witness in his criminal
case against the man who defrauded him.
[3] On 24 December 2014, the appellant travelled to Gaborone (Botswana) to attend
to the wedding arrangements of his sister-in-law. The wedding was to take place two
days later, on 26 December 2014. On the same day, Warrant Officer Ngkodi (the
investigating officer), from the Mahikeng Police Station (the police station), visited the
appellant’s home. On being advised by his wife, Mrs Motladile, that the appellant was
in Gaborone, the investigating officer provided her with his telephone number and
asked that th e appellant call him on his return. On his return from Gaborone that
evening, the appellant called the investigating officer and arranged to meet him the
next morning (Christmas Day) at the police station.
[4] On Christmas morning, the appellant travelled to the police station where he
expected to be of assistance in the investigation. But instead, on his arrival at the
police station at 8h30, the investigating officer promptly arrested and detained the
appellant for the offence of theft under false pretenses . The appellant attempted to
explain his version of events to the investigating officer, but it was to no avail. The
investigating officer advised the appellant that he would not be released until he
pointed out the man who allegedly defrauded the complain ant. The appellant was
unable to do this, as he did not know the man.
[5] The appellant managed to inform his wife and brother of his arrest and detention.
They attempted to visit the appellant in the police cells but were not allowed to see
him or communicate with him for the duration of his detention. The appellant’s brother
instructed a lawyer, at his own expense, to apply to court for the appellant’s release
on bail. The bail application could not be brought as the investigating officer did not
permit the appellant to consult with the lawyer.
[6] The appellant spent the following four days (and nights) in detention in the police
cells. On the morning of 29 December 2014, the appellant was taken to the
magistrates’ court, where he was detained in the holding c ells for the rest of the day.
The appellant did not appear in court as the prosecutor refused to enroll the case. He,
however, remained in detention in the holding cells until 17h45 that evening, when he
was transported back to the police station. The appellant was released from detention
at around 18h00 that evening without receiving an explanation. As a result of his
detention, the appellant had remained in custody for five days and four nights.
[7] According to the appellant’s unchallenged testimony, during the period of his
detention he shared a filthy cell with five other inmates, who assaulted him and stole
his food. He did not report this to the police as he feared further assaults. He was
severely traumatised by his arrest and detention in the police cells.
[8] As a consequence of his incarceration, the appellant and his wife were unable to
attend his sister-in-law’s wedding in Gaborone. As elders, the appellant and his wife
had a particular standing at the wedding. His failure to attend the wedding due to his
arrest and detention was a source of great embarrassment to him and his family. It
was also traumatic for him not to spend Christmas with his wife and children. He broke
down and cried while in detention and was unable to eat or sleep. The appellant’s wife
and children were also traumatised by the appellant’s arrest and subsequent
detention.
[9] The appellant was a traditional healer who enjoyed the respect of his community.
Once his arrest and detention became known to his community, he lost their respec t.
The appellant felt ‘undermined and degraded’ by his arrest and detention, and this has
affected him psychologically.
[10] As a result of his unlawful arrest and detention, the appellant instituted an action
against the Minister of Police (the respondent), in June 2016, for damages in the
amount of R 250 000. On 26 November 2020, the high court, after making an order in
terms of rule 33(4) of the Uniform Rules of Court separating the determination of the
merits from the quantum, made an order that the respondent is liable for the appellant’s
proven or agreed damages arising from his unlawful arrest and detention. It postponed
the determination of the quantum of damages to 5 May 2021.
[11] The appellant and his wife testified at the trial in support of his case on the issue
of quantum. The respondent elected to lead no evidence at the trial. The high court
made an order awarding the appellant damages in the amount of R60 000 plus costs
on the magistrates’ court scale. It reasoned as follows in making this award:
‘In this present matter and having due regard to the particular facts of this matter, an award of
a large amount of compensation is not called for and not warranted. The [appellant] suffered
unwarranted inconvenience, injury to his feelings and personal hum iliation with no future
consequence.’
The appellant appeals against the judgment and order of the high court (on quantum)
with the leave of this Court.
