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[2022] ZAGPJHC 99
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Nhlapo v Minister of Police (26738/2020) [2022] ZAGPJHC 99 (23 February 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER:
26738/2020
Before:
Judge Cowen
REPORTABLE:
no
OF
INTEREST TO OTHER JUDGES:
no
REVISED
In
the matter between:
BOCCACCIO
BHEKUMUZI NHLAPO
Plaintiff
and
THE
MINISTER OF POLICE
Defendant
JUDGMENT
[1]
This is an action for damages arising from an unlawful arrest and
detention and an
unlawful search of a home and seizure of a vehicle,
which took place in November 2019. The plaintiff is Mr Boccaccio
Bhekumuzi
Nhlapo. The defendant is the Minister of Police.
[2]
The plaintiff instituted these proceedings in September 2020. In the
particulars of
claim the plaintiff particularised the events relating
to the claim in some detail as set out below. The defendant delivered
a
plea dated 26 October 2020, containing a bald denial of the events
as pleaded. The matter came before me on the civil trial roll
on 1
February 2022. Mr Naidoo appeared for the plaintiff and Ms Kakaza
appeared for the defendant. Shortly before the matter was
allocated
to me, the parties informed the Court that the defendant had conceded
the merits of the claim, and the only issue to
be determined was the
quantum. The plaintiff seeks between R250 000.00 and R300 000.00
in damages and the defendant contends
that an award of approximately
R80 000.00 is appropriate. The plaintiff was the only witness
who testified about the events
and their impact and his testimony was
uncontroverted.
[3]
The events unfolded at about 22h30 on 13 November 2019, when the
plaintiff was at
home watching television. He heard his dogs barking
outside. He looked outside and saw police officers trying to get
inside his
home. There were about seven of them. The police officers
asked the plaintiff if they could come inside and they then did. They

asked the plaintiff if he was Thabiso and the plaintiff explained
that he was not and showed the police his identity document,
his
drivers’ licence, his proof of address (through a municipal
account) and a service certificate from work. The police
took
photographs of the documents. They proceeded to search the house.
They then asked if there was a car, to which the plaintiff
responded
that there was – he had a 2006 Citi Golf – and the police
then indicated that the plaintiff should unlock
it. He opened the
bonnet for them. The police then conveyed that the chassis number had
been tampered with and that they were going
to impound the vehicle.
The plaintiff indicated that he did not want to disturb them doing
their duties but disputed any knowledge
of tampering. The police
officers indicated that the plaintiff must also come to the station
notwithstanding his protest. As they
were leaving, an officer said
that if the plaintiff paid them R10 000 they would leave him and
the car alone. The plaintiff
refused. The police officers then put
him in the police car and another drove his vehicle to the Kagiso
station, where he was read
his rights and signed a form. He was then
placed in a cell.
[4]
The following day, the plaintiff was charged and he was told he would
appear in court
the following day. The investigating officer, Mr
Ditabane thereafter explained that the vehicle would be taken to the
pound to
be checked. He asked the plaintiff about the vehicle and the
plaintiff explained that he had purchased it from a family member and

had had it for about a year. He was kept in the holding cells over
two days. He did not appear in court the following day. Rather
he was
released and the investigating officer informed him that he could go
home and that there was nothing wrong with the car.
He then went home
but without his car. He tried to follow up with the investigating
officer about the car and its return. He testified
that during a
conversation in 2020, the investigating officer informed him that he
could not receive the car back because he had
instituted a case
against the police and the case was not yet finalised.
[5]
The plaintiff is 41 years old
and currently employed as a shunter at Kuruman Mine. He was

unemployed at the time of the incident. Before that time, he had been
employed at Transnet but had been retrenched.
[6]
The plaintiff testified about the conditions of the police holding
cells. He explained
that there were 14 or 15 people in the cells. The
occupants had to sleep on the floor with dirty blankets. There was no
door separating
the cell from the toilet and inadequate ventilation.
There were only small windows. The shower wasn’t working and
there was
only cold water in a small basin. He couldn’t shower
while there and only showered when he got home. He was given tea and

