REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE No:8085/2021
(1)
(2)
(3)
In the matter between:
PAULTSHAMANO
And
MINISTER OF POLICE
DIAMOND AJ: PLAINTIFF
DEFENDANT
JUDGMENT
Page -2
[1] On or about 14 November 2018 the Plaintiff, while in
Johannesburg received a call from a police officer a certain officer
Moraba from the Polokwane police station. The warrant officer
enquired about the Plaintiff's whereabouts and requested the
Plaintiff to arrive at the Polokwane police station. The Plaintiff
indicated to the warrant officer that he was in Johannesburg but
that he would visit the police station the following day upon his
return.
[2] The Plaintiff presented himself at the police station on 15
November 2018. He was arrested summarily without a warrant
and the police officers alleged that he committed fraud as intended
in section 1 of act 51 of 1977, on or about 17 October 2018 at or
near Hans van Rensburg Street in the district of Polokwane.
[3] The Plaintiff was detained for one day without release on bail.
[4] Resulting from the rest the case was opened against the Plaintiff
[5] Resulting from the arrest the case was opened against the
Plaintiff, but the case was withdrawn and struck from the roll on 16
November 2018 due to a lack of evidence.
[6) The Plaintiff issued summons against the Defendant on 22
September 2021, for payment of an amount of, amongst others, R
2 500 000,00 general damages resulting from what he alleged to
be unlawful detention. In its plea the Defendant filed a bare denial.
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[7] The plea and the defence of the Defendant were struck on 8
October 2024 since the Defendant failed to comply with a court
order dated 25 April 2024 to make discovery in terms of Rule 35
(7).
[8] The Plaintiff now applies for default judgement in terms of Rule
31 (2)(a), for judgement for general damages in the amount of R
2 500 000-00.
[9] At the hearing Counsel representing the Plaintiff, Mr Sikhwari SC,
argued that a quantum of R 500 000-00 should be awarded to the
Plaintiff, being a justifiable amount compensating the Plaintiff for
general damages suffered.
[10] I agree with the submissions made by Mr Sikhwari.
[ 11] I am fully conscious of the fact that an amount of R 500 000-
00 may seem unjustifiably high given the fact that the
Plaintiff was a single night in detention.
[12] Mr Sikhwari referred the court to the case of Mot/adile v
Minister of Police1, in which the Supreme Court of Appeal
explicitly stated that the duration of the detention is not the
only factor that the court must consider in determining what
would be a fair and reasonable award. Other factors are the
following: the circumstances under which the arrest and
1 2023(2) SACR 274 (SCA).
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detention occurred, the presence or absence of improper
motive or malice on the part of the Defendant , the conduct
of the Defendant , the nature of the deprivation, the status
and standing of the Plaintiff, the presence or absence of an
apology or satisfactory explanation of the events by the
Defendant, the simultaneous invasion of other personality
and constitutional rights and the contributory action or
inaction of the Plaintiff.
[13) In my view, the following factors are relevant and
substantiates the amount of R 500 000-00 to be awarded.
• The Plaintiff received a telephone call from a police
officer requesting into present himself to the police
station in Polokwane.
• He did so at his earliest convenience.
• He is summarily arrested on suspicion of fraud,
however up until today not a single explanation has
been given by the Defendant as to why the arrest
took place. It is mind-boggling that the Plaintiff was
arrested in the first instance: what one would have
expected was that the police officers should have
realised that they dealing with a law-abiding citizen
that cooperates with the requests of the police and
that they would be no need to arrest the Plaintiff, at
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least not before any investigators work had been
done.
• In any event, after the investigation had been done
the criminal case was withdrawn struck of the role
and still as of yet, there is no explanation why the
arrest took place.
• While in detention, the Plaintiff was locked up in an
overcrowded police holding cell in Polokwane. The
cell was filthy and there was no proper sanitation .
There was no bed to sleep on. During the night there
were attempts by some inmates to sodomise the
Plaintiff. When the Plaintiff alerted the police officials
of these attempts, they simply stated that this was
the normal lifestyle of incarcerated people in
custody. He had to fight off attempts to sodomise him
the whole night. When he had to relieve himself, it
was in full sight of these people.
• The Plaintiff is a successful businessman in
Polokwane and is married with children.
• He states that the entire experience was
dehumanising and it is adversely affecting his
relationship with his wife and his children.
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[14] In my view, the conduct Defendant compounds an already
unacceptable situation: There is not the slightest indication as
to what led to the immediate arrest. Members of the public are
entitled to rely on and assumption that police officials would
act lawfully and legally within all circumstances . In the context
of this case the Plaintiff cooperated with the police and could
have expected the police to independently investigate any
allegations against the Plaintiff that he committed fraud as was
alleged. This was not done, nor was there any indication at a
later stage as to why the police official deemed it necessary to
effect an immediate arrest.
[15] The circumstances under which the Plaintiff was detained
were shocking. The unconcerned attitude of the police officials
when the Plaintiff attempted to report the fact that inmates tried
to sodomise him, is unforgivable.
[16] Several common law, statutory and constitutional rights of the
Plaintiff were infringed upon -with no explanation or apology
whatsoeve r.
[17] For the above reason I am of the opinion that the Plaintiff is
entitled to judgement in his favour, for an amount of R
500 000-00.
[18] Mr Sikhwari handed the draft order in. I marked the court order
"x" and I order that the draft order "X" is made an order of court.
APPEARANCES:
FOR THE PLAINTIFF
INSTRUCTED BY
FOR THE DEFENDANT
INSTRUCTED BY
DATE OF HEARING
DATE OF JUDGMENT Page -7
G DIAMOND AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISON: POLOKWANE
ADV. S. SIKHWARI SC
MK MULAUDZI ATTORNEYS
No Appearance
STATE
POLOKWANE
07 MACRH 2025
14 MARCH 2025 ATTORNEYS: