1
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE NO:4497/2017
(1) REPORTABLE: ¥€S-/ NO
(2) OF INT~ST TO THE JUDGES: ¥ES-/ NO
(3) REVISE .
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Da te .. 2 .1?.?:-.1-J:/.~;j('+'
In the matter between:
TEBOGO LUDWICK MALEKA PLAINTIFF
And
MINISTER OF POLICE 1sr DEFENDANT
POLICE OFFICER MANABALALA 2ND DEFENDANT
JUDGMENT
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MONENE AJ
INTRODUCTION
[1] The plaintiff, a 33-year-old male educator, instituted action proceedings against
the defendants for damages arising from his arrest and detention by the defendants
on 28 October 2016 and his subsequent release from custody on 7 November 2016.
I note that in the plaintiff's heads of argument the date of release from custody is
indicated as 9 November 2016, but I shall go with the pleaded date, which is 7
November 2016.
[2] In broad strokes the plaintiff canvassed his claims in his particulars of claims as,
first, unlawful arrest and detention, second, unlawful assault on two occasions and
thirdly as "the laying of false charges" against him.
[3] Initially the defendants, the police minister and a police officer in the minister's
employ, filed a joint standard plea which the police minister traditionally and routinely
hoists in this kind of matters, to wit, denial of the unlawfulness of the arrest and the
consequent detention and taking refuge under section 40(1 )(b) of the Criminal
Procedure Act 51 of 1977. However, all that fizzled out on 22 April 2024 when , before
Naude-Odendaal J, the merits were settled 100 percent in favour of the plaintiff. The
matter was later to serve before me on 19 June 2024 for determination of quantum.
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[4] However when the matter was called, counsel for the defendants denied that the
merits had been settled and indicated that he was briefed to proceed with trial on both
liability and quantum. Counsel for the plaintiff argued that the defendants were aware
of the order dispensing with liability as it was not only made in their presence but was
served on them too. However , a copy of the Naude-Odendaal order was not on file
nor did either of the parties have a copy thereof. I then stood the matter down until 21
June 2024 to determine whether liability was indeed no longer an issue or not
stressing that I would have been prepared to proceed with quantum absent the court
order on merits, if both parties were ad idem on the existence of that order.
[5] When the matter served before me on the next date it became clear on production
of the liability(merits) order that the defendants were all the time aware of the order
or, at the very least, ought to have been aware of it. I shall return to this aspect when
dealing with costs infra.
[6] Counsel for the plaintiff conceded that the way the laying of false charges claim
was worded was not a ma licious prosecution claim. It is a claim scantily clad and
completely incapable of being proven by anything placed before me let alone without
oral evidence. Furthermore, its essence as worded in the particulars of claim, appears
to me repetitive of the unlawful arrest and detention basis. It being so that this claim
was not withdrawn and was argued in written submissions before me and regard being
had to the fact that no evidence was led to quantify this curiosity of a claim, I have no
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option but to offhand dismiss the quantum claim on it, that is, assuming that the merits
settlement at 100 percent included it as part of the equation.
[7] What then remains to be determined is what general damages , if any, attach to the
plaintiff's unlawful arrest and detention and assault claims on which merits have
already been awarded to the plaintiff on a 100 percent basis.
GENERAL DAMAGES
Unlawful arrest and detention
[8] Regarding general damages as attaching to the unlawful arrest and detention
claim, the plaintiff's counsel referred me to the following authorities to look at as
guidelines in my determination of a damages award:
8.1 Mkwati v Minister of Police (ECM) unreported case no 2902/2013 decided on
23 January 2018 an arrest of 5 days attracted an award of R560 000.00.
[8.2] Mphindwa v Minister of Police (952/2016) [2019] ZAECMHC 9(26 February
2019) where arrest and detention of 5 days resulted in an award of R480 000.00.
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[8.3] On the strength of the above authorities, where unlike in casu, evidence was led
to prove quantum, the plaintiff argued for general damages in the amount of
R1 120 000.00.
[9] Counse l for the defendants relied on Rahim and 14 Others v Minister of Home
Affairs 2015(4) SA 433(SCA)("Rahim'J where paltry amounts ranging from
R3 000.00 to R25 000.00 for detention periods ranging from 4 days to 35 days. Owing
to that he argued for compensation award of no more than R25 000.00.