some bread in the morning and rice and chicken in the evening but
could not eat because the cell stank from the toilet.
[7]
The plaintiff testified that he felt bad about having been arrested
for no apparent
reason. He highlighted the loss of trust he had in
the police in circumstances where the very people who are meant to
protect him,
took away his freedom while asking for a bribe. He did
not understand why this happened, when he had explained to the police
and
proved to them that he was not Thabiso, who the police were
ostensibly looking for. Furthermore, he confirmed that the police did

not have any warrant.
[8]
Under cross examination, Ms Kakaza only put one line of questions to
the plaintiff:
whether the award that he sought was not
disproportionately high and whether R80 000.00 would not be
appropriate. The plaintiff
responded that he did not think R80 000.00
was appropriate, given the abuse and trauma that he had suffered.
[9]
The Constitutional Court has held that in cases of this sort,
“damages are awarded
to deter and prevent future infringements
of fundamental rights by organs of state. They are a gesture of
goodwill to the aggrieved
and they dot rectify the wrong that took
place.”
[1]
When assessing
damages for unlawful arrest and detention, this Court must bear in
mind the primary purpose of an award, being to
offer much needed
solatium for injured feelings: it is not to enrich the party.
[2]
The award must be commensurate with the injury inflicted.
[3]
When considering what is a fair and adequate award of damages,
however, this Court must consider the nature and importance of the

constitutional rights in issue, which in this case include the right
to dignity protected in section 10 of the Constitution, the
right to
freedom and security of the person protected in section 12 of the
Constitution which includes the right not to be deprived
of freedom
arbitrarily or without justice cause and the right to privacy
protected in section 14 and the rights protected in section
35 of the
Constitution. An award should reflect and be commensurate with the
value we attach to these rights as a society.
[4]
[10]
A multiplicity of factors may be relevant to determining an award
depending on the circumstances
of the case: an award cannot be
arrived at with mathematical precision.
[5]
In this case, plaintiff is 41 years old and was unemployed at the
time. He was unlawfully arrested and detained over two days in

unhygienic and inhumane circumstances, his home was unlawfully
searched and his vehicle was unlawfully seized in circumstances
that
amount to harassment. There was not only an infringement of the above
rights and detention in unhygienic and inhumane circumstances:
the
evidence established an improper motive, being the soliciting of a
bribe by the very people the Constitution entrusts to protect
and
secure the inhabitants of South Africa and their property, and to
uphold and enforce the law.
[6]
It also established the ongoing deprivation of property not only
without justification but due to the very exercise of the plaintiff’s

