THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable
Case no : 667/2024

In the matter between:


CYNTHIA NOBUHLE KHEDAMA APPELLANT

and

THE MINISTER OF POLICE RESPONDENT

Neutral citation: Khedama v The Minister of Police (667/2024) [2025] ZASCA
79 (5 June 2025)
Coram: HUGHES JA and DLODLO and STEYN AJJA
Heard: 2 May 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives via email, publication on the Supreme Court of Appeal
website , and release to SAFLII. The date and time for hand -down is deemed to
be 5 June 2025 at 11h00 .
Summary: Delict – unlawful arrest and detention – fair and reasonable damages
– quantum – fair and reasonable compensation for appellant’s unlawful arrest and
detention for a period of 10 days – factors considered for such determination –
appeal upheld.

2



ORDER

On appeal from: Kwazulu -Natal Division of the High C ourt, Pietermaritzburg
(Poyo Dlwati JP with Henriques J and Gounden AJ concurring , sitting as court of
appeal ):
1 The appeal is upheld with costs, such costs to include the costs consequent
upon the employment of two counsel.
2 The order of the full court is set aside and is replaced with the following:
‘(a) The appeal succeeds with costs.
(b) The order of the court a quo is set aside and substituted as follows:
1 The defendant is ordered to pay damages to the plaintiff in the sum
of R580 000 arising from her unlawful arrest and detention;
2 The defendant is ordered to pay interest on the aforesaid amount at the
prescribed rate per annum from the date of service of the summons to
date of payment; and
3 The defendant is ordered to pay the plaintiff’s taxed or agreed costs
of the action.’


JUDGMENT

Dlodlo AJA (Hughes JA and Steyn AJA concurring) :
[1] Before the trial court the appellant claimed damages against the
respondent , the Minister of Police for ‘ embarrassment and humiliation;
defamation of character; discomfort and pain and suffering ; deprivation of the
freedom of movement and wrongful detention and incarceration; psychological
shock and trauma; travel and subsistence expenses and disbursements incurred in
relation to [her] movements and sojourn to the Court in Phillipi East for all
hearings and app earances; all in the total sum of R1 000 000.00 ’. She was
3

successful before the trial court. Her claim for damages was, however, reduced
on appeal before the full court of the Kwazulu -Natal Division of the High Court,
Pietermaritzburg (the full court ). That court reduced the quantum granted by
Lopes J to the sum of R350 000.00 plus interest at the rate of 1 5,5% per annum
from the date of judgment to date of final payment. Aggrieved by the above
decision, the appellant appealed to this Court.

[2] The trial court refused leave to appeal, and this Court subsequently granted
leave to the full court of the Kwazulu -Natal Division . The appeal was eventually
dealt with by this Court; special leave being granted . The parties made
submissions, and the hearing lasted for almost the whole day. I am of the view
that the best approach to adopt in this appeal is to revisit the evidence tendered
by and on behalf of the appellant during the hearing before Lopes J. It is , in my
view, even more important to do so in view of the fact that the appeal deals almost
exclusively with the quantum of damages suffered by the appellant.

[3] The summary of the app ellant’s evidence is that, on 3 December 2011, she
was at King Shaka International Airport together with her boss and his wife. The y
were to leave on business trip to Turkey to source fashion items for a store, owned
and operated by the boss in Durban. Two uniform members of the police
approached her , and she was led to a room at the airport where she was
questioned. She was asked, inter alia, where she was going to, whether she had
any fraud matters pending, and who was accompanying her. She was asked
further about the nationality of her boss , and she told them that he was from
Cameroon. The officials demanded her suitcase in order to check whether she
was carrying drugs. She was told that they had to search her, because she was in
the company of a ‘kwerekwere’ .1 They were to be assisted by another female
police member in searching her. They told the appellant she was being arrested

