THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 154/2024
In the matter between
TRISCE JANE VAN DER NEST NO APPELLANT
(In her representative capacity of
Estate Late Lend Mogapi 6914 /2023)
and
MINISTER OF POLICE RESPONDENT
Neutral citation: Van der Nest NO v Minister of Police (154/2024 ) [2025] ZASCA 42
(10 April 2025)
Coram: MOCUMIE, SCHIPPERS and COPPIN JJA and MUSI and VALLY AJJA
Heard: This appeal was, by consent between the parties, disposed of without an
oral hearing in terms of s 19 (a) of the Superior Courts Act 10 of 2013.
Delivered : This judgment was handed down electronically by circulation to the parties’
representatives by email, publication on the Supreme Court of Appeal website, and
released to SAFLII. The date for hand down is deemed to be 10 April 2025 at 11h00.
Summary: Civil procedure – whether a court of appeal can raise an issue mero motu –
Interpretation of s 39(2) of the Civil Proceedings Evidence Act 25 of 1965 – unlawful arrest
and detention – quantification of general damages – whether an appellate court can
substitute an award of the high court on appeal .
2
ORDER
On appeal from: North West Division of the High Court, Mahikeng (Reddy AJ, Djaje
AJP and Mfenyana J concurring, sitting as a court of appeal ):
1 The appeal is upheld with costs , including the costs of two counsel.
2 Paragraph (i) of the order of the full court is set aside and substituted with the
following:
‘The defendant is ordered to pay the plaintiff an amount of R 50 000 ( fifty thousand)
plus interest , at the prescribed rate per annum, reckoned from the date of the trial
court ’s judgment to the date of payment.’
JUDGMENT
Mocumie JA ( Schippers and Coppin JJA and Musi and Vally AJJA concurring):
[1] This is an appeal against the judgment and order of the full court of the North West
Division of the High Court, Mah ikeng (per Reddy AJ , with Djaje AJP and Mfenyana J
concurring) (the high court) . The issue s for determination are (a) whether the full court
correctly raise d, mero motu , as an issu e the swearing -in of a witness at the trial (b)
whether the full court correctly concluded that the witness was not properly sworn -in, as
contemplated in s 39(2) of the Civil Proceedings Evidence Act 25 of 1965 ( the Act) and
(c) the quantification of damages on appeal . The appeal is with special leave of this Court .
It is unopposed and t he parties agreed that it may be disposed of without oral argument
on the appellant’s papers , as contemplated in s 19(a) of the Superior Courts Act 10 of
2013 (the SC Act) .1
1 Section 19( a) of the Superior Courts Act 2013 provides that the Supreme Court of Appeal or a Division
exercising appeal jurisdiction may, in addition to any other powers, dispose of an appeal without the hearing
of oral argument.
3
[2] On 11 November 2019, around 18:00, the plaintiff in the high court,
Ms Lend Mogapi (Ms Mogapi), was arrested by Warrant Officer Kgananyane
(W/O Kgananyane) , without a warrant , at her home in Stella, North West province while
she was with her partner , Mr Maruping . She was arrested with her neighbours looking on,
which embarrassed and humiliated her. She was put in the back of the police van in which
there was a rifle. The police drove at high speed through potholes and in the darkness to
the police station . She experienced pain in her right leg due to an old injury she had
sustained. She was frightened.
[3] W/O Kgananyane was acting in the course and scope of his employment as a
police officer in the South African Police Service . He informed Ms Mogapi that she was
being arrested for possession of suspected stolen property . She was transported to and
detained at the Pudimoe police cells . She was held there until 12 November 2019, around
15:00, when she was released on warning.
[4] Ms Mogapi was not given food or water. The police cells were filthy and dusty and
the toilet was not working. She was detained in a cell where she had to sleep very close
to the toilet bowl. There was no mattress. The blankets she was given were dirty, and as
a result, her body itched . Although she was alone in the cell, there were male detainees
in a cell close by . They could see her and insulted and hurled profanities at her . She had
no privacy . She was not allowed to leave the police station to use the bathroom privately .
She was not offered a chair to sit on. She sat on a toolbox -like structure.
