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Moleleki AJ
[1] The Plaintiff’s claim against the Defendant is for damages arising from his
unlawful arrest and detention in the amount of R1 000 000 ( one million rand ) and for
unlawful assault in the amount of R1 000 000 ( one million rand ). The Defendant is the
Minister of Police, who is sued in his capacity as the Minister responsible for the
conduct of the members of the South African Police Service (the SAPS) . The Plaintiff’s
claim against the Defendant was brought on the basis that members of the SAPS were
acting within the course and scope of their employment with the Defendant.
[2] The matter for determination is whether the Defendant is liable for the unlawful
assault of the Plaintiff and for the quantum of damages on the unlawful arrest,
detention and assault. Initially, the Defendant had resisted the Plaintiff’s claim for
unlawful arrest, detention and assault. On the day of the hearing of the matter the
Defendant conceded liability for unlawful arrest and detention.
[3] On 28 January 2023 at approximately 14h00 at or near Newscom Trust,
Mpumalanga, whilst he was travelling in his motor vehicle with his wife and daughter,
the Plaintiff was stopped by members of the SAPS from Kabokweni Police Station, on
allegations that he had committed robbery and attempted murder.
[4] Only the Plaintiff testified during the hearing of the matter. He testified that the
police officers blocked his motor vehicle. He was forced to alight from his motor
vehicle, pushed to the ground and was assaulted several times on the face with open
hands by four police officers. Whilst on the ground, he was trampled upon with booted
feet. The Plaintiff was taken to the motor vehicle where a firearm had been placed by
one of the police officers. He was instructed to touch the firearm with his hands , but
he refused. The police officers continued to assault him with open hands for refusing
to touch the firearm. Two other police officers arrived at the scene.
[5] The police officers placed the Plaintiff inside the police vehicle, leaving the
Plaintiff’ s wife and daughter behind. They drove with the Plaintiff to his house where
he was instructed to produce a firearm. He informed the police officers that there was
no firearm at his home. The police officers assaulted him once again. He was pushed
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to the ground and his hands were cuffed to the back together with his feet. His face
was covered with a plastic bag. When the plastic bag was ultimately removed, water
was poured into one of his ears and he was slapped several times with an open hand
on the ear. Thereafter, he was taken to the police cells at Pienaar police station. The
following day, other police officers assaulted him whilst he was in the cells, alleging
that he broke into the house of one of the police officers and stole a firearm. One o f
them kicked him on the back and stomach. His fingerprints were taken.
[6] According to the Plaintiff, he sustained the following injuries : lacerations on his
hands caused by the handcuffs, a swollen right ear from being slapped after water
was poured therein , and pains on his body. The Plaintiff was taken to court the Monday
following his arrest. However, he was released from the cells without having appeared
before a Magistrate. The following day , on the Tuesday, he went to Temba hospital
where he was examined by a doctor and medication was d ispense d for him.
[7] The Plaintiff stated that it humiliated him to have been assaulted in the presence
of his wife and 15 -year-old daughter. The assault took place in public , and members
of the community had gathered and took pictures and videos of the incident. Those
pictures were posted on Facebook, thus injuring his dignity.
[8] On the conditions of the cells, he testified that, whilst in custody, he had to take
a cold shower , and he did not have toiletries. The cells were filthy. The sponge and
blankets that were provided for him to sleep on were not clean. He was detained with
five other inmates and there was no privacy when one had to use ablution facilities as
there is no p artitioning. Although he was provided with meals, they were not of the
same standard that he was used to at home, they were not sufficient and only two
meals were served per day. He on the other hand is used to having three meals per
day.
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Assault
[9] Assault is recognized in the law of delict as actio iniuriarum . It is defined as an
infringement of the right to bodily integrity (physical and psychological).1 In Minister of
Justice v Hofmeyer2 the court stated:
“One of an individual’s absolute rights of personality is his right to bodily integrity. The
interest concerned is sometimes described as being one in corpus , but it has several
facets. It embraces not merely the right of protection against direct or indirect physical
aggression or the right against false imprisonment. It comprehends also a mental
element.”
[10] The definition of assault is the same under both civil law and criminal law. In
criminal law, assault is defined as the offence consisting of unlawful ly and intentional ly
applying force, directly or indirectly, to the person of another; or inspiring a belief in
another person that force is immediately to be applied to them.3
[11] In its plea, the Defendant denied all the material facts alleged in the particulars
of claim without setting out the material facts upon which the denial was based.
