SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED:

CASE NO: 2020/42404
DATE: 6 August 2025

In the matter between:

M[...], K[...] Plaintiff

and

MINISTER OF POLICE Defendant

Coram: M Van Nieuwenhuizen, AJ
Heard on: 5- 7 May 2025 and 2 June 2025
Delivered: 6 August 2025

JUDGMENT

M VAN NIEUWENHUIZEN, AJ:

INTRODUCTION

2

[1] This is a delictual action for loss of support and general damages
(emotional shock, grief and trauma), which the plaintiff instituted against the
defendant. It is alleged that members of the South African Police Services caused
the death of I[...] B[...], a Nigerian citizen, who is the father of the plaintiff’s child
namely K[...] I[...] M[...] (“K[...]”) born on the 11 th of May 2018. At the time of the
deceased’s death K[...] was not yet born. The plaintiff has instituted this action both
in her personal capacity and in her representative capacity as the mother and natural
guardian of the minor child.

[2] Such killing is alleged to have been committed by the members of the
South African Police Services on the 10 th of October 2017, at his place of residence
whilst acting within the course and scope of their employment with the Minister of
Police. Consequently it is alleged that the defendant is vicariously liable.

COMMON CAUSE

[3] The following is common cause between the parties:
[3.1] The date of the incident;
[3.2] The place where the incident happened;
[3.3] The identity of the deceased;
[3.4] Jurisdiction;
[3.5] Locus standi of the plaintiff;
[3.6] That the police are members of the defendant who were
on duty on the day of the incident;
[3.7] The death of the deceased;
[3.8] The search was conducted without a warrant.

ISSUES IN DISPUTE

[4] The matter proceeded on both the merits and quantum. The onus is on
the plaintiff to prove the following:
[4.1] That the members of the South African Police Services
caused the death of I[...] B[...] by asphyxia or suffocation;

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[4.2] That the deceased was supporting the plaintiff
financially prior to his death or loss of support caused by the death of the
deceased;
[4.3] That the plaintiff and her child K[...] have suffered
general damages (emotional shock, grief and trauma) caused by the death of
the deceased;
[4.4] Quantum

[5] The issue regarding paternity of K[...] became common cause at the
commencement of the trial.

PLEADINGS

[6] The plaintiff’s pleadings are inter alia as follows:
[6.1] The plaintiff was in a relationship with I[...] B[...] who was killed by
members of the police through suffocation;
[6.2] When the deceased passed on the plaintiff was pregnant with the
child of the deceased;
[6.3] The police officers were performing their duties under the
employment of the defendant.

[7] The deceased, had he not been killed, would have been legally obliged to
support the minor child.

[8] The deceased was gainfully employed by CHI Game, Shop & Restaurant
at the time of his death earning an amount of R9 000,00 per month.

[9] As a result of the wrongful actions of the members of the South African
Police Services, the plaintiff and her minor child have suffered general damages
(shock, grief and emotional trauma).

[10] he defendant filed a plea, but the defence was later withdrawn on record.
Therefore, there is no version of the defendant. The defendant’s plea referred to a

4

police shootout and that the death of the deceased was caused by shooting and that
he was contributorily negligent. It was apparent that the incorrect plea was delivered
that had no bearing on the facts of this case.
THE EVIDENCE OF THE PLAINTIFF

[11] The plaintiff, Mr Muzi Happ yness Mandlazi (social worker) and Dr
Marumo gave viva voce evidence. Mr Mandlazi and Dr Marumo were qualified as
experts. Further, the plaintiff relied on the following reports:
[11.1] The postmortem report;
[11.2] The social worker’s report;
[11.3] The actuarial report.

[12] Ms M[...] testified that:
[12.1] At the time of the death of the deceased she was in a
relationship/partnership with the deceased;
[12.2] They were not permanently staying together but the
deceased was spending more time at her place and had the intention to
move in with her;
[12.3] She called the deceased and the phone was answered
by a friend of the deceased (Emmanuel) who asked her to come to her
workplace;
[12.4] She started receiving messages of condolences for the
passing of her boyfriend/partner;
[12.5] She later found out that her boyfriend was killed by the
Police through suffocation.

[13] As a result of the brutal killing of the deceased the minor child has no
father to support him. The deceased also gave the plaintiff an amount of R1 500,00
per month for a period prior to his passing as she was unemployed.

[14] Dr Marumo testified that:
[14.1] He examined the body of the deceased, whom
according to the police consumed drugs at the time of the incident and had an

5

epileptic fit;
[14.2] His instruction was to determine the cause of death of
the deceased;
[14.3] After the examination, he concluded that the deceased
died of lack of oxygen supply to the brain, which was as a result of
suffocation;
[14.4] The toxicology report revealed that there were no drugs
detected in the bowel, blood, liver or stomach of the deceased.

