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in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION, PIETERMARITZBURG
CASE NO: 3934/2021P
In the matter between:
M[...] S[...] Z[...] PLAINTIFF
and
MINISTER OF POLICE FIRST DEFENDANT
NATIONAL DIRECTOR OF PUBLIC PROSECUTION SECOND DEFENDANT
___________________________________________________________________
ORDER
___________________________________________________________________
In the premises it is ordered that:
1. The first defendant is ordered to pay the plaintiff the amount of R800 000.00
together with interest at the rate of 7% a tempore morae .
2. The defendant is ordered to pay the plaintiff’s costs on scale B .
___________________ _______________________________________________
JUDGMENT
________ ________________________________ ___________________________
Mathenjwa J
[1] On 11 June 2021 the plaintiff issued summons against the Minister of Police
and the National Director of Public Prosecutions, claiming damages for unlawful
arrest, detention and malicious prosecution. The defendants opposed the action.
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[2] In his particulars of claim the plaintiff alleges that on 26 March 2020 he was
wrongfully and unlawfully arrested by Ezakheni members of the South African Police
Services while he was at his home at Ezakheni , Ladysmith on alleged charges of
rape. The arrest was effected without a warrant .
[3] The plaintiff was charged, and appeared at Ezakheni Magistrates’ Court on 30
March 2020 . He applied for bail , which was refused by the magistrate. The plaintiff
was thereafter incarcerated at Ladysmith Correctional Facilities , until he was
released on 18 May 2020 , when the prosecut or withdrew the charges against him.
[4] The defendants filed a plea. In their plea th ey contended t hat the plaintiff
failed to serve a notice of his intention to institute proceedings to the defendants in
terms of section 3 of Institution of Legal Proceedings against certain Organs of State
Act 40 of 2002 , therefore , the action should be dismissed. The plaintiff had filed a n
application for condonation for the late issue of the notice , which was not opposed by
the defendants. The defendants do not deny that the plaintiff was arrested by
members of South African Police Services without a warrant , and the rest of their
plea is a bare denial .
[5] It is instructive that on 24 October 2024 t his court issued an order to strike out
the respondents’ defence on the basis that they failed to comply with a court order
dated 18 July 2024. On 3 March 2024 the plaintiff had already served the notice of
set down on the defenda nts informing them that the matter was set down for hearing
on 5 December 2025 , however the defendan ts failed to appear i n court . The matter
came before me on both liability and quantum.
[6] The plaintiff , an adult male person of 2 6 years , testified that on 26 March 2020
he was arrested and detained at Ezakhen i Police Station holding cells. After his
appearance in court on 30 March 2020 he was further detained at Maharaj Prison
until he was released when the prosecutor withdrew the charges against him on 18
May 2020. According to the plaintiff , while he was detained at Ezakheni Police
Station holding cells the toilet in the cell was not flushing because there was no
water. There were three prisoners in the cell when he first arrived at Maharaj Prison,
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but as more inmates arrived, the cell became overcrowded. There were no beds in
the prison cell, so he slept on a blanket on the floor.
[7] The mother of a young girl accused the plaintiff of raping her, leading to the
plaintiff's arrest . At the time of his arrest he disputed that he raped the child, but did
not inform the arresting officers that he was not able to perform sexual intercourse
nor commit rape due to his physical condition.
[8] On Monday , 30 March 2020 , the father of the plaintiff attended at the court
premises where the plaintiff was appearing at Ezakheni , but he was not allowed to
enter into the court house due to the COVID -19 pandemic restrictions , which were in
force at the time. However, he man aged to talk to the investigating officer , Sergeant
Madondo , and informed her that the plaintiff was kidnapped and his genitals
emasculated at Morocco in Soweto in 2013. The incident regarding the abduction
and emasculation of the plaintiff ’s genitals was reported at Morocco Police Station ,
where a J88 report , which was completed by a medical doctor , was issued. That
report , which was discovered in the pleadings before court , clearly depicts that the
plaintiff ’s genitals was emasculated.
[9] It is trite that arrest without a warrant is prima facie wrongful.1 When the police
wrongfully arrest and detain a person , they may be liable for the post -hearing
detention of that person.2 Consequently , the failure by the first defendant to testify
and justify the lawfulness of the arrest and further detention of the plaintiff left this
court with little choice but to find that the arrest and detention was wrongful and
unlawful.
[10] Section 40(1)( b) of the Criminal Procedure Act states that:
‘A peace officer may without warrant arrest any person –
…
(b) whom he reasonably suspects of having committed an offence referred to in
Schedule 1 ’.