1 ‘Kwerekwere ’ is a derogatory term used in South Africa to describe foreign nationals, especially those from
other African countries. It is widely regarded as a slur and reflects xenophobic attitudes. The term underscores the
perception of foreigners as outsiders or no t belonging within South African society.
4

and that h er suitcase was retrieved. In the airport charge office, her suitcase was
opened, and her belongings fell out of it and she was embarrassed, because her
clothing was scattered in full view of the public. She was searched by a female
official , but that search did not reveal any incrimina ting items. She was told to
phone her parents. She told the police her parents were deceased and asked that
they phone a police officer in Cape Town, who had once spoken to her about
averments relating to fraud by p erpetrators falsely using her identity number or
card. She explained this occurred in Cape Town after she had lost her identity
document. The loss was reported to the S outh African Police Service (SAPS) and
she had even opened a case with them and deposed to an affidavit in that regard.

[4] The appellant heard the Durban police members talking to the police
officer in Cape Town (a Captain Bernard). The latter confirmed that he knew who
she was and what she had said. She was then instructed to phone her boyfriend,
because she was being arrested and her suitcase needed to be removed. The
boyfriend subsequently arrived at the airport, together with the appellant’s friend.
They tried in vain to reason with the members of the police . The appellant was
asked about her boyfriend’s nationality, and she confirmed that he was not a
South African. The police then accused her of being involved with a
‘kwerekwere’.

[5] The appellant was then taken from the airport charge office to Tongaat
Police Station . She was transported in the back of the police van; handcuffed with
her hands behind her back for the duration of her removal from the airport to the
police van, where they were removed. According to the appellant, the attitude of
the members of the police was harsh and unacceptable in the way they handled
her. They did not wish to listen to any thing she said; she stated that this affected
her very negatively. In the Tongaat Police Station charge office, she was told to
remove her jewe llery, and this was placed into safe keeping. This was because
she was being detained at the police station.
5

[6] The appellant testified that she was placed in a small cell, where she was
kept on her own for the duration of her ordeal. According to her, the toilet in the
cell was very dirty with faeces and smelt terribly. There was a filthy gre y blanket
in the cell. She told the trial court that she placed the grey blanket onto the cement
bed and sat on it in her tracksuit. She had no blanket with which to cover herself,
and she sat there until daybreak , traumati sed and unable to sleep. No food was
offered to her. She told the trial court that she was very confused and uncertain
as to what would happen to her. She prayed because she knew that she had done
nothing unlawful. She developed an intense headache. She told the trial court
further that the next morning her fingerprints were taken. She asked member s of
the police attending to her , to ask her boyfriend to bring her a jacket and some
socks. Photographs of her were taken and she was returned to the same cell. She
explained that the cell was too small to accommodate another inmate. She
described how breakfast, bread and tea were ‘thrown ’ through a hole in the door.

[7] As a result of her distressed state, she was unable to eat or drink and had
no appetite. She told the trial court that the stench of the faeces ensured that she
had no appetite whatsoever. This was also because of both the shock of her arrest
and the dreadful surroundings in which she found herself. She testified that at
some stage a female police member brought her some headache tablets. The
appellant asked this police member to remind her boyfriend to bring her a jacket,
some socks and food from KFC. These were later brought, but she still could not
eat the food. She asked for some more water and headache tablets. When these
were given to her, s he did not take them but later asked for some more. She
testified that she was so distressed that she had formed the intention to accrue
enough tablets so that she eventually would be able to kill herself. She kept taking
the tablet s but could not count how many these were. She explained that she was
unable to sl eep although she used her jacket to cover herself. The appellant was
kept at Tongaat Police Station from 3 December 2011 until Friday , 9 December
2011. She appeared in the Verulam Magistrate’s court on 5 December 2011. It is
6

here where she was told that she would be transferred to Cape Town. She told the
trial court that she was given no opportunity whatsoever to apply for bail. The
magistrate simply informed her that she would be transported to Cape Town and
was then taken down to the cells.

