IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL LOCAL DIVISION, DURBAN
CASE NO: 3868/2014
3869/2014
3870/2014
In the matter between:
MSIZI CECIL CELE FIRST PLAINTIFF
PHILANI LUKHELE SECOND PLAINTIFF
WELCOME HLONGWA THIRD PLAINTIFF
and
ETHEKWINI MUNICIPALI TY DEFENDANT
___________________________________________________________________
ORDER
___________________________________________________________________
In the premises the following order s are made:
1. Case number 3868/2014
(a) The defendant is liable to pay to the plaintiff the amount of R231
000.
(b) Interest on the aforesaid amount at the rate of 15.5% per annum
from the date of judgment to the date of payment.
(c) The defendant to pay the plaintiff s’s costs on scale B.
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2. Case number 3869/2014
(a) The defendant is liable to pay to the plaintiff the amount of R649
500.
(b) Interest on the aforesaid amount at the rate of 15.5% per annum
from the date of judgment to the date of payment.
(c) The defendant to pay the plaintiff’s costs on scale B.
3. Case number 3870/2014
(a) The defendant is liable to pay to the plaintiff the amount of
R240 ,200.
(b) Interest on the aforesaid amount at the rate of 15.5% per annum
from the date of judgment to the date of payment.
(c) The defendant to pay the costs to the plaintiff on scale B.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Mathenjwa J
[1] The plaintiffs issued summons against eThekwini Municipality, claiming
damages for unlawful arrest and detention , contume lia and loss of earnings under
three different case numbers . The first plaintiff Msizi Cele claims under case number
3868/2014, the second plaintiff Philan i Lukhele claims under case number 3869/2014
and the third plaintiff Welcome Hlongwa claims under case number 3870/2014 .
Liability has been settled at 100 percent in favour of the plaintiffs . The matter comes
before me only for quantum .
[2] All three pla intiffs testified in support of their claim s and the defendant closed
its case without calling any witness . The undisputed evidence of the plaintiffs’ case is
that on 15 December 2012, they were walking on Wembl edash Road in Chatsworth
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towards the ta xi rank. They had two dump y of bee rs in their possession which w ere
still sealed. An eThekwini Metro politan police officer (Metro police) who was in a
private motor vehicle approached and accused them of drinking in public. Th e plaintiffs
denied that they were drinking in public as their beers were sealed.
[3] They proceeded to the taxi rank , boarded a taxi to Durban and the taxi took off.
The Metro police followed behind the taxi in which they were travelling until they came
across member s of the Metro police who were at a roadblock on the road . The Metro
police who were at the roadblock stopped the taxi in which the plaintiffs were travelling
and the police officer who was following them pointed them out to the other police
officer. They were pulled out of the tax i by the police officers.
[4] When the plaintiff s asked the Metro police what they have had done wrong ,
the police did not answer them , instead th ey kicked them with booted feet and told
them that they were going to die. The assault took place in front of members of the
public who were in the taxi. The police fir ed four shots towards the direction of M sizi
but missed him and they eventually shot Philani on his knee. The plaintiffs were
handcuffed with their hands at their back and put into the Metro police van. They were
sprayed with pepper spray by the police while they were inside the van.
[5] There were no wind ows in the police van . When Philani told th e police that he
was suffering from asthma on e of the police officer’s took out the inhaler from his
pocket and inhaled him because he was handcuffed with his hands at the back . The
police took them to Chatsworth police station where they were further sprayed with the
pepper spray while they were inside the van. The plaintiffs screamed . The police then
opened th e door of the van , pulled out Msizi and Welcome, made them to s it on the
ground and continued assaulting them. Philani was left seat ed inside the van and
blood was oozing from his injured leg. The plaintiffs overhead one of the police officer ’s
telling another officer that they must craft a story that the plaintiff s were attempting to
deprive the police officer of his firearm.
[6] Shortly thereafter an ambulance arrived. The d river of the ambulance got off,
spoke to the police officer and then drove away . The police drove away with Philani to
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hospital where he was admitted and treated for his injury while guarded by the police .
At all times when he was in hospital he was handcuffed to a bed. M sizi and Welcome
were taken by the police to Bellai r police station where they were detained . They were
detained in the police cells for four days and thereafter taken to Chatsworth
Magistrates’ Court where they were released by a police officer without even
appearing in court.
[7] During th eir four days in detention Msizi and Welcome did not eat any food ,
they survived by eating a meal given to them b y one of the detainee ’s who was
receiving food from his family. Philani spent six days in hospital and thereafter
released without appearing in court.
[8] All three plaintiffs consulted a clinical psychologist and neuro psychologist. In
addition, Philani consulted an orthopaedic surgeon . The psychologist and neu ro
psychologist explain the effect of depression and anxiety that resulted from the arrest
and assault inflicted to the plaintiffs. The orthopaedic surgeon found that Philani’s
injury on the knee affect s his ability to ascend , squatting ability as well as his ability to
run.