rights in these proceedings.
[11]
In support of the plaintiff’s proposed award of between
R250 000.00 and R300 000,00
Mr Naidoo referred me to previous
cases as a guide. In doing so, he correctly submitted that while the
Court may have regard thereto,
but must have regard to the facts of
this case and not slavishly follow previous cases.
[7]
Reference was made to a series of cases
[8]
in which the court made damages awards for unlawful arrest and
detention ranging between R72 375 (current value) for 4.5
hours
[9]
and R579 0000 for
between 28.5 and 32 hours.
[10]
Ms Kakaza submitted, on the other hand, that if regard is had to the
facts and circumstances of these cases, the higher awards
were made
in circumstances where the plaintiff suffered the indignity of an
unlawful arrest and detention entailing features not
present in these
proceedings such as a level of publicity, humiliation or seriousness
(for example gun shots were fired in one
case). She also pointed out
that the award in Van der Westhuizen had been substantially reduced
on appeal.
[11]
Ms Kakaza
responsibly conceded, however, that the soliciting of a bribe and
retaining the plaintiff’s vehicle without justification
and in
circumstances of these proceedings may be regarded as aggravating
factors, but she contended that they did not warrant the
award
contended for. She submitted further that the Court should be guided
by lower awards made in other cases not referred to
by the plaintiff
which when compared to this case, suggest an award of approximately
R80 000 might fairly be granted on the
facts of this case.
[12]
Neither party was able to refer me to any case in which the arresting
officers had sought to solicit a bribe as occurred here.
I have
considered the cases referred to, and others, including where higher
awards were made in cases such as in Mahlangu.
[13]
[12]
In my view, the facts of this case warrant an award in the region
contended for by the plaintiff
and I have concluded that R275 000
should be awarded. In this case, multiple constitutional rights which
lie at the core of
our bill of rights were violated over the period
in question and through the process of unlawful search, seizure,
arrest and detention.
This occurred in a manner which entailed
sustained harassment and an abuse of power by the persons entrusted
to protect our society,
understandably resulting in a profound loss
of trust of the police and a sense of abuse. That a bribe was
solicited and the plaintiff’s
vehicle retained in view of these
proceedings and without justification are, in my view, seriously
aggravating features. The award
must reflect the collective
condemnation of our society of conduct of this sort which goes beyond
illegality and seriously undermines
the rule of law, corroding the
systems we rely upon to protect us.
[13]
There was no dispute that the award must attract interest as
contemplated by the
Prescribed Rate of Interest Act 55 of 1975
. In
terms of
section 2A(2)(a)
, interest shall run from the date on which
payment was claimed by service of the demand or summons, whichever is
the earlier. In
this case the date of service of the demand is
applicable. Both parties’ representatives confirmed that the
applicable interest
rate is 10%.
[14]
The plaintiff is entitled to his costs. The plaintiff submitted that
costs should be awarded
on a punitive scale in view of the
circumstances of the bribe, withholding the vehicle in view of the
litigation, and the manner
in which the defendant conducted the
litigation, specifically defending it on the merits on a bald denial
and for no good reason
until the very last minute when counsel was
appointed and the merits conceded. In the SARB matter the
Constitutional Court held:
[14]
“
A
punitive costs order is justified where the conduct concerned is
“extraordinary” and worthy of a court’s rebuke”.
I am of the view that such an award is justified in this matter until
the date the defendant conceded the merits.
[15]
Ms Kakaza submitted that costs should only be awarded on a
Magistrates Courts scale in view of
the quantum ultimately sought
(and granted). In the circumstances of this case, I am unable to
agree.
[15]
In the pleadings,
the plaintiff sought an estimate award within the High Court
jurisdiction in circumstances where awards in cases
of this sort are
difficult to quantify. There are multiple important human rights
issues at stake in this case, which also involves
matters of public
interest and grave public concern. Moreover, the issues, at least on
merits, were potentially complex: the defendant
only conceded the
merits shortly before trial. Also material is that this case carried
hallmarks which could well have justified
an award beyond the
jurisdiction of the Magistrates Court: specifically, the attempt to