[1 O] As regards the assault plaintiff referred me to the following authorities:
(10.1] Mge/e v Minister of Police and Others (1257/2011) [2015] ZAECMHC 70
(Mgele) where a plaintiff who was assaulted from the whole night and left with
sequelae of erectile dysfunction was in 2015 awarded R150 000.00 as general
damages .
[10.2] Nyamanda v Minister of Police (2400/2009) [2022] ZAECGHC 49(6
September 2022) ("Nyamanda'J where a fists, booted feet and pepper spray
dousing assault by police on the plaintiff attracted a general damages award of
R100 000.00.
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[11] I was not favoured with any authority on comparative awards for assault by
counsel for the defendants.
[12] The principles attendant to the determination of general damages in matters of
unlawful arrest and detention and assault by police have over the years, in my view,
crystallized as follows:
[12.1] The primary need to seriously and determinately uphold the constitutional rights
to personal liberty and physical integrity.
[12.2] The secondary need to avoid perceptions of an extravagant distribution of
wea lth from a wrongly perceived horn of plenty, wh ich is the public purse.
[13] In my view these principles are best captured by the Supreme Court of Appeal in
Minister of Safety and Security v Tyulu 2009(5) SA 85(SCA) ("Tyulu")at para 26
where the following was stated:
"When assessing 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 so/atium for his or her injured feelings. It is therefore crucial
that serious attempts are made to ensure that the damages awarded are
commensurate with the injury inflicted. However, our courts should be astute to
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ensure that the awards they make for such infractions reflect the importance of the
right to personal liberty and 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 for damages for this kind of injuria with 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 on such facts."
[14] Alive to the caution urged by the Supreme Court of Appeal in both Tyu/u referred
to immediately supra and in Minister of Safety and Security v Seymour (2006) SCA
67 RSA at para 17 to the effect that reference to and unqualified reliance on previous
awards is fraught with difficulties, I have nonetheless looked at the following awards
if only for some guarded bench marking:
[14.1] In Tyulu itself an arrest and detention for 15 minutes attracted an award of
R15 000.00 in 2009.
[ 14.2] In 2012 an arrest and detention for four and half hours secured a R50 000.00
solatium for the plaintiff in Minister of Safety and Security and Another v Johannes
Francois Swart (194111) (2012) ZASCA 16(22 March 2012).
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[14.3] In Woji v Minister of Police (9212012) [2014] ZASCA 108(11 September
2014) an unlawful detention period of a year and one month saw the plaintiff
compensated for R500 000.00.
[14.4] The plaintiff in Minister of Safety and Security v Nd/ovu Never(788/11)2012
ZASCA 189( 30 November 2012) was in 2012 awarded a R175 000.00 solatium for
unlawful arrest and detention for 8 days.
[15] In casu, the plaintiff was unlawfully arrested on 28 October 2016 and was only
released from the consequent unlawful detention on 07 November 2016. He was thus
in unlawful detention for 11 days.
[16] Beyond the natural consequences of detention which are deprivation of liberty
and restricted access to amenities of life, there is no evidence before me of the
conditions under which the plaintiff was detained, how exposed he was to degradation
and humiliation and indignity; all of which are factors about which the authorities upon
which I benchmark supra are based and evidence led. This point is not advantageous
nor helpful to the plaintiff in the determination of solatium in this matter.
[17) All things being equal and from a study of the authorities referred to supra and
others not necessarily mentioned in this judgement, it seems to me that, on an
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unsteady average, our courts have generally determined a day of unlawful detention
to be equivalent to the present-day value of R25 000.00 to R35 000.00.
[18] Regard being had to the dearth of evidence on whom exactly the plaintiff is, that
is, except his age and occupation as a teacher, absence of evidence on how
unpalatable the plaintiff's unlawful detention was , on who saw him detained, on how
many people, if any, he was exposed to as an accused chained or not, on the
conditions of the cells he was kept in, the kind of nutrition he was subjected to and
generally how his reputation was negatived by the arrest and detention, I am inclined
to determine the plaintiff's solatium at the baseline of the spectrum I have indicated
to, in my view, be the comparable daily approximate regarding unlawful detention.
Approached from that angle the 11-day detention equates to R275 000.00.
[19) However on further reflection upon and due regard to the two principles attendant
to the determination of a proper solatium I mentioned supra, I find that I must show ,
in my determination of an award, a heavy leaning in favour of the upholding of the
right to liberty as against the need to protect the meagre public purse on which much
more societal mouths depend. Indeed, as it is astutely stated in the Bapedi idiom of
"Feta kgomo o tshware motho", human rights must always be found to be much
weightier than commercial interests. In that regard I am inclined to reflect this court's
serious and stern frow n upon the conduct of the police in unlawfully arresting and
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detaining people, by ordering a further R100 000.00 to the plaintiff's unlawful arrest
and detention general damages solatium.
