2




JUDGMENT



TWALA J


Introduction


[1] The plaintiff has instituted three distinct claims for damages against the defendants
in the following terms:
1.1 unlawful detention against the first defendant;
1.2 unlawful arrest against the second to the fourth defendants; and
1.3 defamation against the second to fourth defendants.

[2] All the three claims are defended by the respective defendants. The plaintiff
testified and called one witness to substantiate his claim whilst the second to fourth
defendants called only one witness, the third defendant who was the arresting
officer at the time of the occurrence. The first defendant did not call any witnesses.

Background

Plaintiff’s Case

[3] The plaintiff testified that he came home from work at about 20H00 as he was
working late on 1 March 2019 and found that the second to fourth defendants have
set up a roadblock on a public road but just in front of the driveway to his gate.
However, he was allowed to drive into his yard. He got into his house and spoke
to his wife about the unreasonableness and disturbance caused by roadblock and
decided to approach the officers to find out if they would be keen to relocate it to
oppose the vacant land not far from his house. The officers just ignored him.
When he asked for their details, the third respondent became aggressive , pushed

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him with both his hands on his chest and told him to get into his house otherwise
he will arrest him.

[4] Realising that the officers were continuing with the roadblock and ignoring his
attempt to speak to them, he went back to his house and fetched his cellphone
which he had placed in a charger as its battery was low. His primary intention was
to photograph or take a video of the roadblock so that he would lay a complaint
with the authorities about how it was set up in front of his house. He was not rude
or aggressive towards the officers, but when they saw that he was recording a
video of the scene and especially the vehicle, the third defendant pounced on him
and arrested him without explaining his rights and what he was arrested for.

[5] He was aggressively cuffed as a result at some point he felt numbness in his fingers
and when he requested the officer, the third defendant to loosen the cuffs, he just
ignored him. He was then driven to the Edenvale police station with his hands
cuffed to his back. On the way to the police station, he heard the third and fourth
defendants talking about crimen injuria and he asked them as to when exactly did
he insult them. He informed them that he knows what crimen injuria means
because he is an attorney. They still did not answer him but warned him that they
will teach him a lesson.

[6] He sat on the wooden bench at the police station with his hands still cuffed. Both
the third and fourth defendants wrote their statements, and the third defendant
finished first and gave his statement to the fourth defendant. After the fourth
defendant finished writing her statement, the off icers approached the front desk
and completed some forms whereafter the handcuffs were taken off and he was
led to the cells. He was locked up in a sticking cell with no running water from
the tap but could only get drinking water from the shower. The toilet was not
flushing and the shower also ended up flooding. There were no lights in the cell

flushing and the shower also ended up flooding. There were no lights in the cell
he was kept in and he could not sleep the whole night since there were not enough
blankets and or mattresses for all the arrestees.

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[7] People who were arrested and brought to the police station after him were released
on bail, but he was not released. When his wife enquired about his release on bail
she was told that he has to sit. He was only released on 2 March 2019 at 10H00
on a R1000 bail and warned to appear in court on 4 March 2019. He appeared in
court on Monday 4 March 2019 before a magistrate who knew him and colleagues
who were in court for other matters. The prosecutor called his matter in front of
everyone and stated the charges of crimen injuria and that of interfering with th e
police in the execution of their duties.

[8] The magistrate suggested that the case be referred to mediation because of the
charge of crimen injuria as it was alleged that he said to the officers ‘ek praat nie
met kaffirs nie’. On 29 March 2019 he attended mediation with his attorney, Mr
Malatjie where the prosecutor said that if he pays R20 000 the matter will go away
since it is a serious matter which is similar to the Momberg case where Ms
Momberg was sentenced to three years imprisonment. He refused to pay the
R20 000 and decided to make representations to the senior public prosecutor and
attached the video that he took with his cellphone to the representations. In the
end, the charges were withdrawn by the prosecutor.