solicit a bribe, the infringement of multiple
rights and the
retention of the vehicle without justification and due to the
institution of these proceedings.
[16]
The following order is made:
16.1
The defendant shall pay the plaintiff R275 000 in
damages, together with interest at a rate of 10% from the
date of
demand to date of payment;
16.2
The defendant shall pay the plaintiff’s costs on a High Court
scale such costs to be on an attorney
and client scale until the date
the defendant conceded the merits.
___________________
COWEN
J
Appearances:
For
the Plaintiff: Adv L Naidoo
Instructed
by: Logan Naidoo Attorneys
For
the Defendant:
Adv N Kakaza
Instructed
by: State Attorney
Date
of hearing: 1 February 2022
Date
of judgment: 23 February 2022
[1]
Mahlangu
and another v Minister of Police
[2021] ZACC 10
; 2021(7) BCLR 698
(CC); 2021(2) SACR 595 (CC) (
Mahlangu)
at para 50.
[2]
Minister
of Safety and Security v Tyulu
[2009] ZASCA 55
; 2009(5) SA 85 (SCA);
2009(2) SACR 282 (SCA);
[2009] 4 All SA 38
(SCA) (
Tyulu
)
at para 26 cited with approval in Mahlangu, supra n1 at para 51.
[3]
Id.
[4]
Tyulu,
supra n2 at para 26;
Radasi
v Minister of Police [2021] ZAGPJHC 79 (31 May 2021) (
Radasi
)
at paras 27 to 29. Raduvha v Minister of Safety and Security and
another
[2016] ZACC 24
;
2016 (10) BCLR 1326
(CC);
2016 (2) SACR 540
(CC) (
Raduvha
).
[5]
Mahlangu,
supra n1 at paras 52 to 56;
Tyulu,
supra n2 at para 26 and 27. Mathe
v
Minister of Police [2017] ZAGPJHC 133 2017(2) SACR 211 (GJ) (
Mathe
)
at para 19 with reference to Visser & Potgieter
Law
of Damages.
[6]
Section
205(3) of the Constitution.
[7]
Tyulu,
supra n2 at para 26: “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”.
[8]
Eg:
Radasi
supra n3 in which the Court awarded a 20 year old pregnant female
the sum of R300 000 in damages for three days of
detention in
circumstances where the relevant sergeant behaved in a ‘high-handed,
malicious and highly reprehensible way’
that the Court
regarded as warranting the community’s collective condemnation
or denunciation; Oliver v Minister of Safety
and Security and
another 2009(3) SA 434 (W), in which the Court made an award with a
current value of R83 707 to a senior
police officer arrested in
full view of his colleagues and detained for six hours in the
station in which he worked; Nqweniso
v Minister of Safety and
Security [2012] ZAECGHC 84 (18 October 2012) in which the Court made
an award with a current value of
R128 424 for a deprivation of
liberty of approximately 20 hours in a dirty police cell in
unhygienic conditions in circumstances
where the plaintiff suffered
the indignity of being arrested in the presence of her colleagues
for alleged stocktheft; Mahlangu
v Minister of Police 2012 ZAGPJHC
180 in which the Court awarded a current value of R217 127 to a
woman arrested with her
young child and detained for about two days
of unlawful detention in unhygienic and dirty conditions –
shots had been fired;
Bantu v Minister of Police and another [2014]
ZAGPJHC 344 (21 November 2014) in which the court made an award with
a current
value of R232 174 for 48 hours of unlawful arrest and
detention: the arrest was public and the detention in unhygienic
circumstances;
Mathe supra n5 in which this Court awarded the
plaintiff a current value of R132 261 for unlawful arrest and
detention for
a period of 37 hours: the detention was in filthy and
unhygienic circumstances and the plaintiff was humiliated and felt
stigmatised
in her arrest: the police had acted in an abusive and
high-handed manner in respect of a vulnerable person.
[9]
Minister of Safety and Security v Swart
[2012] ZASCA 16
; 2012(2)
SACR 226 (SCA): the SCA considered the case to have serious
aggravating features, see para 24.
[10]
Van der Westhuizen v Minister of Safety and Security [2012] ZAGPJHC
207 (10 October 2012)
[11]
Minister
of Safety And Security and Another v Van Der Westhuizen (A5079/2013)
[2014] ZAGPJHC 427 (15 January 2014).
[12]
Nel
v Minister of Police (CA62/2017) [2018] ZAECGHC 1 (23 January 2018)
at para 36 (approximately 20 hours of detention, unlawful
arrest and
detention of a mother with an infant in a dirty cell (R35 000
awarded – unadjusted);
Madyibi
v Min of Police
2020 (2) SACR 243
(ECM) at para 32 onwards (R40 000
(unadjusted) for unlawful public arrest amounting to harassment
followed by unlawful detention
of one day in a dirty cell); Mtola v
Minister of Police (CA23/16) [2017] ZAECMHC 56 (29 June 2017) at
para 29 (R125 000
– unadjusted - for humiliating unlawful
arrest and unlawful detention for a period of 5 days).
[13]
Supra
n1.
[14]
Public
Protector v South African Reserve Bank
2019
(6) SA 253
(CC) at para 226.
[15]
See
generally Mathe, supra n5 at paras 41 onwards.