Instead, the Defendant merely called upon the Plaintiff to prove his case.
Onus
[12] In delictual claims based on assault the onus of proving that the assault
occurred rests on the claimant. Once the commission of assault is proved at the trial,
the Defendant is saddled with a duty to satisfy the court that the assault upon the
Plaintiff was justified .4
[13] The court must determine whether the Plaintiff was assaulted by police officers
during his arrest. As stated, the injuries alleged to have been suffered by the Plaintiff
in the hands of the police were denied by the Defendant and the Plaintiff was put to
the pr oof thereof.
1 JC Van der Walt and JR Midgley Principles of Delict 3 ed at 111 para 78.
2 Minister of Justice v Hofmeyer 1993 (3) SA 131 (A) at 145 H-I.
3 CR Snyman Criminal Law 5 ed at 455 .
4 Mabaso v Felix 1981 (3) SA 865 (A) at 874.
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[14] The Plaintiff ’ in paragraph 7 of his Particulars of Claim pleaded his assault claim
in the following terms:
“On or about the 28th day of January 2023 subsequent to his arrest, the plaintiff was
further unlawfully assaulted and humiliated by members of the South African Police
Services while he was handcuffed. ”
[15] The Plaintiff’s claim was clearly pleaded in a thin manner , and he made basic
allegations with regards the assault.
[16] The Plaintiff was a single witness as to the alleged assault. When asked about
the injuries he had sustained, he mentioned lacerations on his hands caused by the
handcuffs , swollen right ear and pains in the body. His description of the injuries he
sustained is at odds with the evidence he gave that he was trampled on the face with
booted feet. Based on the evidence he gave, it would have been expected that he
would have ha d injuries on his face. It is improbable that he would not have suffered
serious inju ries to the face. In as much as it may be accepted that he was assaulted,
the difficulty is with regards to the severity of the assault.
[17] The Plaintiff’s evidence was riddled with exaggerations. I cannot find that the
assault was grievous to the extent testified to by the Plaintiff. It is inexplicable why he
would omit to mention any injuries to the face , if there were any. In view of these
inconsistencies, it was imperative for the Plaintiff to have produced the medical
evidence in order to bolster his version. I am alive to the fact that direct evidence of
the assault was led. However, without the medica l report, the court is unable to asse ss
the seriousness of the assault, and in its absence, the Plaintiff cannot benefit from it .
Quantum
[18] The next issue for determination is what constitutes a just and equitable
compensation to be awarded to the Plaintiff.
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[19] The general approach regarding the amount of damages for unlawful arrest and
detention was set out by Bosielo AJ A (as he then was) in Minister of Safety and
Security v Tyulu ,5 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 made to ensure that the damages awarded are commensurate
with the injury inflicted . … 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. ”
[20] It must be noted that the facts of each case are decisive in arriving at the
appropriate amount of damages and that a comparison of awards made in previous
cases must take proper account of this approach.6 There are dangers in relying
excessively on earlier awards. They should be used only as a useful guide and should
not be followed slavishly.
[21] In Minister of Safety and Security v Seymour ,7 Nugent JA remarked that :
“Money can never be more than a crude solatium for the deprivation of what in truth
can never be restored and there is no empirical measure for the loss . … It needs also
to be kept in mind when making such awards that there are many legitimate calls upon
the public purse to ensure that other rights that are no less important also receive
protection .”
[22] In the present matter, it is common cause that the Plaintiff was arrested and
detained for two days. He was provided with meals, however, he stated that they were
not enough. Although he was given a sponge and blankets to sleep on, they were
dirty. There was no privacy in the cell which he had to share with five other detainees.
He was released from the cells without having appeared before a Magistrate.
5 Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA) para 26.
6 Visser and Potgieter Law of damages 2 ed (2003) at 472-474.
7 Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) ; [2007] 1 All SA 558 (SCA) par a
20.
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[23] In Mofokeng and Another v Minister of Police ,8 on appeal, the plaintiffs were
awarded R90 000.00 each for being detained for two days. In Lamula and Others v
Minister of Police ,9 the appellants in that case were awarded amounts of R100 000.00
to R115 000.00 for being detained for five days.