[15] Dr Marumo made the following chief postmortem findings with regards to
the deceased in his medico-legal postmortem examination / report:
“The postmortem examination was performed on an adult black male
Nigerian national and found that the deceased died possibly due to
asphyxia. Postmortem examination also found the abrasions around the
wrist and lower back which are possibly caused by handcuffs. The (sic)
were many other small abrasions which are caused when the body was
moved around after his death but none of this (sic) abrasions will have
caused his death.”

[16] The defendant did not call any expert witnesses to challenge this finding.

[17] Mr Mandlazi (social worker) testified inter alia the following with reference
to his report:
[17.1] The sudden death of her partner had a profound impact
on K[...]’s life, both emotionally and financially;
[17.2] At the time of the incident she was pregnant which
further intensified her trauma;
[17.3] Following the death of the deceased, K[...] was solely
responsible for arranging and covering all funeral expenses, as the deceased
was originally from Nigeria and had no immediate family present in South
Africa. This responsibility placed an enormous financial and emotional burden
on her.

6

[18] As a result of the trauma and financial strain, K[...] was forced to
discontinue her college studies, abruptly ending her educational aspirations.
Compounding her challenges, her child was born with several complications,
including a diagnosis of autism. The ongoing medical and developmental needs of
her child has placed additional pressure on her limited resources.

[19] Currently, K[...] survives primarily on social grant support to provide for
herself and her child. The loss of her partner has caused long- term trauma,
disrupting her educational, financial and emotional stability. The deceased’s death
also devastated future plans, as the deceased had intended to marry K[...],
deepening her sense of loss and grief.

[20] Overall, the traumatic event has resulted in severe, lasting impacts on
K[...]’s mental health, financial situation, and quality of life, necessitating continued
psychological and economic support.

[21] The trauma experienced by K[...] has been profound and has had far-
reaching effects on multiple aspects of her life:
[21.1] Emotional and psychological impact
o K[...] continues to suffer from severe emotional distress, including
symptoms of depression, anxiety and post-traumatic stress disorder (“PTSD”);
o She experiences persistent grief, flashbacks, emotional
numbness and overwhelming sadness related to the sudden and violent loss
of her partner;
o The traumatic event has led to a significant loss of trust in
institutions, particularly law enforcement, further complicating her recovery
process.
[21.2] Educational and career impact
o K[...] was forced to abandon her college education due to the
financial and emotional strain following the incident. The loss of educational
opportunities has limited her ability to achieve financial independence and
career advancement;

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[21.3] Financial impact
o Following the death of her partner, who was the primary
breadwinner, K[...] faces severe financial hardship;
o She now relies solely on social grants for survival which barely
cover her and her child’s basic living expenses. The financial burden was
intensified by having to independently cover funeral costs with no external
family support.
[21.4] Social and family impact
o K[...] experiences significant social withdrawal and isolation,
struggling to maintain previous relationships and support networks. The birth
of a child with autism has introduced additional caregiving responsibilities,
further increasing her emotional and physical stress levels.
[21.5] Long-term life impact
o The death of her partner destroyed plans for marriage and
building a stable family life, leaving a lasting sense of loss and emotional void.
The trauma is viewed by K[...] as a “lifetime trauma”, deeply embedded in her
identity and day to day existence. Her future outlook remains uncertain,
marked by continuous emotional struggle and financial insecurity.

[22] Several unresolved issues remain between K[...] and the relevant parties
involved in the traumatic event. There has been a lack of accountability – there has
been no formal acknowledgment, accountability, or justice regarding the actions of
the police officers allegedly responsible for the deceased’s death. This has
intensified K[...]’s sense of injustice and hindered her emotional healing.

[23] Absence of legal closure – no legal proceedings, investigations or
compensatory actions have been finalised concerning the circumstances of the
death. The absence of a legal resolution continues to contribute to K[...]’s prolonged
trauma.

[24] K[...] has received no formal support from any Government institutions,
law enforcement bodies, or other official agencies following the traumatic incident,
leaving her feeling abandoned and mistrustful towards police services.

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[25] Due to the deceased being a foreign national without local family support,
K[...] was left solely responsible for all post-death arrangements, creating unresolved
emotional and financial burdens. K[...] has been unable to achieve emotional
closure regarding the loss of her partner, as the circumstances surrounding his death
remain clouded by unanswered questions and perceived injustices.

[26] Mr Mandlazi recommends inter alia further counselling for K[...] and
ongoing monitoring and evaluation.

[27] Mr Mandlazi concludes as follows:
“The trauma inflicted on the family due to the wrongful actions of the SAPS
members underscores the critical need for immediate and effective responses
addressing the physical, emotional, and legal repercussions is paramount to
the family’s recovery and restoring their sense of safety and justice.
These recommendations aim to address the immediate needs of the affected
family, ensure accountability for the wrongful actions, and promote systemic
changes to prevent similar incidences in future. By taking a comprehensive
and multifaceted approach, the family can be assisted to recover from this
traumatic experience and work towards a safer and more just community.”

[28] With regards to the minor child, Mr Mandlazi recommends in his report as
follows:
“Implement TF/CBT to help the child process and manage trauma related
thoughts and emotions.
Play therapy: the use of play therapy to create a safe and expressive
environment for the child to explore and articulate feelings.”

