Introduction
[1] The plaintiff instituted a civil action against the defendant for the sum of R 6000
000.00 for unlawful arrest , detention and malicious prosecution. The matter is proceeding in
an unopposed court after the defence of the defendant was struck out subsequent to the
defendant’s failure to comply with an order of court directing the defendants to discovery
affidavit as ordered by the court.
Background
[2] The plaintiff was arrested on 29 April 2018 and appeared in court on 2 May 2018. He
was kept at Johannesburg Central Police station prior to his first appearance and then taken
to Johannesburg Correctional Services after the first appearance . He w as kept in custody and
the charges were withdrawn on 23 October 2018.
[3] The plaintiff commenced civil proceedings a gainst the defendant s and issued a le tter
of demand in terms of section 3 of the Institution of Civil of Proceedings against an Organ
of State Act1. The defen dants did not react positively to t he letter of demand and plaintiff
issued the summons on 23 February 2021 . The summons was accordingly served on the
defendants who in turn entered appearance to defence on 19 May 2021. The defendants then
served a special plea and also pleaded over on 22 July 2021.
[4] Plaintiff’s attorneys subsequently served a notice in terms of rule 35 of the Uniform
Rules of Court requiring the defendants to serve a discovery affidavit . The defendants failed
to serve a discovery affidavit s and plaintiff launched an application to compe l which was
granted . The def endant failed to heed the order compelling discovery and this was followed
by an application to struck off the defen dants . The order to struck out the defence was granted
on3 October 2024 .
[5] The plaintiff enrolled the application for default judgment which served before me
on 27 February 2025.
1 40 of 2002.
Plaintiff’s evidence
Merits
[6] The plaintiff testified under oath that he was previously in the employ of ADT . His
work was to wash buses . He was dismissed for unauthorised leave which h e took to take care
of his sick aunt. On th e day of his arrest, he went back to the ADT ’s offices to collect items
he left before the termination of employment. Those items were his boots, work suit and hand
gloves. He met up and started conversing with the security offic ial at the gate who was known
to him and considers him as his former colleague .
[7] Whilst seated at the gate, the said former colleague activated the alarm and the
members of ADT came and detained him. The members of SAPS were called and he was
then arrested. He was not informed of the charge /s or complaint a gainst him. He was given a
form by members of SAPS which he signed despite that it was not explained to him. He later
learned from some documents shown to him that t he accusation against him was o f business
burglary, theft of a laptop and theft of the amount of R2500.00 .
[8] He was in the process of detention assaulted by members of SAPS and was taken to
hospital where he was stitched. He was then taken into the police cells which did not have
water supply and as such he could not even bath . The cell was small and had a toilet inside.
The experience was unpalatable. He was also given a sponge to sleep on - with one blanket
and b oth were dirty and had a bad smell . His stay in the cell was unpalatable. He had to take
his tablets and swallow them without water.
[9] He was taken to court the following day and the matter was postponed to the
following day since the docket was delivered late . The matter was then postponed on t he next
day for seven days to enable the investigat ing officer to verify his residential address .
Strangely , to him, the invest igating offic er came back and indicated that the premises at the
address given was vandali sed and no one was no one staying there. As such bail application
was refused.
[10] The charges were ultimately withdrawn as there was no sufficient evidence for a
successful prosecution . The arrest ma de him feel humiliated and undignified . His own
children were also distraught by his incarceration .
[11] Counsel for the plaintiff submitted that there are several infractions committed by the
members of SAPS. They were required in terms of section 39 (2) of the Criminal Procedure
Act (“CPA ”)2 to inform the plaintiff of the reas ons for his arrest immediately after effecting
arrest and further provide him with a copy of the warrant . The counsel referred further to the
provisions of section s 12(1) and 35 of the Consti tution which also en joins the defendants to
conduct themselves fairly and to respect the rights accorded to a detained person.
[12] It is trite , counsel further argued , that an arrest without a warrant is prima facie
unlawful and once the plaintiff proved arrest the first defendant bears the onus to prove that
the arrest and detention was lawful. In this instance the defence has been struck out and it
follows that the court should return a finding that the arrest and detention were unlawful.
[13] In respect of th e second defendant the counsel contended that the plaintiff has all eged
and proved that law was set in motion without a reasonable and probable cause. That the
defenda nt acted with mal ice and the prosecution ultimately failed. In casu , the rationale for
decision to prosecute i s unknown to the plaintiff and defence should have established a
probable cause after perusing the docket. In view of the fact that the defence was struck out
the only material availe d to the Court is the version of the plaintiff in terms of which it is
submitted that there is no evidence which linked the plaintiff to the commission of the alleged
crime to justify the prosecution. Therefore , the only conclusion , it is argued, is that the second
defendant perpetrated malicious prosecution against the plaintiff .