[9] The next witness was Mrs Mari tjie Jacobs, who is wife of the plaintiff. The nub
of her testimony was confirmation that her husband came home at about 20H00
on the 1 March 2019 and asked what time the officers set up the roadblock. She
told him that it was about an hour ago which meant it was around 19H00. He said
he was going to request the officers to move the roadblock to opposite the open
veld down the road for it was unreasonable and disturbing when it is so close to
their home. She watched through the window of their bedroom as he a pproached
the officer who was immediately outside the gate, but the officer ignored him. He
approached the second officer, and she also ignored him.

approached the second officer, and she also ignored him.

[10] He then came back to the house and said he wanted his phone for he wa nted to
take a video of the roadblock so that he can make enquiries from the Metro Police

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Department if it was lawful for the officers to set up a roadblock in front of h is
house. Immediately he came out of the gate and started to take the video, he was
arrested, handcuffed and placed in the police vehicle. She asked the police where
they were taking him, and they said Edenvale police station. She then changed her
clothes and followed them to the police station.

[11] At the police station she kept asking when the plaintiff was going to be admitted
to bail and the officers kept saying she must come back after an hour. It was only
around 02H00 on 2 March 2019 that she was told that ‘this one has to sit’. She
came back at about 05H45 and waited for the plaintiff to be released on bail. She
had witnessed some people who were arrested after the plaintiff being released
since 22H00 on 1 March 2019 but not the plaintiff. She heard the plaintiff calling
her from the bugler -frame of his cell whilst she was at the parking lot, and she
advised him that she was being told to come back after an hour and nothing was
happening.

[12] It was only around 19H00 that she was called and informed to pay a bail of R1 000
for the release of the plaintiff, but the plaintiff was only released around 22H00.
The plaintiff would not speak to her about the incident and when they got home,
he took a bath and went straight into bed.

[13] Both the plaintiff and his witness were cross examined at length but they
steadfastly stood their ground. The plaintiff persisted that he was not drunk and
rude to the police officers. He never directed any unsavoury words to the police
officers. However, Mrs Jacobs conceded that she could not hear the conversation
between the plaintiff and the officers since she was witnessing this incident from
her bedroom window. She denied that she was driving the vehicle in which the
plaintiff was a passenger as alleged by the officers.

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Video Evidence

[14] A video was shown in court which showed the plaintiff moving almost along and
next to the palisade fence of his house with the cellphone camera facing or directed
at the metro police vehicles. There is an officer standing between the police
vehicles with his back to the plaintiff, but he did not show any concern about the
presence of the plaintiff. The third respondent, as he also acknowledged that it was
his voice that was heard on the video speaking in IsiZulu, saying that he is now
going to arrest him, arrested the plaintiff. The plaintiff’s response in the video was
that he is not fighting and the video was then switch off.

Defence Case

[15] It was the turn for Mr Koahela, the third respondent , to testify on behalf of the
second to fourth respondents. H is testimony was that they were directed by their
superiors to set up a roadblock along Homestead Road in Kempton Park. As they
were manning the roadblock, a white sedan vehicle approached being driven by a
white lady with a man as her passenger. They stopped the vehicle and administered
the breathalyser on the driver. The vehicle was smelling alcohol and the plaintiff
who was a passenger indicated that this was his house. The plaintiff addressed
them in a calm tone, and they allowed the vehicle to enter the yard.

[16] A few minutes later, the plaintiff came out of the house and shouted at the officers
who were manning the roadblock and said, ‘hey you, go fucking away from here,
this is my house, you are disrupting my peace’. There were about seven to eight
officers manning the roadblock with three to four marked motor vehicles of the
second defendant. The plaintiff smelled of alcohol and was under the influence.
He did not respond to the plaintiff’s utterances and the plaintiff went on to the
fourth defendant and repeated his former statements. However, the fourth
defendant did not respond to the plaintiff.