The appeal
[12] The amount of damages to be awarded to a plaintiff in a deprivation of liberty
case, as we h ave here, is in the discretion of the trial court. That discretion must
naturally be exercised judicially. The approach of an appellate court to the question of
whether it can substitute a trial court’s award of damages is aptly summarised by the
Constitutional Court in Dikoko v Mokhatla as follows:
‘. . . [S]hould an appellate Court find that the trial court had misdirected itself with regard to
material facts or in its approach to the assessment, or having considered all the facts and
circumstances of the case, the trial court’s assessment of damages is markedly d ifferent to
that of the appellate court, it not only has the discretion but is obliged to substitute its own
assessment for that of the trial court. In its determination, the Court considers whether the
amount of damages which the trial Court had awarded w as so palpably inadequate as to be
out of proportion to the injury inflicted.’1
[13] At the outset of the appeal, and in the heads of argument, the respondent
conceded that the damages the high court awarded to the appellant are so
disproportionately low, that this Court can infer that the high court did not exercise its
discretion properl y. The high court found that having regard to the facts and
circumstances of the case, an adequate award would be an amount of R15 000 per
day, which amounts to R60 000 for the four days that the appellant spent in detention.
In adopting the amount of R15 000 per day, the high court followed a practice that has
developed in the North West Division of the High Court, Mahikeng (North West
Division) of applying a ‘one size fits all’ approach of R15 000 per day to damages
claims for unlawful arrest and detentio n. This practice is conveniently described in
Mocumi v Minister of Police and Another. 2 That matter concerned a 28 -year-old
plaintiff, who was arrested and detained for three days under appalling conditions. The
court awarded him damages in the amount of R45 000 calculated at R15 000 per day.
1 Dikoko v Mokhatla 2006 (6) SA 235 (CC); 2007 (1) BCLR 1 (CC) para 57.
2 Mocumi v Minister of Police and Another Case number CIV APP9/2021 (3 December 2021).
The court observed as follows in relation to the practice of the North West Division ‘to
strive for similarity’ in awarding damages for unlawful arrest and detention:
‘In Ngwenya v Minister of Police (924/2016) [2019] 3 ZANWHC 3 (7 February 2019) this Court
awarded R15 000.00 per day for unlawful arrest and detention. The same amount was
awarded in the matter of Gulane v Minister of Police, CIV APP MG 21/2019, in an appeal
which emanated from the Magistrate Court, Potchefstroom and decided by Petersen J et Gura
J. Petersen J et Gura J did also in the matter of Matshe v Minister of Police, case number CIV
APP RC 10/2020, likewise, awarded an amount of R15 000.00 per day for each of the two
days that the appellant was detained.’3
…
Much as there are also different amounts awarded by this Court as compensation or solatium,
there is of late an attempt to strive for similarity or conformity. Each case must however be
decided on its own facts, merits, and circumstances. The examples quoted above in the case
of Ngwenya v Minister of Police, Gulane v Minister of Police and Matshe v Minister of Police
underscore this. R15 000.00 per day, is a reasonable amount to be awarded.’4
[14] This practice was also followed in Tobase v Minister of Police and Another, 5
which concerned a 30 -year-old man who was unlawfully arrested at his place of
employment and detained for three days. The North West Division, sitting as a court
of appeal, awarded him damages calculated at R15 000 per d ay, amounting to
R45 000. In Nnabuihe v Minister of Police,6 also a decision of the North West Division,
the plaintiff was arrested and detained from Friday 12 April 2019 at about 12h40 and
released on Monday, 15 April 2019, without having appeared in court. The plaintiff was
assaulted by the police and the inmates. He was squeezed into a cell with one toilet.
The inmates shared a single sponge mattress. The plaintiff never took a bath for the
duration of his incarceration, nor did he eat. The court awarded an amount of R50 000
which appears to be commensurate with the practice of the North West Division.
[15] What is plain from the high court’s judgment, in the present matter, is that it
followed the trend in the North West Division to award an amount of R15 0 00 a day
for damages suffered as a result of an unlawful arrest and detention. The high court
cited comparable case law of other divisions of the high court, where the compensation
3 Mocumi fn 2 above para 15.
4 Ibid para 20.
5 Tobase v Minister of Police Case number CIV APP MG 10/2021 (3 December 2021).
6 Nnabuihe v Minister of Police Case number 2273/2019 NWHC (9 March 2022).
awarded was commensurate with the harm suffered by the respective plaintiffs due to
their unlawful arrest and detention. This notwithstanding, in quantifying the damages
to award, the high court relied exclusively on the approach adopted in Minister of
Police v Joubert (Joubert),7 where the North West Division awarded R15 000 for each
of the seven days the plaintiff was detained. In Joubert the plaintiff was 48 years old
when he was arrested. On a Friday morning, while the plaintiff was busy erecting a
shack in the company of two friends, two police officers arrested him and took him to
the police station at approximately 10h00. He was detained in a cell together with 14
other inmates. The inmates confiscated his food and severely assaulted him that
evening. He did not report the assault to the police. He had to share a blanket wit h a
fellow inmate and was not given toiletries. He was detained until his release by the
court on Monday, 31 August 2015, at approximately 11h00.