[24] It is an established principle of our law that public policy is informed by the
Constitution. The Constitutional Court in Mahlangu and Another v Minister of Police10
stated:
“Our Constitution values freedom, and understandably so when regard is had to how,
before the dawn of democracy, freedom for the majority of our people was close to
non-existence. The primacy of ‘human dignity, the achievement of equality and the
advancement of human rights and freedoms ’ is recognised in the founding values
contained in s 1 of the Constitution… These constitutional provisions , and the
protection in s 12 of the right of freedom and security of the person , are at the heart of
public -policy consideration .”
[25] In Mathunjwa v Minister of Police11 the court awarded an amount of R90 000
for the unlawful arrest and detention for five days in circumstances where conditions
on the first night can be termed to be inhuman and unacceptable and he was denied
food. The Appellant slept on the floor and was only provided with a mattress on his
second day of detention. He spent the whol e night sitting having been given no
blankest and mattress.
[26] The period of detention and the conditions of the cells in which the Plaintiff was
kept are considered and are distinguishable from those in Mathunjwa . In light of all the
circumstances, together with awards in related matter s, I am of the view that an award
of R80 000 is just and equitable.
[27] On the assault, the Plaintiff suffered lacerations to his hands, a swollen ear and
pains on his body. Although I have concluded that the Plaintiff’s physical injuries were
8 Mofokeng and Another v Minister of Police [2015 ] ZAGPJH C 30.
9 Lamula and Others v Minister of Police [2013 ] ZAGPJHC 130 .
10 Mahlangu and Another v Minister of Police 2021 (2) SACR 595 (CC).
11 Mathunjwa v Minister of Police [2023] ZAGPJHC 12.
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not of a serious nature, I am cognisant of the fact that, any form of invasion of a
person’s physical integrity no matter how trivial, is indefensible in any civilised society
particularly by police officers who are enjoined to protect individuals against such
invasions of their physical integrity .12
[28] In E.L v Minister of Police and Another13 the court awarded an amount of
R80 000 for assault by the police officers which resulted in a fractured 9th rib and hip
injury.
[29] In Mnyamezeli and Another v Mfiki14 an amount of R20 000 was awarded for
unlawful and wrongful assault, the court having found that the injuries were not of a
serious nature. the court was alive to the fact that any form of invasion of a person’s
physical integrity no matter how minor is in defensible and unacceptable in any civilised
society, particularly by persons who are enjoined to protect individuals against such
invasions of their physical integrity. In Gcumisa and Others v Minister of Police15 an
award of R25 000 was awarded for assault. In Sofika v Minister of Police16 the injuries
were found not to be severe and were not supported by any form of medical evidence
as the J88 furnished could not be relied upon. The court awarded an amount of
R23 000.
[30] In Jombile v Minister of Police17 the court found that the plaintiff did not present
any evidence that physical injuries sustained were of a permanent nature. The court
awarded an amount of R50 000 for assault . There were several discrepancies
between the plaintiff’s evidence and his pleaded case. The J88, medical report testified
to the soft -tissue injuries. The plaintiff testified that he was attending sessions with a
psychiatrist since he was not functioning well. However, no evidence was presented
from the psychiatrist as to the prognosis, the duration of the treatment or whether
medicine had been prescribed.
12 Peterson v Minister of safety and Security [2009] ZAECGHC 65.
13 E.L v Minister of Police [2025] ZAGPJHC 148.
14 Mnyamezeli and Another v Mfiki [2010] JOL 26204 (ECM).
15 Gcumisa and Others v Minister of Police [2020] JOL 48615 (KZP).
16 Sofika v Minister of Police [2018] JOL 40138 (ECM).
17 Jombile v Minister of Police [2024] JDR 1126 (GP).
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Appearances
For the Plaintiff : R M Segage
M.P Maseko Attorneys Inc.
15 Paul Kruger Street
2nd Floor Office 205
Belmont Villa Building
Mbombela
For the Defendant : Ms N G Mbuyane
State Attorney, Mbombela
52 Samora Machel Drive
R104 West Acres
3rd Floor, West Wing
Mpumalanga High Court Building
Mbombela
Matter heard on: 22 April 2025
Judgment delivered on: 18 June 2025