[8] During her incarceration at Tongaat Police Station , the appellant was at no
stage offered any opportunity to exercise, nor the ability to bathe or wash and
clean herself. On Friday, 9 December 2011, the police members from Cape Town
arrived, removed her from her cell, handcuffed and informed her who they were
and that they were to transport her to Cape Town. There was one male and one
female police member. According to the appellant , their attitude was that if she
had not done anything wrong, then her ordeal would soon be over. During the
journey they stop ped at a garage and asked her if she wanted something to eat.
When she declined, a female member insisted and bought her ‘amahewu’ (a soft
porridge) and water. She testified that although she drank the water because of
her condition, she could not eat . Explaining further , she mentioned that she tried
to eat , but she could not stomach food. She testified that she tried to sleep in the
police vehicle as much as she could.

[9] When they arrived at Mthatha in the Eastern Cape, she was detained in a
police cell overnight and the police members told her that they would fetch her
the next day. She explained that the weather there was very windy and rainy and
that the cell she was later place d in had a leaking roof and a door open to the
elements. Wind and rain could enter into the cell. She explained that a blanket
was hanging down from the roof and it was similar to the one she had been
provided with in Tongaat Police Station , that is, it was filthy and in such a
condition that she could not even use as a form of cushion on the cement bed.

[10] The appellant spent the whole night sitting and crying. She explained that
the next morning, the female police member asked her if anything had happened
7

to her. The appellant added that she was asked this, because it was clear that she
was in a distressed state. She told the police member that she had not been able
to sleep because of mosquitos, wind, rain, cold etc . She further explained that she
was not offered anything to eat because they had arrived at the police station late
in the evening. The journey to Cape Town continued and they stopped in Mon ti
police station in the Eastern Cape (this was approximately 240 km away ) from
Mthatha. They stopped at one or more garages on the way. Again, the appellant
declined any food, but she drank water. On that night she was placed into a police
cell in Monti Police Station , together with other female detainees . Although she
had her jacket with her, she was obliged to share a blanket with another female
prisoner, a complete stranger to her.

[11] The next morning, the police members arrived early to fetch her, and they
continued their journey to Cape Town. Along the way she was asked by the
female police member whether she wanted to freshen up and was given a face
cloth, toothbrush and toothpaste and allowed to was h herself in a petrol station
washroom. In the nine days which had elapsed, she had not been able to change
any of her clothing and had not once been given the opportunity to ‘freshen up’
or bathe. Thus, the extent of her being able to ‘freshen up’ was that she was once
given the opportunity to shower or bathe. She was enabled to brush her teeth,
wash her face and her under -arms. This was all done under the eye of the female
police member.

[12] They arrived in Cape Town on 11 December 2011. A female police officer
took her fingerprints in order to verify whether she was the person of interest
being sought. The fingerprints showed that she was not the person who was
sought. She was taken to a cell with other females , and she at last felt more
comfortable, because of the presence of females who were leading the prisoners
in prayer . She was obliged to sleep next to an elderly lady and share a length of
sponge with her. This person was also a complete stranger to her.
8

[13] On the next morning, the appellant was given a breakfast of soft porridge,
bread and tea, and thereafter taken to court. She did not eat the food. She
explained her position to the Philippi magistrate and requested bail , stating that
she cared for her brother’s child, who was ten years old , as well as a child of 15
years of age . The children had been left at her neighbour’s home. She was
concerned that her brothers did not know where she was. The magistrate granted
her bail of R1000 , but the appellant indic ated that she had no money. Bail was
then set at R500. She was eventually released on bail on Monday, 12 December
2011 and instructed to return in March 2012. A friend in Cape Town contacted
via the female police officer took her to her residence. She was then able properly
to clean and refresh herself. She obtained funds from her boyfriend so that she
could fly back to Durban.