[9] The parties agree that all plaintiffs were employed a t the time of the incident
and were further gainfully employed after the incident . The defendant does not dispute
that Philani’s loss of earnings am ount to R19 500 , Msizi ’s amount s to R9 000 and
Welcome ’s amount s to R18 200 . Both counsel have referred to case law regarding the
determination of quantum for damages. T he defendant referred to the cases of
Lamula and Other v Minister of Police1 where the plaintiff was paid R100 000 for arrest
and detention of five days ; in Peterson v Minister of Safety and Security2 the plaintiff
was awarded an amount of R60 000.00 in respect of damages for unlawful arrest and
detention and in Nkosi v Minister of Safety and Security3 the plaintiff was awarded the
amount of R100 000 for assault which resulted in a cut lip and tenderness of his
testicles.
1 Lamula and Others v Minister of Police [2013] ZAGPJHC 130.
2 Peters on v Minister of Safety and Security [2009] ZAECGHC 65.
3 Nkosi v Minister of Safety and security [2012] ZAGPJHC 110 .
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[10] Counsel for the plaintiff s referred to the cases of Minister of Police v S abisa and
Another4 where the plaintiff was awarded R400 000 for unlawful arrest and detention
for nine days and R110 000 for assault, torture and cont umelia . In Minster of Police v
Khedama5 the plaintiff was awarded R350 000 for detention for twelve days.
[11] It is trite that the primary purpose of an award for damages ‘is not to enrich the
injured party but to offer him or her some much -needed solatium for his or her injured
feelings ’ commensurate with the injury inflicted .6 In assessing the amount of damages
to award to a plaintiff who was unlawfully arrested and detained the court must have
regard to the various factors including :7
‘(a) the circumstances under which the arrest and detention occurred; (b) the presence or
absence of improper motive or malice on the part of the defendant; (c) the conduct of the
defendant; (d) the nature of the deprivation; (e) the status and standing of the plaintiff; (f) the
presence or absence of an apology or satisfactory explanation of the events by the
defendant; (g) awards in comparable cases; (h) publicity given to the arrest; (i) the
simultaneous invasion of other personality and constitutional rights; and (j) the contributory
action or inaction of the plaintiff.’ (Footnote omitted.)
[12] The number of days spent by a plaintiff in detention and having regard to
awards made in previous cases serve as a gui de and i s not determinative of the
amount to be awarded to the plaintiff .8 The circumstances of the present case
demonstrate the presence of malice when the Metro police arrested the plaintiffs. It is
evident on the undisputed evidence of the plaintiffs that when they were assaulted one
police officer inform ed another that they should concoct a story that the plaintiffs were
attempting to deprive them of their firearm s. The police were not investi gatin g any
offence nor did they suspect the plaintiff s of having committed an offence when the
plaintiffs were arbitrarily arrested . The police shot at the plaintiffs who were unarmed
and posing no danger to them . They victimis ed the p eople whom they are mandate d
to protect .
4 Minister of Police v Sa bisa and Another [2024] ZASCA 105.
5 Minister of Police v Khedama [2024] ZAKZPH C 23.
6 Minister of Safety and Security v Tyulu 2009 (5) SA 885 (SCA) para 26 .
7 Motladile v Minister of Police 2023 (2) SACR 274 (SCA) para 17.
8 Tyulu above fn 6 .
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[13] Having regard to the aforegoing I am of the view that an award of damages in
the sum of R231 000 is appropriate for Msizi Cele, made up as follows:
(a) past loss of earnings: R9 000;
(b) unlawful arrest and detention: R162 000; and
(c) assault and contumelia: R60 000.
[14] Welcome Hlongwa is to be awarded the amount of R240 , 200, made up as
follows:
(a) past loss of earnings: R18 200;
(b) unlawful arrest and detention: R162 000; and
(c) assault and contumelia: R60 000.
[15] Philani Lukhele’s position is distinguishable from the other plaintiffs . He was
shot at and sustain ed a severe injury to his knee . It is not in dispute that the injury still
affects him . He spent six days in hospital where he was detained and guarded by
police. For these reason s, an award of damages in the sum of R649 500 is appropriate ,
made up as follows:
(a) past loss of earnings: R19 500;
(b) unlawful arrest and detention: R230 000; and
(c) assault, contumelia and pain and suffering: R400 000.
Order
[16] In the premises the following order s are made:
1. Case number 3868/2014
(a) The defendant i s liable to pay to the plaintiff the amount of R231
000.
(b) Interest on the aforesaid amount at the rate of 15.5% per annum
from the date of judgment to the date of payment .
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(c) The defendant to pay the the plaintiff ’s costs on scale B.
2. Case number 3869/2014
(a) The defendant is liable to pay to the plaintiff the amount of R649
500.
(b) Interest on the aforesaid amount at the rate of 15.5% per annum
from the date of judgment to the date of payment.
(c) The defendant to pay the plaintiff’s costs on scale B.
3. Case number 3870/2014
(a) The defendant is liable to pay to the plaintiff the amount of
R240 , 200.
(b) Interest on the aforesaid amount at the rate of 15.5% per annum
from the date of judgment to the date of payment.
(c) The defendant to pay the plaintif f’s costs on scale B.
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Mathenjwa J
Date of hearing: 10 & 11 March 2025
Date of judgment: 27 March 2025
Appearances:
Plaintiffs’ counsel: Mr T P Nortjie
Instructed by: Pregen Govindasamy & Associates
Durban North
Defendant’s c ounsel : Ms M A Mbonane
Instructed by: Linda Mazibuko & Associates
Durban