[5] The police gave no explanation why she had been arrested in public . They did not
explain why they did not use any of the other methods provided for in s 38 of the
Criminal Procedure Act 51 of 1997 (the CPA) to secur e her attendance at court and why
they had to resort to the following extreme measures : arresting her publicly , transporting
her in the b ack of a police vehicle, detaining her for a day and a half in a police cell ,
approximately 98,7 kilometers away from her home.2 Ms Mogapi has regrettably passed
2 Section 38 of the Criminal Procedure Act 51 of 1977:
‘Methods of securing attendance of accused in court
4
away before the hearing of this appeal. She is now substituted by the Executor of her
estate, Ms Trisce Jane van der Nest NO.
[6] Following her ordeal, Ms Mogapi issued summons in the high court for general
damages suffered as a result of the unlawful arrest and detention, in the amount of
R500 000 (five hundred thousand rand) , plus interest. The matter proceeded to trial on
both merits and quantum before Snyman J. The Minister of Police (the Minister), as the
responsible Minister under who m W/O Kgananyane worked, called three witnesses . Ms
Mogapi testified in person and called one witness , her partner , Mr Maruping, in support
of her case . The high court found that the arrest and detention of Ms Mogapi were
unlawful. On 30 May 2022 , it granted an order against th e Minister in the amount of
R15 000 ( fifteen thousand rand ). It did not order interest to be paid. Aggrieved by this
decision , Ms Mogapi , applied for leave to appeal to the full court. On 20 January 2023,
Snyman J granted leave to appe al the correctness of the amount and the failure to grant
interest on the amount awarded .
[7] On 9 June 2023, the full court heard the appeal and reserved judgment . Whilst
writing the judgment ,3 Reddy AJ (as he then was) , writing for the court, concluded that
the oath had not been properly administered to the appellant during the hearing in the
high court. On 22 August 2023, Djaje AJP issued a directive in which she requested the
parties to submit additional heads of argument addressing this issue. Counsel for
Ms Mogapi apparently could not obtain instructions from her and did not file heads of
argument .
[8] The full court held that the oat h was not properly administered to Ms Mogapi. It
referred to 39 read with ss 40 and 41 of the Act, and concluded:
(1) Subject to section 4(2) of the Child Justice Act, 2008 ( Act 75 of 2008 ), the methods of securing the
attendance of an accused who is eighteen years or older in court for the purposes of his or her trial shall
be arrest, summons, written notice and indictment in accordance with the relevant provisions of this Act.
(2) . . . ’
3 The judgment is reported on SAFLII as Mogapi v Minister of Police (CIV APP FB 02/23) [2023] ZANWHC
189 (16 October 2023).
5
‘[w]hat is apparent from section 39(1) of the CPEA was to make it explicit that a witness who was
about to testify should speak the truth, the whole truth and nothing but the truth. In the
administering of the oath on the appellant, the words impressing on the appellant to tell the truth
do not feature, in whatever form . The oath was not properly administered as there was no
innovation, to tell the truth, and as a result of the oath not being properly administered.
Ms Mogapi’s evidence did not have the status and character of admissible evidence .’
[9] Consequently, the full court set aside the order of the high court and remitted the
matter for trial before another presiding officer on both the merits and quantum. This is
the issue to which I turn before considering the actual issue that was before the full court
for determination, namely : the quantum of the damages awarded by the high court and
the interest on the quantum which the high court omitted to add to its order .
[10] The approach to interpreting legislative provisions, whether acts or regulations
made pursuant to an Act, is well settled. It was recently summarised in AmaBhungane
Centre for Investigative Journalism NPC v President of South Africa :4
‘[O]ne must start with the words, affording them their ordinary meaning, bearing in mind that
statutory provisions should always be interpreted purposively, be properly contextualised and
must be construed consistently with the Constitution. This is a unitary exercise. The context may
be determined by considering other subsections, sections or the chapter in which the keyword,
provision or expression to be interpreted is located. Context may also be determined from the
statutory instrument as a whole. A sensible interpre tation should be preferred to one that is absurd
or leads to an unbusinessl ike outcome.’ (Footnotes omitted.)