[14] The appellant had told the magistrate that she made an affidavit concerning
her lost identity document and the members of the police then wanted another set
of fingerprints to ascertain whether she was the person she claimed she was. It
was only in March 2012 that she returned to Cape Town. After again relating her
version of events, the magistrate compared her fingerprints with those of the
person sought by the SAPS. The S APS members reali sed that she was not the
person being sought and told her that the matter was finali sed. She recovered the
bail money , purchased an airplane ticket and was able to return to Durban and to
her employment.

[15] At her place of employment, she encountered suspicion and mistrust. After
a period of difficulty, her boss eventually gave her a second chance to travel with
him overseas to purchase fashion items. This time too when she arrived at Durban
International Airport, she was again confron ted by the same two members of the
police only to be told that they were ‘joking’ and had only wanted to establish
what happened after her first arrest. She explained again the whole ordeal. Her
relationship with her boss was mat erially affected. The boss instructed her and
9

demanded that she pay for the first airplane ticket which was wasted. The attitude
of the boss rubbed off on her fellow workers and they too did not trust her. She
even lost the status of being a sales manager. It was because of her experience
and ability that she was nonetheless asked to go on the second trip by the boss.
Her relationship with the boss was completely destroyed as he still mistrusted her .
However, her boyfriend ‘stood by her’. Cross -examination of the appellant only
served to strengthen her case and it enabled her to even remember further details
of her experience – the manner she was ill -treated by the police members , the
horrific conditions she was exposed to upon detention and her eventual transport
by the police members to Cape Town.

[16] I have deliberately chosen to briefly summari se the evidence by the
appellant and not of the respondent ’s witnesses. It suffices to mention that one
sergeant Pather also testified for the respondent. The trial judge was hardly
impressed by sergeant Pather’s evidence. This much is clear when the judge
stated the following in the judgment :
‘I unhesitatingly accept her version in preference to his, because she was the person who
suffered a traumatic experience , and is more likely to have remembered it in greater detail. Part
of Sergeant Pather’s confusion arises from the fact that various police officers dealt with [the
appellant] at the airport, and matters may have occurred when he was not present , or subsequent
to the duration of the time he was with [the appellant] …’

[17] The trial Judge dealt with the evidence presented very well. I accept that
this part of the case presents no challenge. The only reason I decided to
summari se the appellant’s evidence is to suffic iently inform the reader how
horrific the suffering was to which the appellant was subjected. The trial judge
decided on the liability aspect and went on to deal with the qua ntification of
damages suffered by the appellant. He was alive to the fact that there could have
been another defendant.

10

[18] Dealing with t he foregoing aspect , the trial judge mentions in his judgment
that the refusal to grant her an opportunity to apply for bail may be something
which concerns the Minister of Justice rather than the Minister of Police and the
fact that no malicious conduct was demonstrated on the part of the magistrate , the
police officials could have dealt with this aspect in the first instance and they
referred to Minister of Safety and Security and Others v Van der Walt and
Another2 and De Klerk v Minister of Police .3 No evidence was given to show that
the appellant was any threat to society in general, and she was not considered
dangerous or violent. Indeed, there was no explanation given as to why it was
necessary to continue to detain the appellant at Tongaat Police Station. The trial
court was not told as to why a female police officer could not have accompanied
her on a flight to Cape Town immediately after her appearance in court in Tongaat
on the Monday. There are indeed more questions than answers in this case.

[19] Everyone has the constitutional right not to be treated in a cruel, inhuman
or degrading way and the right to bodily and psychological integrity.4
Constitutionally, an arrested person has the right ‘to conditions of detention that
are consistent with human dignity, including at least exercise and the provision,
at the State expense, of adequate accommodation, nutrition, reading material and
medical treatment’.5 The purpose of pre -trial imprisonment remains to make
certain that those accused of crimes and some transgressions attend court which