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[17] The plaintiff was swearing at the officers and approached the motorists which
were stopped at the roadblock , telling them that he was a lawyer and that these
officers are corrupt and are not arresting anyone but just want money. He then
reprimanded him and told him what he was doing was wrong, he must go back to
his house otherwise he would arrest him for crimen injuria and interf erence with
the work of the police officers on duty. He then removed him by guiding him with
his hands into his gate where the plaintiff said ‘ek praat nie met die kaffirs nie’.
He felt bad by what was said by the plaintiff but was prevented from arresting him
at the time because the plaintiff’s dog came out and approached the plaintiff.

[18] The plaintiff was intoxicated as he smelled of alcohol and his speech was blurred.
After a few minutes the plaintiff came out of the house again and went to the
motorists and gave them his business cards saying that he will represent them in
court as these officers are corrupt. He did not believe that the plaintiff was a lawyer
due to his conduct. He again warned him that he will arrest him for obstructing
officers from doing their work. The plaintiff then took out his cellphone and
recorded a video. He then said to the officers that he is taking the plaintiff in and
arrested him at that time and the video switched off.

[19] The plaintiff respondent by saying that he was not fighting and he handcuffed him
and placed him in the vehicle. He read him his rights and informed him of the
charges against him. His wife came and he gave her the keys which were on the
plaintiff and informed her that the plaintiff will be taken to Edenvale police station.
They drove the plaintiff to the police station with his colleague Ms Mashigo who
was driving the vehicle. He completed making his statement at the police station
and handed the plaintiff and the docket to the police. He only uncuffed the plaintiff

and handed the plaintiff and the docket to the police. He only uncuffed the plaintiff
at about 22H00 when he completed opening the docket and the hand over to t he
police was done.

[20] He further testified that he attended a mediation with regard to this case where the
plaintiff, his attorney and the public prosecutor were in attendance. The attorney

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for the plaintiff offered a sum of R3000 for the case against the plaintiff to be
dropped and he refused to accept the offer as he wanted the matter to go to court.
He does not know and was never advised why the matter was withdrawn by the
senior public prosecutor.

[21] Under cross examination he refused to answer questions about the discrepancies
in his statement and that of the fourth defendant saying that it does not want to
incriminate himself. He could not explain why he did not arrest the plaintiff
immediately he came out of his house for the second time since he had formed the
intention to arrest him when he got into the house but was prevented by the
presence of the plaintiff’s dog. He conceded that at the time when he arrested the
plaintiff, the plaintiff was not on the road where they were manning the roadblock
but, on the pavement, next to the fence of his house.

Legal Framework

[22] It is apposite that the relevant provisions of the Criminal Procedure Act 1 are
restated which provide the following:

“40 Arrest by peace officer without warrant
(1) A peace officer may without warrant arrest any person-
(a) who commits or attempts to commit any offence in his presence;
(b) …
(j) who wilfully obstructs him in the execution of his duty;
(i) …


Discussion


[23] There is no debate that the plaintiff was arrested by a peace officer, the metro
police officer of Ekurhuleni Metropolitan Municipality and without a warrant.

1 51 of 1977

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The issue to be determined is whether the arrest was lawful or not, having regard
to the circumstances of the case. Put differently, whether the plaintiff’s presence
in that space at the time when the officers were conducting the roadblock was
causing an obstruction on the officers in performing their duties and whether the
plaintiff committed an offence of crimen injuria in the presence of the third
defendant.
[24] It is now a well -established principle of our law that a person’s freedom and
security are sacrosanct and protected by our Constitution. In Mahlangu and
Another v Minister of Police,2 the Constitutional Court dealing with this principle
stated the following:
“it is trite now that public policy is informed by the Constitution. Our Constitution
values freedom, understandably so when regard is had to how, before the dawn of
democracy, the freedom of 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 section 1 of the
Constitution. Section (7) (1) of the Constitution provides that the Bill of Rights
enshrines the rights of all people in our country and affirms democratic values of human
dignity, equality and freedom. These constitutional provisions and the protection of
section 12 of the right of freedom and security of the person are at the heart of public
consideration3”.
[25] In De Klerk v Minister of Police,4 the Constitutional Court stated the following:
“The principles emerging from our jurisprudence can then be summarised as follows.
The deprivation of liberty, through arrest and detention, is per se prima facie unlawful.
Every deprivation of liberty must only be effected in a procedurally fair manner but
must also be substantively justified by acceptable reasons5”.