[11] Section 39 (1) of the Act provides that ‘[n]o other person other than a person
referred to in section forty and forty-one shall be examined as a witness otherwise than
upon oath ’.5 Section 39(2) stipulates that ‘ [t]he oath to be administered to any person as
a witness shall be administered in the form which most clearly conveys to him the
4 AmaBhungane Centre for Investigative Journalism NPC and Another v President of South Africa [2022]
ZACC 31; 2023 (2) SA 1 (CC); 2023 (5) BCLR 499 (CC) para 36.
5 Section 39(1) of the Civil Proceedings Evidence Act 25 of 1965.
6
meaning of the oath and which he considers to be binding on his conscience ’. Section 40
stipulates:
‘40 Affirmations in lieu of oaths
(1) In any case where any person who is or may be required to take an oath object [s] to do so, it
shall be lawful for such person to make an affirmation in the words following:
“I do truly affirm and declare that”
(here insert the matter to be affirmed or declared) .
(2) Any person authorized, required or qualified by law to take or administer an oath shall accept,
in lieu thereof, an affirmation or declaration as aforesaid.
(3) Such affirmation or declaration shall be of the same force and effect as if the person who made
it had taken such oath, and the same penalties and disabilities which are respectively in force in
respect of and are attached to any false or corrupt takin g and subscribing of any oath administered
in accordance with section thirty -nine, and any neglect or refusal in regard thereto, shall apply
and attach in like manner in respect of the false or corrupt making or subscribing respectively, of
any such affirm ation or declaration as in this section mentioned and any neglect or refusal in
regard thereto. ’
[12] Section 41 provides:
‘41 When unsworn or unaffirmed testimony [is] admissible
(1) Any person who, from ignorance arising from youth, defective education or other cause, is
found not to understand the nature or to recognize the religious obligation of an oath or affirmation,
may be permitted to give evidence in any civil proceedings without being upon oath or affirmation,
if, before any such person proceeds to give evidence, the person presiding at the proceedings in
which he is called as a witness, admonishes him to speak the truth, the whole truth and nothing
but the truth and admin isters or causes to be administered to him any form of admonition which
appears, either from his own statement or from any other source of information, to be calculated
to impress his mind and bind his conscience, and which is not, as being of inhuman, imm oral or
irreligious nature, obviously unfit to be administered.
(2) Any person to whom an admonition has been administered as aforesaid, who in evidence
willfully and falsely states anything which, if sworn, would have amounted to the offence of perjury
or any statutory offence punishable as perjury, shall be deemed to have committed that offence,
and shall upon conviction be liable to such punishment as is by law provided as a punishment for
that offence.’
7
[13] A plain reading of these provisions shows that there are different ways in which a
witness may be sworn in before they testify in a court of law . Where they are incapacitated
to testify, they may be admonished. The importance of the provisions is for the judicial
officer to get a sense that the witness concerned understands that they are about to give
evidence ; that what is required is the truth ; and that they appreciate that they must speak
the truth . Although s 39(2) uses peremptory language, ‘shall’, apart from the exceptions
mentioned in ss 40 and 41, the exercise envisaged is not formalistic to the point of
preferring form above substance. The provisions must be applied practically , supported
by the trial court’s own observance of the witness when they are about to testify.
Section 39(2) must be read in context with ss 40 and 41.
[14] The context is also important. It is common cause that t he full court found that the
Minister conceded liability. The Minister did not challenge the high court’s findings on the
merits or the oath taken by the witnesses. It is Ms Mogapi who challenged the amount of
the damages awarded by the high court. The issue (of the witness not being sworn in) did
not arise during the argument , nor was it ventilated at all in the open court; t he high court
or the full court . It was not canvassed in the papers . The high court and the parties were
satisfied that all the witnesses , including Ms Mogapi were properly sworn in. The record
shows that Ms Mogapi was asked if she objected to taking a prescribed oath. And she
clearly stated that she had no objection to taking the prescribed oath, indicating that she
knew what it meant to take an oath or the import of taking an oath. Furthermore, she was
asked whether she considered the oath to be binding on her conscience. She was asked
to raise her right hand and say, ‘So help me God ,’ and she did.
[15] Assuming the full court was correct to prefer a detailed process which it did not
see on the record, it correctly raised the issue with the parties as it was duty -bound to do.