2 Minister of Safety and Security and Others v Van der Walt and Another [2014] ZASCA 174; 2015 (2) SACR 1
(SCA) paras 20 – 25.
3 De Klerk v Minister of Police [2019] ZACC 32 ; 2019 (12) BCLR 1425 (CC); 2020 (1) SACR 1 (CC); 2021 (4)
SA 585 (CC) paras 104 – 113.
4 Section 12 of the Constitution provides: ‘ Freedom and security of the person
(1) Everyone has the right to freedom and security of the person, which includes the right -
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.
(2) Everyone has the right to bodily and psychological integrity, which includes the right -
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without their informed consent.’
5 Ibid s 35(2) (e). See The Bill of Rights, chapter two of the Constitution and s 35 thereof.
11

has a duty to make a determination if they are guilty of those crimes or not. It is
not necessary to document the suffering experienced by the appellant any further.
The trial court fully and properly documented this. She did not only lose her
seniority status at her employment ; she suffered damage to her reputation as a
result of being arrested and detained in the manner it was done. All this played
out in the presence of her boss. The latter cannot be blamed for completely
changing his attitude towards th e appellant. He became suspicious of her and
mistrusted her. The boss must have thought that the appellant was indeed the type
of personality displayed by the police. Several constitutional rights belonging to
the appellant were most certainly taken away from her. Instead of enjoying
protection, she suffered in a cruel manner at the hands of the police during arrest
and subsequent thereto. The appalling conditions she experienced as a detainee
only served to exacerbate the bad treatment meted out to her by the police
members .

[20] The appeal is of course against the amount of damages awarded , first, by
the trial court and subsequently by the full court of the relevant division. A Court
of Appeal will only interfere with the discretion of a trial judge in its
determination of an appropriate award if the award is ‘ palpably excessive or
clearly disproportionate in the circumstances of the case ’. See Salzman v
Holmes6; Sandler v Wholesale Coal Suppliers Ltd7 and Bes v Road Accident
Fund8. Of course, the Appeal Court can also interfere if it is shown that damages
were grossly extravagant or unreasonable .9 In Minister of Safety and Security v
Tyulu ,10(Tyulu) Bosielo AJA (as he then was) held as follows:
‘In the assessment 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 him or her some much -
needed solatium for his or her injured feelings. It is therefore crucial that serious attempts be

6 Salzmann v Holmes 1914 AD 471 at 4 70.
7 Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 200.
8 Bee v Road Accident Fund [2018] Z ASCA 52; 2018 (4) SA 366 (SCA ) para 47.
9 See Black and Others v Joseph 1931 AD 132 at 150.
10 Minister of Safety and Security v Tyulu [2009] ZASCA 55; 2009 (5) SA 85 (SCA ); 2009 (2) SACR 282 (SCA);
[2009] 4 All SA 38 (SCA) para 26 .
12

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.’

[21] It was submitted on behalf of the appellant that the award granted by the
full court was so disproportional to comparative case law and disparate to the
award granted by Lopes J that it warrants an interference by this Court. As pointed
out earlier, the ap pellant’s constitutional right was infringed and that alone
entitled her to approach the Court for redress. That much is provided for in s 38
of the Constitution. In terms of that section, anyone listed the rein possesses a right
to approach a competen t court and allege that such right has been infringed or
even threatened. The court may grant appropriate relief and that include s a
declaration of rights. There is no doubt that the appellant’s claim which includes
the violation of such rights (those the appellant suffered) the appropriate relief
sought is the payment of a fair and reasonable sum of money to just ly represent
such compensation.

[22] In Ramaku lukusha v Commander, Venda National Force11 the following
observation appears:
‘When researching the case law on the quantum of damages, I took note some surprise of the
comparatively low and sometimes almost insignificant awards made in southern African courts
for infringements of personal safety, dignity, honour, self -esteem and reputation. It is my
respectful opinion that court s are charged with the task, nay the duty , of upholding the liberty,
safety and dignity of the individual, especially in group -orientated societies where there
appears to be an almost imperceptible but inexor able decline in individual standards and
values .’
The submission by appellant’s counsel is that the full court failed to recogni se the
historical negative financial values inherent in past awards that flowed through
into our constitutional era. The result is that the full court themselves by using

11 Ramakulu kusha v Commander, Venda National Force 1989 (2) SA 813 (V) at 847 B -C.
13

past cases with low awards misdirected themselves and made the error in making
findings which are disproportional to the trial judge’s award. Notably in Tyulu
this Court warned thus ‘ …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 and the seriousness with which any arbitrary deprivation of personal
liberty is viewed in our law.’