[16] More recently, in Spannenberg and Another v Minister of Police (Spannenberg)8
Hendricks DJP sought to disavow this trend in the North West Division when he said
this:
‘There is a misnomer that the High Court in the Ngwenya judgment set as a benchmark an
amount of 15 000.00 per day as the norm for unlawful arrest and detention. This is incorrect
and misplaced. Each case must be decided in its own peculiar facts and circumstances
(merits). This cannot be emphasized enough. Th ere is no benchmarking nor is there a one
size (or amount) fits all practice that must be followed. This will most definitely erode the
judicial discretion of presiding officers.’
Notably, the court in Spannenberg awarded the two plaintiffs damages in the amount
of R18 000 each for being unlawfully detained for the duration of day. Despite deviating
from the practice of awarding R15 000 a day, the court in Spannenberg had no regard
to awards in comparable cases.
[17] The assessment of the amount of damages to award a plaintiff who was
unlawfully arrested and detained, is not a mechanical exercise that has regard only to
the number of days that a plaintiff had spent in detention. Significantly, the duration of
the detention is not the only factor that a court m ust consider in determining what
would be fair and reasonable compensation to award. Other factors that a court must
7 Joubert v Minister of Police and Others Case number 659/2017 NWHC (15 April 2021).
8 Spannenberg v Minister of Police Case number 2993/2019 (24 February 2022) para 20.
take into account would include (a) the circumstances under which the arrest and
detention occurred; (b) the presence or absence of imprope r motive or malice on the
part of the defendant; (c) the conduct of the defendant; (d) the nature of the
deprivation; (e) the status and standing of the plaintiff; (f) the presence or absence of
an apology or satisfactory explanation of the events by the d efendant; (g) awards in
comparable cases; (h) publicity given to the arrest; (i) the simultaneous invasion of
other personality and constitutional rights; and (j) the contributory action or inaction of
the plaintiff.9
[18] It is as well to remember what this Court said in Tyulu v Minister of Police:10
‘In the assessment of damages for unlawful arrest and detention, it is important to bear in mind
that the primary purpose is not to enrich the aggrieved party but to offer him or her some much-
needed solatium for his or her injured feelings. It is therefore crucial that serious attempts be
made to ensure that the damages awarded are commensurate with the injury inflicted.
However our courts should be astute to ensure that the awards they make for such infractions
reflect the importance of the right to personal liberty and the seriousness with which any
arbitrary deprivation of personal liberty is viewed in our law. I readily concede that it is
impossible to determine an award of damages for this kind of injuria wit h any kind of
mathematical accuracy. Although it is always helpful to have regard to awards made in
previous cases to serve as a guide, such an approach if slavishly followed can prove to be
treacherous. The correct approach is to have regard to all the facts of the particular case and
to determine the quantum of damages on such facts. . ..’
[19] The high court’s award of damages in respect of the unlawful arrest and detention
of the appellant was not commensurate with the injuries suffered by him. This is largely
because the high court had scant regard to the facts and circumstances of the case
which were germane to its assessment of damages. Crucially, the high court gave no
consideration to the circumstances under which the appellant was arrested, and that
he had volunteered his name and contact details to the complainant, ostensibly to be
called upon as a witness. The high court also failed to consider that on his return from
Gaborone, the appellant readily contacted the investigating officer. And that he met
9 JM Potgieter et al, Visser & Potgieter Law of Damages 3 ed (2012) at 545-548; HB Klopper
Damages (2017) at 255-259.
10 Minister of Safety and Security v Tyulu [2009] ZASCA 55; 2009 (2) SACR 282 (SCA); [2009] 4 All
SA 38 (SCA); 2009 (5) SA 85 (SCA) para 26.
with him on Christmas day, to assist him in his investigation. Little did the appellant
know that he would be victim to an unlawful arrest and detention that would separate
him from his family over the Christmas period.
[20] The way the investigating officer dealt with the appellant was suggestive of an
improper motive and malice which justified a higher amount of damages. The
uncontested evidence of the appellant, on this aspect, was that the investigating officer
had threatened that should he not disclose th e name of the perceived suspect, he
would be arrested – not as a suspect – but simply as punishment. The high court,
however, simply ignored this evidence in the assessment of the damages suffered by
the appellant. It also ignored the fact that the appella nt was deprived of his
fundamental right to be assisted by a legal representative for, inter alia, the purposes
of bringing an application for his release on bail. And that he was denied access to
members of his family who were not allowed to see him or communicate with him while
in custody.