2 2021 (2) SACR 595 (CC)
3 Id para 43
4 2020 (1) SACR 1(CC)
5 Id para 62

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[26] It is trite that the plaintiff always has the onus of proving its case on a balance of
probabilities. In a case where there are two mutually destructive versions, as in
this case, the plaintiff can only succeed if he satisfies the Court on a
preponderance of probabilities that his version is true and accurate and therefore
acceptable and that the version of the defendant is false and should be rejected.
It means therefore the onus is on the plaintiff to prove its case and when it is said
that the plaintiff has discharged the onus which rested upon him on a balance of
probabilities, it means that the Court is satisfied on a balance probability that he
was telling the truth, and this version should therefore be believed and accepted.
[27] In Stellenboch Farmers’ Winery Group Ltd and Another v Martell Et CIE and
Others6, where the Supreme Court of Appeal gave guidance as to the technique
of dealing with mutually destructive versions as follows:
“The technique generally employed by courts in resolving factual disputes of this
nature may conveniently be summarised as follows. To come to a conclusion on the
disputed issues a court must make findings on (a) the credibility of the various factual
witnesses; (b) their reliability; and (c) the probabilities. As to (a) [credibility], the
court’s finding on the credibility of a particular witness will depend on its impression
about the veracity of the witness. That in turn will depend on a variety of subsi diary
factors, not necessarily in order of importance, such as (i) the witness [s] candour and
demeanour in the witness -box; (ii) his bias, latent and blatant; (iii) internal
contradictions in his evidence; (iv) external contradictions with what was pleade d or
put on his behalf, or with established fact or with his own extra curial statements or
actions; (vi) the calibre and cogency of his performance compared to that of other
witnesses testifying about the same incident or events. As to (b), a witness' [reliability]

witnesses testifying about the same incident or events. As to (b), a witness' [reliability]
will depend, apart from the factors mentioned under (a)(ii), (iv) and (vi) above, on (i)
the opportunities he had to experience or observe the event in question and (ii) the
quality and integrity and independence of his recall thereof. As to (c) [probabilities],
this necessitates an analysis and evaluation of the probability or improbability of each
party’s version on each of the disputed issues. In the light of its assessment of (a), (b)
and (c) the court will then, as the final step, determine whether the party burdened with
the onus of proof has succeeded in discharging it. The hard case, which will doubtless

6 [2003] (1) SA 11 (SCA)

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be the rare one, occurs when a court’s credibility findings compel it in one direction
and its evaluation of the general probabilities in another. The more convincing the
former, the less convincing will be the latter. But when all factors are equipoised
probabilities prevail.”7 [Words in square brackets and emphasis added.]
[28] There is no explanation why the plaintiff, who is said to have been calm when
he arrived at his house for the first time and said in calm voice to the police
officers ‘this is my house’, would come out of the house in an aggressive manner
and shout at the police officers to relocate the roadblock. However, the plaintiff
says that a s he persisted with his enquiry with the officers who were not
interested in him, the third defendant’s demeanour suddenly changed to
aggressive and threatened to arrest the plaintiff when the plaintiff asked for their
names and identities. He ordered the plaintiff to go back to his house and in fact
pushed the plaintiff on his chest into his yard.
[29] The third defendant said he had already formed the intention to arrest the plaintiff
for interfering with th e police officers’ duties and crimen injuria when the
plaintiff left the scene for the first time but was prevented from effecting the
arrest by the plaintiff’s dog. However, he could not explain why he did not arrest
the plaintiff immediately the plaintiff came out of the yard the second time.
According to the video recording, which was not disputed by the defendants, the
plaintiff was taking a video of the scene which covered the roadblock and the
metro police vehicles which were parked along the fence of the plaintiff’s house
at the time when he was arrested.
[30] The plaintiff’s witness also confirmed that the plaintiff was never aggressive
towards the police officers but accepted that, as she was witnessing the whole
incident from her bedroom window, she was unable to hear what was said by

incident from her bedroom window, she was unable to hear what was said by
both parties. She also testified that the plaintiff was from work at the time and
was not drunk as purported by the third defendant. It is my respectful view
therefore that the conduct of the plaintiff in approaching the police officers and