Counsel for Ms Mogapi sought an indulgence to get instructions and to peruse the
transcribed record to appreciate the issue and respond adequately, within the three days
provided. He raised an important aspect , namely, the state of transcribed records , which
tend not to be complete and do not give a verbatim account of what happened i n court.
Since Ms Mogapi gave evidence through an inter preter, s ome words might not have been
8
translated onto the record, he argued. Thus, he expressed a need to thoroughly peruse
the transcribed record to determine what exactly had happened.
[16] The answer to the request by the full court in the judgment was this:
‘The submissions and proposals for further investigations as requested by Mr Nienaber, the
attorney of record, for the appellant does not take the matter further. The issue that was alluded
to in the Directive by this Court is crisp. The complete record is before the court. No further
affidavits need to be deposed to. In the instance of the appellant, the language service practitioner
was not used as an independent conduit by the court a quo in the administering [of] the oath. The
extracts from the record t o be referred to set out the exchange that occurred in the administering
of the oath. The submissions by Mr Nienaber that the record be listened to is of no moment, given
the record is laid before this Court.’
[17] As indicated, this was the first time the parties got to know how critical the issue
was to the determination of their appeal , to the extent that Ms Mogapi’s appeal on both
the merits and quantum was dismissed with costs. I have already indicated that s 39(2)
cannot be interpreted as the full court has done , regardless of the dire consequences of
setting aside the entire proceedings on a technicality; particularly when the Minister
conceded the merits as stated in the full court’s judgment . The context tells a different
story: Ms Mogapi , as observed by the trial judge and all legal representatives , in the
absence of any objection raised by any of the parties, must be deemed to have been
properly sworn in.
[18] The issue which the full court did not determine , as it was supposed to , revolve s
around the crisp issue of the quantum. Ms Mogapi was not given an opportunity to go
through the transcribed record to give a proper account of what exactly transpired. The
submission on her behalf that the interpreter’s translation may not have been recorded
properly is not far -fetched. The full court denied her constitutional right to be heard before
any decision could be made. Thus, the full court breached that right by deliver ing the
judgment without all the information presented to it on the issue.
9
[19] As aptly stated in S v Baadjies ,6 which the full court cited , but failed to follow:
‘Experience shows that even in cases where witnesses are much older than the complainant, the
word ‘oath’ remains a nebulous concept, whereas the invocation to speak the truth is more readily
appreciated and understood. The transcript demonstrates unequivocally that the judge was
satisfied that the complainant comprehended the difference between the truth and falsehood, and
his admonishment that she speaks the truth was in my view sufficient to render the complainant’s
evidence admissible. ’ (Emphasis added) .
It follows that there is no basis for the full court to have declared the proceedings before
the high court a mistrial on both the merits and quantum.
[20] This touches on the question of whether a court can, on appeal, mero motu, raise
an issue which was not raised by any of the parties. The powers of an appellate court are
circumscribed in terms of s 19 of the SC Act . It may: dispose of an appeal without hearing
of oral evidence (s 19(a)); receive further evidence (s 19 (b)); remit the case to the court
of first instance, or to the court whose decision is the subject of the appeal, for further
hearing, with such instructions as regards the taking of further evidence or otherwise as
it deems necessary (s 19 (c)); and confirm, amend or set aside the decision which is the
subject of the appeal and render any decision which the circumstances may require
(s 19(d)). Ms Mogapi was aggrieved with the order of the high court in respect of the
quantum and she approached the full court in that regard .
[21] It is trite that c ourts adjudicate issues outlined by the parties in their pleadings , as
was found by this Court in Fischer and Another v Ramahlele and Others .7 It is for the
parties to identify the dispute and for the court to determine that dispute and that dispute
alone. In some cases, the parties may expand the issues for determination by the way
they conduct the proceedings. In others, the court may, mero motu , raise a question of
law that emerges fully from the evidence and is necessary for the decision of the case ,
subject to the p roviso: no prejudice will be caused to any party by its being decided.
6 S v Baadjies 2017 (2) SACR 366 (WCC) para 29.
7 Fischer and Another v Ramahlele and Others [2014] ZASCA 88; 2014 (4) SA 614 (SCA); [2014] 3 All SA
395 (SCA) para 13.