[21] Peculiarly, the high court remarked that ‘it cannot be said that the [appellant’s]
experience was harrowing’. This remark is difficult to fathom given the appellant’s
uncontested evidence on the condition of the cell and the harrowing reception from
the other inmates in the cell. It, therefore, comes as no surprise that the high court had
no regard to the humiliation and degradation that the appellant suffered at the hands
of his fellow inmates who assaulted him; stole his food; and would have assaulted him
again if he reported them to the police. As the appellant’s evidence on this aspect was
uncontested, there was simply no basis for the high court’s finding that his evidence
relating to his detention ‘was not convincing’, and that ‘[n]o evidence was proff ered
that the situation and circumstances were such that it rendered the cell unfit for
occupation’.
[22] The high court held that ‘having due regard to the particular facts of this matter,
an award of a large amount of compensation is not called for and not warranted’, as
the appellant ‘suffered unwarranted inconvenience, injury to his feelings and personal
humiliation with no future consequence’. In holding as such, the high court disregarded
the unchallenged evidence of both the appellant and his wife in respect of the trauma,
mental anguish and distress suffered by him in custody and thereafter. The high court,
moreover, failed to appreciate that the unlawful deprivation of the appellant’s liberty is,
in itself, a serious injury which constituted an impermissible infringement of his
constitutional rights to freedom and security of the person, and to human dignity. To
regard the deprivation of liberty as ‘an unwarranted inconvenience’ as the high court
did, is to undermine the importance and protection that the right enjoys in our
constitutional democracy.
[23] Moreover, the high court disregarded the appellant’s standing and status in t he
community as a traditional healer, and the extent to which his unlawful arrest and
detention caused mistrust in the community and diminished his good reputation and
honour. The high court also failed to take into consideration the implications of the
appellant not attending the family wedding on 26 December 2014, and the shame and
embarrassment that he and his wife had to endure consequent upon his unlawful
arrest and detention.
[24] The high court furthermore attached no weight to the fact that the appella nt had
committed no crime, yet he received neither an apology nor a satisfactory explanation
for his arrest and detention from the respondent following his release from unlawful
custody. The high court, accordingly, misdirected itself by not taking all the relevant
facts and circumstances into account, in its assessment of the damages suffered by
the appellant pursuant to his unlawful arrest and detention.
[25] On consideration of the facts and circumstances of this case, as well as recent
awards made by our courts in comparable cases and the steady decline in the value
of money, I consider an award of R200 000 to be fair and reasonable compensation
for the damages arising from the appellant’s unlawful arrest and detention.
Costs
[26] The high court ordered the re spondent to pay the appellant’s costs on the
magistrates’ court scale on the basis that the matter was not of such complexity that it
warranted the attention of the high court; that the amount claimed and awarded fell
within the monetary jurisdiction of th e magistrates’ court; and that no special
circumstances were advanced to warrant the institution of the proceedings in the high
court. What the high court failed to grasp in arriving at this conclusion, is the
importance that our courts accord to the depri vation of a person’s liberty when
determining the scale on which to award costs. In De Klerk v Minister of Police,11 which
also concerned an unlawful arrest and detention, this Court said – regarding costs –
that although the total quantum awarded [R30 000] is far below the jurisdiction of the
high court, the appellant was justified in approaching the high court because the matter
concerned the unlawful deprivation of his liberty. For this reason, this Court is entitled
to interfere with the high court’s costs order.
[27] The appellant seeks the costs of two counsel in the appeal. I consider this to be
justified because, as submitted by counsel for the appellant at the hearing, an
enormous amount of research was necessary to unmask the ‘trend’ or ‘practice’ of the
mechanical approach, that has been followed in the North West Division to damages’
awards in unlawful arrest and detention cases. We are grateful to counsel for both
parties for the constructive assistance given to us during the hearing.
[28] In the result, the following order is made:
1 The appeal is upheld with costs including those of two counsel.
2 The order of the high court is set aside and replaced with an order in the following
terms:
‘(i) The defendant is ordered to pay the plaintiff the amount of R200 000 together
with interest at the prescribed rate of 7% per annum from date of service of
summons to date of payment.
(ii) The defendant is ordered to pay the plaintiff’s costs on the high court scale.’
________________________
F KATHREE-SETILOANE
ACTING JUDGE OF APPEAL
11 De Klerk v Minister of Police [2018] ZASCA 45; [2018] 2 All SA 597 (SCA); 2018 (2) SACR 28 (SCA)
paras 18 & 55.
Appearances
For appellant: A B Rossouw SC and J H P Hattingh
Instructed by: WJ Coetzer Attorneys, Mahikeng
Du Plooy Attorneys, Bloemfontein
For respondent: M E Mmolawa
The State Attorney, Mafikeng
The State Attorney, Bloemfontein.