7 Id at 141 – 15 G

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enquiring if they could relocate the roadblock does not amount to interference
and obstruction with the police officer in the execution of his lawful duties.
[31] On the video, one of the officers exclaimed that the plaintiff was tak ing
photographs of their vehicles and the third defendant responde d by saying that
he was now going to arrest the plaintiff for interference. There was no mention
at that stage of any other charge except for interference with the police in the
execution of their duties. That explains why the third defendant did not arrest the
plaintiff when he pushed him into his yard or house in the first instance nor
immediately when he came out of the house in the second instance. It is apparent
from the video that all the plaintiff did which actuated the arrest was recording a
video of the scene and the metro police vehicles.
[32] I am of the considered view therefore that the arrest of the plaintiff without a
warrant was unjustified and unlawful since there was no offence committed by
the plaintiff in the presence of the arresting officer nor did the plaintiff interfere
with the police officers in the execution of their duties. I hold the view that
citizens are entitled to ask questions and are entitled to explanations from the law
enforcement officers in respect of their conduct and that cannot be regarded as
interference with the execution of their lawful duties.
[33] The plaintiff is heard in the video at the time of the arrest saying, in calm voice,
that he will not fight the officers. This is contrary to the testimony of the third
defendant that the plaintiff was aggressive towards the officers. Again, I accept
the contentions of the plaintiff that he was never aggressive towards the officers.
Had he been, the officer who appears on the video would have paid attention to
the plaintiff, but he did not even turn around to look at the plaintiff who was
approaching him from behind. The plaintiff would have been a very brave man

approaching him from behind. The plaintiff would have been a very brave man
to confront seven or eight officers in an aggressive manner.
[34] It is telling that the defendants chose not to call any witnesses other than the third
defendant when the roadblock was mended by about eight officers. The fourth

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defendant was present in court for the first two days of the hearing but chose not
to testify and the second to fourth defendants chose to close their case after the
testimony of the third defendant. There was no explanation proffered as to why
the fourth defendant did not testify nor the other officers who were manning the
roadblock.
[35] In Tshishonga v Minister of Justice and Constitutional Development and
Another8 the Court dealing with the issue of not calling potential witnesses stated
the following:
“The failure of a party to call a witness is excusable in certain circumstances, such as
when the opposition fails to make out a prima facie case. But an adverse inference must
be drawn if a party fails to testify or produce evidence of a witness who is ava ilable
and able to elucidate the facts, as this failure leads naturally to the inference that he
fears that such evidence will expose facts unfavourable to him or even damage his case.
That inference is strengthened if the witnesses have a public duty to testify."9
[36] There is no dispute that the first defendant received the plaintiff from the metro
police and detained him in order to investigate the charges levelled against him
by the metro police officers. The first defendant did not call any witnesses nor
tendered any evidence regarding the detention of the plaintiff. The detention of
the plaintiff flowed from an unlawful arrest and can therefore not be lawful in
the circumstances. I hold the view therefore that the detention of the plaintiff
from the time of his arrest to the time of his release the next day, which is a
period of twenty-six hours, is unjustified and unlawful.
[37] It is trite that defamation as regulated by the actio iniuriarum , occurs when a
statement has a negative impact on someone’s reputation to the point that it alters
the community’s perception of them. For the plaintiff t o successfully claim
defamation, he must demonstrate that there was pu blication of a defamatory

defamation, he must demonstrate that there was pu blication of a defamatory
statement which was intentional and was intended to harm the reputation of the