[23] The Constitutional Court in Mahlangu and Another v Minister of
Police12(Mahlangu) where police officers tortured the first plaintiff to make a
confession confirmed the decision of this Court in Tyulu . In Mahlangu he and his
supposed co -perpetrator were placed in ‘solitary confinement for two months to
protect them from attack and taunting by fellow detainees who believed they had
killed their relatives .’ They were detained for eight months and ten days and were
awarded R550 000 and R500 000 respectively by the Constitutional Court. That
decision was confirmed in Minister of Police v Nontsele .13

[24] Although the period of detention in Mahlangu was significantly longer –
amounting to eight months and ten days – compared to the ten days of detention
in the present case, the award in this judgment underscores that the assessment of
damages is not based solely on the duration of detention.14 Rather, it gives weight
to the overall treatment of the detainee. While the length of detention is
undoubtedly a relevant consideration as stated in Rahim v Minister of Home
Affairs15 (Rahim) , it is not the sole determinant of the quantum of damages. This

12 Mahlangu and Another v Minister of Police [2021] ZACC 10 ; 2021 (7) BCLR (CC); 2021 (2) SACR 595 (CC) .
13 Minister of Police v Nontsele [2024] ZASCA 137 ; [2025] 1 All SA 44 (SCA) para 29 .
14 See Mahlangu para 52 and 53.
15 Rahim v Minister of Home Affairs [2015] ZASCA 92; 2015 (4) SA 433 (SCA) (Rahim) .
14

approach, together with the impact of inflation,16 ought to be taken into account
alongside the factors set out in Rahim17 and Woji v Minister of Home Affairs .18

[25] In Lumba (WL) vs Secretary of State for the Home Department ,19 the
Supreme Court found that both individuals were subjected to false imprisonment
because the Secretary of State applied an unpublished and unlawful policy when
deciding to detain them pending deportation . I accept that the appellant was
subjected to cruel and degrading treatment. The full court rather drastically
reduced the damages awarded by the trial court. In my view, regard being had to
what treatment and conditions prevalent in almost all places where she was
detained, she rightfully must have thought that it would be better for her to rather
die. The cruelty displayed by the police towards her leaves one with no room to
imagine that the police thought that they were still dealing with a fellow human
being. The treatment meted out to her was so harsh that one would perhaps be
justified to think this was an effort to enable the appellant to be so frustrated as
to rather take her life. She testified she had decided to drink all the tablets she was
collecting in order to rather die. It was even forgotten that she belonged to the
human race too. Most certainly the award by the full court must be revisited and
replaced with an award which this Court considers to be just and fair , regard being
had to the circumstances attendant to this particular matter.

[26] When it comes to factual findings and evaluation of evidence, th is Court
will invariably be hesitant to interfere with the factual findings and evaluation of

16 Protea Assurance v Lamb 1971 (1) SA 530 (A) at 535G – 536B where Potgieter JA said: ‘The above quoted
passages from decisions of this Court indicate that, to the limited extent and subject to the qualifications therein
set forth, the trial Court or the Court of Appeal, as the case may be, may pay regard to comparable cases. It shou ld
be emphasised, however, that this process of comparison does not take the form of a meticulous examination of
awards made in other cases in order to fix the amount of compensation; nor should the process be allowed so to
dominate the enquiry as to become a fetter upon the Court's general discretion in such matters. Comparable cases,
when available, should rather be used to afford some guidance, in a general way, towa rds assisting the Court in
arriving at an award which is not substantially out of general accord with previous awards in broadly similar cases,
regard being had to all the factors which are considered to be relevant in the assessment of general damages. ’
17 Rahi m para 27.
18 Woji v Minister of Police 2015 (1) SACR 409 (SCA); [2015] 1 All SA 68 (SCA).
19 Lumba (WL) vs Secretary of State for the Home Department [2011] UKSC 12, (United Kingdom) .
15