[14] The counsel for the plaintiff submitted that a proper case has been mounted and in
view of the fact that there is no other version before the court the Court should return an order
in favour of the plaintiff in respect of the merits.
2 Act 51 of 1977.
Quantum
[15] With regard to the quantum the plaintiff has claimed damages for the invasion of
privacy, infringement of hi s dignity and bodily integrity in the sum of R6 000 000.00 . The
counsel referred to the following comparable cases ; Phayi3 where the court awarded da mages
in the amount of R100 000.00 for two days ’ detention ; R800 000.00 for the continued
detention for 30 days after the first appear ance in court and the amount of R300 000.00 for
the malicious prosecution. Shabalala4 where the court awarded R900 000.00 for unlawful
arrest and detention and R2 100 000.00 for wrongful and unlawful prosecution in respect of
the plaintiff who was detained for a period of 4 days before bail was granted and further
period of two years imprisonment before being released on par ole. The court in Maphosa5
award ed of R500 000.00 for the wrongful arrest and detention of the plaintiff who spent
almost a month in detention.
Legal principles
[16] The plaintiff correctly referred to the legal principle that arrest without a warrant is
prima facie unlawful and in t he absence of any evidence from the defence to justify the arrest
I am in con strained to return the verdict against the defendants. The Constitutional Court held
in Mahlangu6 that in a claim based on the interference with the constitutional right not to be
deprived of one’s physical liberty, all that the plaintiff has to establish is that interference has
occurred. Once that has been established, the deprivation is prima facie unlawful and the
defendant bears an onus to prove that there was justification for the interference.
[17] The award for damage are ordinarily meant t o deter and prevent future infringements
of the fundamental by organ of st ate (see Mahlangu at paragraph 50). In addition , the Court
in Mahlangu quoted with appro val sentiments echoed by the SCA stated Seymour that
"Money can never be more than a crude solatium for the deprivation of what in truth can
3 Phayi v Minister of Police and Another (2063/2019)[2024] ZAECPEHC 15 (22 February 2024) .
4 Mxolisi M Shabalala v Minister of Police and Director of Public Prosecutions (323/2021) ZAMPHC (02
March 2023).
5 Maphosa v Minister of Police (10505/18)[2022]ZAGPJHC 486 (26 July 2022).
6 Mahlangu and Another v Minister of Police (CCT 88/20) [ 2021] ZACC 10; 2021 (7) BCLR (CC); 2021 (2)
SACR 595 (CC).
never be restored and there is no empirical measure for the loss."7 It was stated i n Diljan8,
“…A word has to be said about the progressively exorbitant amounts that are claimed by
litigants lately in comparable cases and sometimes awarded lavishly by our courts. Legal
practitioners should exercise caution not to lend credence to the incredible p ractice of
claiming unsubstantiated and excessive amounts in the particulars of claim. Amounts in
monetary claims in the particulars of claim should not be “thumb -sucked” without due regard
to the facts and circumstances of each case. Practitioners ought to know the reasonable
measure of previous awards, which serve as a barometer in quantifying their clients’ claims
even at the stage of the issue of su mmons. They are aware, or ought to be, of what can
reasonably be claimed based on the principles enunciate d above.”
[18] Though previous award only serve as guide and are not authorities to be blindly
followed , it was held in Rasmeni9 an award in the sum of R125 000.00 is reasonable where
the plaintiff was arrested and detained for 1 month. The court in Lifa10 awarded the sum of
R600 000.00 where the plaintiff was detained for a period of three months . The
Constitutional Court in Mahlangu where police officers tortured the first plaintiff to make a
confession , 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 . In Maghoti11 the Court awarded an amount of R1 000 000.00 to the
plaintiff for arrest and detention of eighteen months.
Analysis
[19] In casu the plaintiff stated that the sleeping conditions were abhorable , the
environment was unhealthy as there was no running water and he could not as a result even
take a bath. The defendant failed to come forth and demonstrate the basis for the conclusion
that the plaintiff has committed the allegations levelled against him alternatively just to
demonstrate that the arrest and the decision to prosecute were based on proper legal
7 Id at para [50].
8 Diljan v Minister of Police (746/2021) [2022] ZASCA 103 (24 June 2022) .
9 Rasmeni v Minister of Safety and Security (1883/2010) ZAEC MHC 60 (30 OACTOBER 2018).
10 Lifa v Minister of Police and Others [2022] JOL 55956 (GJ).
11 Maghoti and Another v Minister of Police Case No. (KP407/2018 )[2022] NWHC (07 July 2022).
Appearances:
Plaintiff : FJ Ma metja , instructed by NJ Belcher Attorneys .
Defendants : No appearance.