8 [2007] (4) SA 135 (LC)
9 Id para 112

14


plaintiff. Further, that the publication violated the plaintiff’s right to good name,
reputation and dignity.
[38] In Khumalo and Others v Holomisa 10 the Constitutional Court stated the
following when dealing with defamation and its requirements:
“At common law, the elements of the delict of defamation are –
(a) the wrongful and
(b) intentional
(c) publication of
(d) a defamatory statement
(e) concerning the plaintiff.
It is not an element of the delict in common law that the statement be false. 14 Once a
plaintiff establishes that a defendant has published a defamatory statement concerning
the plaintiff, it is presumed that the publication was both unlawful and intentional. A
defendant wishing to avoid liability for defamation must then raise a def ence which
rebuts unlawfulness or intention. 15 Although not a closed list, 16 the most commonly
raised defences to rebut unlawfulness are that the publication was true and in the public
benefit;17 that the publication constituted fair comment 18 and that the publication was
made on a privileged occasion. 19 Most recently, a fourth defence rebutting
unlawfulness was adopted by the Supreme Court of Appeal in National Media Ltd and
Others v Bogoshi.20 In that case, Hefer JA, after a careful analysis of the development
of a similar defence in Australia, England and the Netherlands, held that:
‘. . . the publication in the press of false defamatory allegations
of fact will not be regarded as unlawful if, upon a
consideration of all the circumstances of the case, it is found
to have been reasonable to publish the particular facts in the
particular way and at the particular time.

10 (CCT53/01) [2002] ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771 (14 June 2002)

15


In considering the reasonableness of the publication account
must obviously be taken of the nature, extent and tone of the
allegations. We know, for instance, that greater latitude is
usually allowed in respect of political discussion (Pienaar and
Another v Argus Printing and Publishing Co Ltd 1956 (4) SA
310 (W) at 318 C-E), and that the tone in which a newspaper
article is written, or the way in which it is presented,
sometimes provides additional, and perhaps unnecessary,
sting. What will also figure prominently is the nature of the
information on which the allegations were based and the
reliability of their source, as well as the steps taken to verify
the information. Ultimately there can be no justification for
the publication of untruths, and members of the press should
not be left with the impression that they have a licence to lower
the standards of care which must be observed before
defamatory matter is published in a newspaper.” (at 1212G -
1213A).11”

[39] The evidence before this Court is that the third and fourth defendants
made statements to the South African Police Service in order to report a
crime of crimen in juria and interfering or obstructing the police in the
execution of their lawful duties intending to open a criminal investigation
against the plaintiff. The third defendant testified that he does not know
why the charges were withdrawn against the plaintiff as he has been
waiting to testify at the plaintiff’s criminal trial.
[40] The issue that needs to be determined by this Court is whether the making
of a statement or deposing to an affidavit to the police with a view of
opening a criminal case amount to defamation or not in the event that no
prosecution follows. Put another way, does the making of a statement to
the police with the intention to open a criminal investigation against the

11 Id para 18

16


plaintiff amount to publication of the statement which meets the
requirements of defamation.

[41] In his heads of argument, counsel for the plaintiff referred this Court to
the case of Louw v Moretsele12 wherein, the Court dealing with the issue
of a statement which is made to the police with the intention to open a
criminal investigation stated the following:
“The legal excuse the respondent espoused in his plea is that he was simply
reporting an offence to the police and did not intend to injure the good name
of the appellant. The upshot of what had been stated by the respondent in his
plea, taken into context, is that there was justification in law to report what he
considered to be an offence against him. Crimen inuria is a common law crime
and pointing a firearm is a statutory one. There is a generally accepted
recognition in our law that for these crimes to be prosecuted, they need to be
reported to the police first for investigation purposes. Historical background
has shown that a large part of our community is not au fait with the law. As a
result, they report to the police as the first port of call to the justice system, any
conduct which in their view offends them. The National Prosecuting Authority
is entrusted with the authority to sift through and determine whether a crime
has been committed or not, and where it has, to prosecute. In addition, people
are generally encouraged to report crimes instead of taking the law into their
own hands.13
Our law is settled that one of the defences normally raised by litigants who
are accused of making defamatory statements is that the statement was
‘privileged’. This means that it was made in a context that is generally
deserving of protection either for p olicy, legal, moral, or societal duty or
interest reasons. Even though the defence of privilege was not explicitly stated
in the plea, the averments in the plea are in my view, sufficient to support this

in the plea, the averments in the plea are in my view, sufficient to support this
defence, but most importantly, the respondent demons trated during the trial
that he had a legal excuse to report an offence. To conclude that his defence
should not succeed because it was not explicitly spelled out in his plea, is to