the evidence by the trial court.20 Similarly in cases involving deprivation of
liberty, the quantum of damages which is to be awarded, is always in the
discretion of the trial court. Importantly, that discretion must be exercised fairly
and in accordance with what is good and equitable considering the merits of the
case itself.21 In this regard too , this Court should be slow to interfere unless
specific reasons exist to do so. Yes, regard may indeed be had to comparable
cases and awards made in those cases. But those cases ‘are nothing more than a
useful guide to what courts have considered to be appropriate on the facts before
them . They have no higher value than that .’22

[27] On the question whether the appellant is entitled to interest from the date
of the summons in terms of the Prescribed Rate of Interest Act 55 of 197 5 (the
Act), one – in my view – need go no further than having regard to s 2A (2)(a) and
s 2A(5) of the Act. Th e section s state that:
‘(2)(a) ……
and …
(5) Notwithstanding the provisions of this Act but subject to any other law or an agreement
between the parties, a court of law, or an arbitrator or an arbitration tribunal may make such
order as appears just in respect of the payment of interest on an unliquidated debt, the rate at
which interest shall accrue and the date from which interest shall run.’
The default position is that a Court is obliged to grant interest from the date of
service of the summons or demand which is earlier , s 2A being peremptory . In
Drake Flemmer & Orsmond Inc and Another v Gajjar NO ,23 Rogers AJA stated
‘[t]he legislature exercised that policy choice by inserting s 2A into the Interest
Act with effect from 11 April 1977 . That section provides that interest at the
prescribe d rate runs on an unliquidated debt from the date on which payment was
claimed by service of a demand or summons, whichever is the earlier, unless the
court in the interest of justice determines a different date or rate …’ The provisions

20 Rex v Dhlumayo and Another 1948 (2) SA 677 (A).
21 See Neethling v Du Preez ; Neethling v Weekly Mail 1995 (1) SA 292 (A).
22 Masiteng v Minister of Police (944/2023) [2024] ZASCA 165 (04 December 2024) para 14.
23 Drake Flemmer & Orsmond Inc and Another v Gajjar NO 2018 (3) SA 369 (SCA) para [63].
16
of s 2A(2 )(a) are clear that subject to any other agreement between the parties and
the provisions of the National Credit Act, the interest contemplated in subsec (I)
shall run from the date on which payment of the debt is claimed by the service on
the debtor of a demand or summons whichever date is the earlier.
[28] Accordingly , I am of the view that the amount of damages awarded by the
full court must be revisited and set aside in order to be replaced with what is a
fair amount. The fair amount of damages is the sum ofR580 000.
[29] The following order is therefore made:
1 The appeal is upheld with costs, such costs to include the costs consequent
upon the employment of two counsel.
2 The order of the full court is set aside and is replaced with the following:
'(a) The appeal succeeds with costs.
(b) The order of the court a quo is set aside and substituted as follows:
1 The defendant is ordered to pay damages to the plaintiff in the sum
of R580 000 arising from her unlawful arrest and detention ;
2 The defendant is ordered to pay interest on the aforesaid amount at the
prescribed rate per annum from the date of service of the summons to
date of payment; and
3 The defendant is ordered to pay the plaintiffs taxed or agreed costs
of the action.'
DVDLODLO
ACTING JUDGE OF APPEAL
17

Appearances

For the appellant : T N A boobaker SC and M Maharaj
Instructed by : Abdul Shaikjee Attorneys In c, Durban
Honey Attorneys , Bloemfontein

For the respondent : M Govindasamy SC and M E Mbambo
Instructed by: State Attorney , Durban
State Attorney , Bloemfontein .