10
[22] It is, however , also trite that a court can also raise an issue mero motu where:8
raising it is necessary to dispose of the matter, and it is in the interests of justice to do so,
which depends on the circumstances at hand.9 Where a point of law is apparent on the
papers, but the common approach of the parties proceeds on a wrong perception of what
the law is, a court is not only entitled but is in fact also obliged, mero motu , to raise the
point of law and require the parties to deal with it .10
[23] As indicated, the full court raised the issue of Ms Mohapi’s swearing -in. It was not
raised by the parties at any stage . The parties were required to deal with that issue as
per a directive that the A cting Judge President (AJP) issued. And the issue was decided,
and judgment was delivered before the parties could respond. In principle and as
precedent show s, there is nothing wrong with a court raising a point of law which the
parties did not raise. The caveat is how a court proceeds to invoke this power . Fairness
is paramount , and the trite principle of audi alteram partem is central . The principle, now
enshrined in our Constitution in the Bill of Rights , requires , inter alia, that a person be
given a fair hearing before their matter can be determined . Section 34 of the Constitution
provides that every litigant is entitled to a fair public hearing before a court of law if such
a litigant has a dispute which can be resolved by the application of the law. To the extent
that Ms Mogapi , through her counsel , was not allowed to address the issue raised
pertinently by the full court before it delivered judgment, the full court regrettably erred
fundamentally . This , on its own , vitiates the entire proceedings.
[24] I now turn to the issue which was for determination before the full court which
remains in abeyance . 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 hours a plaintiff had spent in detention. Significantly, the duration of the
detention is not the only factor that a court must consider in determining what would be
8 Booi v Amathole District Municipality and Others [2021] ZACC 36; [2022] 1 BLLR 1 (CC); (2022) 43 ILJ
91 (CC); 2022 (3) BCLR 265 (CC).
9 Ibid para 35.
10 CUSA v Tao Ying Metal Industries and Others [2008] ZACC 15; 2009 (2) SA 204 (CC); 2009 (1) BCLR 1
(CC) ; [2009] 1 BLLR 1 (CC) ; (2008) 29 ILJ 2461 (CC) para 67.
11
fair and reasonable compensation to award.11 The award must be fair to both sides. The
correct approach is to have all the facts of the particular case and to determine the
quantum of damages on such facts.12
[25] In his heads of argument, c ounsel for Ms Mogapi submitted that this Court should
not remit the matter to the full court as it would be an exercise in futility even if the full
court did not deal with the issue on appeal before it. He submitted further that the issue
of the merits was decided in favour of the plaintiff, Ms Mogapi, ‘which finding was based
on the defendant’s own evidence . . . [ M]oreover , this finding of Snyman J was never
challenged by the defendant .’ Counsel for Ms Mogapi further contended that the trial
court , in a mechanical approach of awarding R15 000 per day , applied a one-size-fits-all
approach , followed in the North West Division at the time , and which was recently
critici sed by this Court in Motladile v Minister of Police (Motladile) .13
[26] In arriving at the amount of R15 000, the high court purport edly had regard to
comparable cases .14 It stated that it took into account the psychological effect of the
detention on the plaintiff in that she was humiliated in front of her neighbours, the duration
of the detention, that she was arrested and transported in a police vehicle as well as the
humiliation of other detainees’ shouting profanities at her in the holding cells. It then
concluded that ‘the quantum in the amount of R15 000 would be a fair and just amount’ .
It then granted costs in favour of Ms Mogapi but made no order on the interest payable
on that amount .
11 Motladile v Minister of Police [2023] ZASCA 94; 2023 (2) SACR 274 (SCA) para 17 .
12 Minister of Safety and Security v Tyulu [2009] Z ASCA 55; 2009 (2) SACR 282 (SCA) ; [2009] 4 All SA 38
(SCA); 2009 (5) SA 85 (SCA) para 26.