1 Minister of Law and Order and others v Hurley and another 1986 (3) SA 568 (A) at 589E -F.
2 Woji v Minister of Police [2014] ZASCA 108; 2015 (1) SACR 409 (SCA).
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For the arresting officer to form a reasonable suspicion that a person has committed
an offence he or she must do an investigation of the facts at his or her disposal , and
based on objective information at his or her disposal take a decision whether the
suspicion is reasonable before he or she puts a person under arrest and detention.3
[11] It is clear from the evidence before court that the arresting officer did not
investigate the allegations and evaluate the facts at her disposal before putting the
plaintiff under arrest and detained him . It is common cause that the plaintiff was
detained at Ezakheni Police Station holding cells and later Maharaj Prison for a
period of 54 days . The investigating officer who was well informed that it was not
possible for the plaintiff to have committed the crime , did not even inform the
prosecutor of the evidence presented to her by the plaintiff’s father , which showed
that it was not possible for the plaintiff to have committed that offence .
[12] Regarding the second defendant's alleged malicious prosecution, I am unable
to see any justification in the evidence presented to the court for this court to
conclude that it was liable for malicious prosecution. The reason for this is that the
plaintiff was never prosecuted ; rather, the prosecutor dropped the complaint against
him after learning of his physical state and concluding that he was incapable of
committing the alleged act.
[13] It is trite that the assessment of the amount of damages to award a plaintiff
who was unlawfully arrested and detained, is not a mechanical exercise , but the
court must have regard to various factors including but not limited to the number of
days that a plaintiff had spent in detention ; the circumstances under which the arrest
and 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 ; awards in comparable cases
and what would be fair and reasonable compensation to award .4
3 Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 814D -E; Ralekwa v Minister of Safety
and Security 2004 (1) SACR 131 (T) .
4 Motladile v Minister of Police [2023] ZASCA 94; 2023 (2) SACR 274 (SCA) para 23 .
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[14] In Minister of Safety and Security v Tyulu the Supreme Court of Appeal held
as follows:5
‘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 .’
In 2022 in Lifa v Minster of Police and others6 the court awarded an amount of R600
00 (six hundred thousand rands) to a plaintiff who was in detention for 90 days. In
2023 , Motladile v Minster of Police7 the Supreme Court of Appeal award ed the
amount of R2000 000 (two hundred thousand rands) to the plaintiff who had been in
detention for 5 days , and i n 2024 in the matter of Sokhela v Minister of Police and
others8 the court awarded an award of R990 000 (nine hundred and ninety thousand
rand) to the plaintiff who had been in detention for 33 days.
[15] The plaintiff is an adult unemployed person of 2 6 years of age . It is common
cause that the plaintiff was in detention for 5 4 days. Apart from the dysfunctional
ablution and his sleeping on the blankets on the floor , the plaintiff testified that he
acquainted himself with the conditions in detention after he met with other inmates.
However, despite the scarcity of information about the plaintiff’s experience in
detention it is not in dispute that South African prisons are severely over crowed
causing inhumane conditions to detained individuals.
[16] The investigating officer's careless use of her arrest authority; failure to
confirm whether the plaintiff was capable of committing the offence and provide
documentary evidence regarding the plaintiff's physical condition to the prosecutor
resulted in the plaintiff's arrest and detention, deprivation of the plaintiff's liberty and
him being held in intolerable prison conditions .
5 Minister of Safety and Security v Tyulu [2009] ZASCA 55 ; 2009 (5) SA 85 (SCA) para 26.
6 Lifa v Minster of Police and others [2023 ] (1) All SA 132 (GJ).
7 Motladile v Minister of Police [2023] ZASCA 94; 2023 (2) SACR 274 (SCA) .
8 Sokhela v Minister of Police and others [2024] ZAGPJHC 1281 .
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[17] I consider that the plaintiff had committed no crime, yet he received neither an
apology nor a satisfactory explanation for his arrest and detention from the first
defendant following his release from unlawful custody. Instead the first defendant did
not even appear in court to explain the circumstances under which the plaintiff was
arrested and detained . Having taken all of the foregoing factors into account, it is my
opinion that a suitable amount for general damages to be paid by the first defendant
to the plaintiff is the sum of R 800 000.00 ( eight hundred thousand rands ). Given the
egregious violation of the plaintiff's rights when the first defendant exercised its arrest
and detention power , the defendant ought to pay the costs to the plaintiff on scale B.
Order
[18] In the premises it is ordered that:
1. The first defendant is ordered to pay the plaintiff the amount of R800 000.00
together with interest at the rate of 7% a tempore morae .
2. The defendant is ordered to pay the plaintiff’ s costs on scale B.
Mathenjwa J
Appearances
Applicant ’s counsel: Mr C Zitsman
Instructed by: Loubser Van Wyk Inc.
Brooklyn
Responden t’s counsel: No appearance
Date of hearing: 3 February 2025
Date of judgment: 13 February 2025
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