Unlawful assaults
[20) It was pleaded in the plaintiff's amended particulars that the plaintiff was
assaulted with fists and open hands, kicked with booted feet all over the body and in
particular on his genitalia, suffocated with a plastic bag by the police and further that
all these forms of assault led to multiple resultant sequelae such as painful coughs,
internal injuries and urination of blood. However, no evidence was led on all this. The
mere presence of a J88 form in the court file, which although not even suggesting a
medical case as grave as pleaded, does not, absent it being led into evidence orally
or per uniform rule 38(2), amount to evidence before me .
[21) This leaves me with nothing beyond the indignity and generalized pain, discomfort
and suffering visited upon the plaintiff to help determine general damages arising from
the two assaults, which I take cumulatively, suffered by the plaintiff at the hands of the
defendants.
[22) I take guarded counsel from both Mgele and Nyamanda to which I was referred
by counsel for the plaintiff, Mr. Mbali and to whose professionalism in dealing with this
matter I am grateful. Additional thereto I am guided within the Tyulu vigilance against
slavishly following previous awards by Mfeyana J in the unreported matter of M R v
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L Mokgethi N.O a decision of the North West Division of the High Court in
Mafikeng decided on 16 February 2024 (" M R")where in a more serious assault
and rape claim and, unlike in casu, evidence was led to prove quantum, the plaintiff
was awarded R650 000.00 in general damages.
(23] Given the already lamented dearth of evidence to help determine general
damages quantum, the primacy of the constitutional right to physical integrity and the
guiding awards in Mge/e, Nyamanda and M R listed supra where, unlike in casu,
evidence was led on the extent of the injuries to help determine general damages
quantum, I can, regard being had to the principles outlined in Tyu/u above, go no
higher than R75 000. 00 as general damages for each of the two assault claims. This
leaves me with an amount of R 150 000.00 as compensation for the two assault
claims.
COSTS
[24] I have in the introductory part of this judgement indicated how the defendants in
this matter have misled this court on the question of whether the merits or liability in
this matter had previously been settled or not.
[25] It became apparent to this court that when counsel for the defendants argued that
the merits were still in dispute, he was aware or at least ought to have reasonably
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been aware that they were indeed settled months earlier per court order. The result
was a needless and avoidable argume nt and consequent postponement of the matter
to another day.
[26] This court does not take kindly to how the defendants handled this issue and
wou ld be remiss if it does not exercise its discretion in favour of showing its stern
frown upon the defendants with a punitive costs order, the subsequent profuse
apologies tendered by counsel for the defendants, notwithstanding.
[27] It being so that costs should follow the event, I find that they should do so
punitively on an attorney and client scale.
ORDER
[28] In the backdrop of all the foregoing, I make the following order:
[28.1] The first defendant shall pay to the plaintiff an amount of
R 525 000.00((FIVE HUNDRED AND TWENTY-FIVE THOUSAND RANDS
ONLY) comprised of R375 000.00 general damages for unlawful arrest and
detention and R150 000.00 for unlawful assault.
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[28.2] The amount in 24.1 above shall, within 180 days of this order, be paid by
direct transfer into a trust account nominated by the plaintiff's attorneys of record
which nomination shall be made to the defendant within 14 days of this order.
[28.3] The defendant shall pay the plaintiffs taxed or agreed to attorney and
client costs on a high court scale which costs shall include the costs attendant to
obtaining expert reports and the costs of counsel on scale B
[28.4] Should the defendant fail to pay the amoun t in 24.1 above within the 180
days and/or the agreed to or taxed costs within 30 days of agreement or taxation;
the plaintiff shall be entitled to recover interest thereon on the prescribed rate of
interest from the date of mora to date of final payment.
MALOSE S MONENE
ACTING JUDGE OF THE HIGH COURT ,
LIMPOPO DIVISION, POLOKWANE
Heard on
Judgment delivered on
For the Plaintiff
For the Defendants
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APPEARANCES
: 21 June 2024
: 14 November 2024
: Adv. S Mbali
: Instructed by David Mahapa Incorporated
: Tel: -015 295 7923
: Email: admin@mahapainc.co.za
: dmahapainc@telkosa.net
: Adv. K Mohlake
: Instructed by: State Attorney, Polokwane