12 (A44/2022) [2023] ZAMPMBHC 30 (18 May 2023)
13 Id para 25

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elevate form over substance, which is normally discouraged in our law. After
all, the respondent was not required to state the law, but the facts from which
such a conclusion of the law can be deduced. The trial Court was therefore
entitled, objectively so, to reach the finding that the defence of privilege was
properly raised and canvassed during the trial14.”

[42] I am of the view that the above case does not support the case of the
plaintiff in that the making of a statement to the police with the intention
to open a criminal investigation does not amou nt to publication of a
statement as envisaged in defamation cases. A false statement made to the
police with the intention to institute a criminal investigation is not itself
defamatory unless it is published or disseminated to a wider audience.
Furthermore, the plaintiff has failed to demonstrate that the third and
fourth defendants had the intention to injure his good name.

[43] It is not sufficient for the plaintiff to say that he appeared in open Court
before a magistrate who knew him and some of his colleagues who were
present. I hold the view therefore that, although it was not pleaded by the
third and fourth defendants, it is clear in the evidence of the third
defendant that he and his colleague made the statements to the police with
the intention that a criminal investigation be opened. He does not know
why the case was then withdrawn but the intention was clear that he made
a statement to open a case for investigation against the plaintiff. It is my
respectful view that the claim for defamation falls to be dismissed.

[44] There is uncontroverted evidence before this Court that the plaintiff was
handcuffed from the time of his arrest at 20H00 until the time he was
handed over to the police at 22H00. It appears from the photographs that

14 Id para 26

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the handcuffs were very tight to the exten t that they left some red marks
on the plaintiff’s wrists when they were removed. I t is on record that
officers who arrested the plaintiff did not entertain his request that they
loosen the handcuffs as his fingers felt numb at some point.

[45] In assessing damages for the unlawful arrest and detention, it is necessary
to consider that the primary purpose is not to enrich the aggrieved party
but to offer him some much-needed solatium for his injured feelings. It is
therefore important that serious attempts be made to ensure that the
damages awarded are commensurate with the injury inflicted.

[46] In Minister of Safety and Security v Tyulu15 the Supreme Court of Appeal
dealt with the issue of awarding damages arising from the actio iniuriarum
and stated the following:
“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. 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. 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 ( Minister of Safety and Security v Seymour 2006 (6) SA 320

damages on such facts ( Minister of Safety and Security v Seymour 2006 (6) SA 320

15 (327/2008) [2009] ZASCA 55; 2009 (5) SA 85 (SCA); 2009 (2) SACR 282 (SCA); [2009] 4 All SA 38
(SCA) (27 May 2009)

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DATE OF HEARING: 12 - 15 May 2025
DATE JUDGMENT DELIVERED: 12 June 2025

APPEARANCES:

Attorney for the Plaintiff: Stupel & Berman Inc
Tel No: 011 776 3000
Email: nadine@stupelberman.co.za


Counsel for the Plaintiff: Advocate J Viljoen




Attorney for the first Defendant: State Attorney
Tel No: 011 330 7631


Counsel for the first Defendant: Advocate D Lebenya


Attorneys for the second to the
Fourth defendants : Tiaan Smuts Attorneys
Tel No: 012 342 0350
Email: anton@tsa.co.za

Counsel for second to the
Fourth defendants : Advocate J Gerber




Delivered: This judgment and order was prepared and authored by the Judge whose
name is reflected and is handed down electronically by circulation to the
Parties/their legal representatives by email and by uploading it to the
electronic file of this matter on Case Li nes. The date of the order is
deemed to be the 12 June 2025.

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