13 Op cit fn 11 .
14 Tlhaganyane v Minister of Safety and Security [2013] ZANWHC 12; Solomon v Visser and Another 1972
(2) SA 327 (C); Areff v Minister van Polisie 1977 (2) SA 900; Lui Quin Ping v Akani 2000(4) SA 68 (W);
Manase v Minister of Safety and Security and Another 2003 (1) SA 567 (Ck); Seria v Minister of Safety and
Security [2004] ZAWCHC 26 ; 2005 (5) SA 130 (C) ; [2005] 2 All SA 614 (C) . Masis i v Minister of Safety and
Security [2010] ZAGPPHC 280; 2011 (2 ) SACR 262 (GNP) ; Tyulu ; Woji v Minister of Police 2015 (1) SACR
409 (SCA); Mahleza v Minister of Police and Another [2019] ZAECGHC 137; 2020 (1) SACR 392 (ECG) ;
and Skosana v Minister of Police [2021] ZANWHC 79.
12
[27] It is trite that in cases involving deprivation of liberty, the quantum of damages to
be awarded is in the discretion of the trial court, to be exercised fairly, and generally
calculated according to what is equitable and just, and on the merits of the case itself ( ex
aequo et bono ). As a result, an appeal court should be slow to interfere, unless there are
specific reasons to do so.15 Also, no judgment can be all -embracing, and the omission of
a specific factor from a judgment does not necessarily imply that the court a quo failed to
consider t hat factor in exercising its discretion.16 Furthermore, in the absence of material,
demonstrable misdirection on the part of the trial court, its findings of fact must stand as
presumptively correct.17
[28] The law on assessing damages for unlawful arrest and detention has been
canvassed in comparable cases over the years . This Court stated the following in Minister
of Safety and Security v Tyulu :18
‘In the assess ment 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 some much needed
solatium for 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 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 of damages on such facts . . . ’ (Footnote s
omitted.)
[29] In Diljan v Minister of Police (Diljan ),19 this Court stated:
15 Neethling v Du Preez and Others; Neethling v Weekly Mail and Others [1994] ZASCA 133; 1995 (1) SA
292 (A) ; [1995] 1 All SA 441 (A) at 301H .
16 R v Dhlumayo and Another 1948 (2) SA 677 (AD) at 702.
17 S v Hadebe and O thers [1997] ZASCA 86 ; 1997 (2) SACR 641 (SCA) at 645E -F.
18 Op cit fn 12 above para 26.
19 Diljan v Minister of Police [2022] ZASCA 103 ; 2022 JDR 1759 (SCA) paras 18 -19.
13
‘The acceptable method of assessing damages includes the evaluation of the plaintiff’s personal
circumstances; the manner the of arrest; the duration of detention ; the duration of the detention;
the degree of humiliation which encompasses the aggrieved p arty’s reputation and standing in
the community; deprivation of liberty; and other relevant factors peculiar to the case under
consideration.
…
Whilst , as a general rule, regard may be had to previous awards, sight should, however, not be
lost of the fact that previous awards only serve as a guide and nothing more. As Potgieter JA
cautioned in Protea Assurance Co Ltd v Lamb :
“It should be emphasi sed, however, that this process of comparison does not take the form of
meticulous examination of awards made in other cases in order to fix the amount of
compensation ”.’
[30] In Brits v Minister of Police & Another ,20 this Court further held :
‘Although awards of damages made in previous decisions may serve as a guide in the
conside ration of an appropriate amount of damages for the injury resulting from unlawful arrest
and detention, such awards are not to be followed slavishly, for every case must be determined
on its facts. It must be borne in mind that the primary purpose of an award of dam ages for unlawful
arrest and detention is not to enrich the aggrieved party but to offer him or her some solatium for
their injured feelings.’ ( Footnote s omitted.)
[31] It is trite that once an appellate court finds that a trial court has not exercised its
discretion judiciously in awarding damages, it must substitute the trial court’s award of
damages. This Court restated the approach of an appellate court to the question of
whether it ca n substitute a trial court’s award of damages in Motladile21 as follows:
‘The approach of an appellate court to the question of whether it can substitute a trial court’s
award of damages is aptly summari sed 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 different to that of the appellate
20 Brits v Minister of Police & Another [2021] ZASCA 161; 2021 JDR 2998 (SCA) para 33.
21 Op cit fn 1 1 above para 12.
14
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 was so palpably inadequate as to be out of proportion to the injury
inflicted” .’22
[32] I agree with counsel for Ms Mogapi that t o remit the matter to the full court to
consider the quantum would be an exercise in futility . With all the evidence on record,
this Court is in as good a position as the trial court to make the determination. If all the
peculiar circumstances of this matter are taken into account , and considering the
comparable cases the high court referred to , damages between R500 000 and R50 000
were awarded , with the period of detention ranging between three months and twenty -
four hours . There is no justifiable reason why the high court awarded R15 000. The
disparity between the amount awarded by the high court and what is considered an
appropriate award is striking. That justifies interference with the high court’s award.
[33] In Diljan , for the unlawful arrest and detention for four nights , this Court , on appeal,
awarded damages in the amount of R 120 000. In Motladile , for the unlawful arrest and
detention for four nights , damages in the amount of R200 000 were granted on appeal.
In Minister of Police v Page23 for the unlawful arrest and detention for one night, R30 000
was awarded as damages . From a survey of the cases, i t is reasonable to conclude ,
without setting a bar, that the courts have awarded damages ranging from R15 000 to
R30 000 per night , with awards varying in light of the circumstances of each case . The
award must be just to reflect the importance of the fundamental constitutional right
infringed, the right to freedom of movement and residence .24 And in this instance the right
to dignity and privacy.
[34] The following should be taken into account : the fairly short duration of the detention
- just over 2 0 hours; the fact that the plaintiff did not suffer any further detention ; ‘the
psychological effect of the detention on the plaintiff in that she was humiliated in front of
22 Dikoko v Mokhatla [2006] ZACC 10; 2006 (6) SA 235 (CC); 2007 (1) BCLR 1 (CC).
23 Minister of Police v Page (CA 231/2019) [2021] ZAECGHC 22 (23 February 2019).
24 Section 21 of the Constitution of the Republic of South Africa,1996.
15
the neighbours, that she was arrested and transported in a police vehicle as well as the
humiliation of [them ] shouting profanities at her in the holding cells ’; that there was no
justifiable reason to have arrested Ms Mogapi. Section 40 of the CPA states that a police
officer may arrest a suspect without a warrant of arrest. The use of the word ‘may’ shows
that a police officer upon arresting a suspect or accused person has a discretion to
exercise any of the options. Not only arrest. On the undisputed fac ts, the arrest in itself
was undoubtedly malicious, and the execution thereof despicable and humiliating.
[35] In follow ing the awards made in previous comparable cases, as well as the
deterioration in the value of the currency over the years, taking into account that eg in
Page ,25 which was decided in 2021, the claimant was awarded R30 000, I regard R50 000
to be an appropriate award for Ms Mogapi’s unlawful arrest and detention . It is important
that all concerned, including the judiciary and legal practitioner s of the North West division
of the high court , take heed of this Court ’s findings in Motladile , and expressly disavow
an approach that there is a ‘one-size-fits-all’ standard that is t o be applied when
determining the quantum in claims of this nature.
[36] Last, is the issue of interest. It is correct that the high court did not indicate the
interest payable on the damages in its order. Section 2 of the Prescribed Rate of I nterest
Act 55 of 1975 prescribes that interest on damages is payable from the date of the
judgment.26 Ex lege , interest is payable on the costs granted.
[37] In the result, the following order is issued :
1 The appeal is upheld with costs, including the costs of two counsel.
2 Paragraph (i) of the order of the full court is set aside and substituted with the
following:
25 Op cit fn 23 above para 16 .
26 Section 2 of the Prescribed Rate of Interest provides that every judgment debt which, but for the
provisions of this subsection, would not bear any interest after the date of the judgment or order by virtue
of which it is due, shall bear interest from the day on which such judgment debt is payable, unless that
judgment or order provides otherwise.
16
‘The defendant is ordered to pay the plaintiff an amount of R 50 000 ( fifty thousand)
plus interest , at the prescribed rate per annum , reckoned from the date of the trial
court ’s judgment to date of payment.’
_______________________
B C MOCUMIE
JUDGE OF APPEAL
17
Appearances
For the appellant A B Rossouw SC with D Smit
Instructed by Nienaber & Wissing Attorneys , Mahikeng
Rosendorf Reitz Barry Attorneys , Bloemfontein .