[29] Mr Mandlazi concludes that the trauma experienced by the family has had
devastating and multifaceted impacts, effecting their emotional, psychological,
physical, social, and economic wellbeing. The long- term consequences of these
traumatic events are likely to be severe if comprehensive and sustained intervention
is not provided. The family requires urgent support to address these impacts,

9

stabilise their situation, and begin the healing process to prevent further deterioration
of their overall wellbeing.

[30] Much of this evidence has been unchallenged by the defendant and no
expert has been called or qualified on behalf of the defendant to gainsay what Mr
Mandlazi testified. His evidence remains unchallenged in significant respects.

Defendant’s evidence

[31] On the 10
th of October 2017 at approximately 10h00 eight police officers
involved in the matter were on duty, performing crime prevention operations in the
Vanderbijlpark area. These police officers were divided into three different vehicles.
In a Ford Ranger there was Captain Arends, Warrant Officer Mamasela, Constable
Khoza and Sergeant Tenteza. In the second vehicle there was Sergeant Mkhuma
and Sergeant Van der Walt and in the third vehicle was Sergeant Ngwane and
Constable Ngwenya.

[32] Sergeant Van der Walt informed the officers that they were selling drugs
at 70D Forest Street and that they had to go and search there.

[33] On their arrival at the address they found a short gate that was not locked.
They went inside the house and found four males. The police then introduced
themselves as police officers, whilst they were in full uniform. They told the people
in the house the reason for why they were there and they requested permission to
search. They then split the searching of the rooms. One male was inside a room
alone, who was later discovered to be I[...] B[...], the deceased. The police officers
deny having played any part in the death of the deceased or having caused the
death of the deceased.

[34] Warrant Officer Mkhuma
[34.1] Warrant Officer Mkhuma testified that he was on duty
with Constable Ngwenya when they received information that there were
drugs being sold at Vanderbijlpark.

10

[34.2] On arrival, he went to the room of the deceased and
searched there.
[34.3] After having found dagga in the room, they then
handcuffed the deceased from behind.
[34.4] When they were leaving the house, the deceased asked
for water and he gave him water.
[34.5] Immediately after that the deceased fell on his head and
started to fit. He does not know what happened after that.

[35] Sergeant Ngwane
[35.1] Sergeant Ngwane testified that on his arrival he entered
the house from the front door and went to give back up to Warrant Officer
Mkhuma as he was searching alone.
[35.2] He told the deceased why they were searching.
[35.3] He denies that the police were the cause of the death of
the deceased.
[35.4] During cross -examination after the evidence had been
elicited by the plaintiff Sergeant Ngwane, testified that he saw the deceased
taking something from his pants and swallowing it. The deceased fitted
thereafter.
[35.5] They were assaulted by Nigerians who were alerted and
arrived on the scene. By the time the Nigerians arrived the deceased had
already passed away.

[36] This Court feels constrained to say a word about the credibility of the
Police witnesses: It bears mentioning that I was not impressed with the witnesses
on behalf of the defendant. I got the distinct impression that they were not being
frank with this Court. Their evidence most ly consisted of a bare denial and
responses such as “they have no knowledge” . There were clear lacunas in the
evidence and I found them to be unco-operative and not helpful at all.

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LEGAL FRAMEWORK

[37] Our Constitution sets out in no uncertain terms that the mandate of the
South African Police Services is to, amongst other things, maintain public order and
protect the inhabitants of the Republic. This is a constitutional mandate and its
importance ought not to be undermined in considering the constitutionality of a
provision aimed at achieving that purpose.
1

[38] In terms of section 2 the Constitution, the Constitution of the Republic is
declared the supreme law of the Republic. It is further provided that law or conduct
inconsistent with it is invalid, whilst the obligations it imposes must be fulfilled.

[39] Section 7 of the Constitution in its relevant parts provides that:
“(1) This Bill of Rights is a cornerstone of democracy in South Africa. It
enshrines the rights of all people in our country and affirms the democratic
values of human dignity, equality and freedom.
(2) The state must respect, protect, promote and fulfil the rights in the
Bill of Rights.”

[40] In the matter of Thulagano Edward Mokomele v Minister of Police
2
where the facts of that matter relate to the facts in this matter, Snyman J aptly stated
that members of the SAPS are tasked with the duty to protect and serve the
community members, and there is no excuse for excessive force, and assault by a
member of the SAPS towards a member of the public.

[41] In Baring Eiendomme Bpk v Roux 3 the SCA adopted the following
passages in National Employers General Insurance Co Ltd v Jagers:

1 Section 205(3) of the Constitution, Act 108 of 1996; Residents of Industry House, 5 Davies
Street, New Doornfontein, Johannesburg and Others v Minister of Police and Others [2021]
ZACC 37 at para 47
2 Unreported Judgment, Case No. 1/2018, North West Division of the High Court of South Africa
Mahikeng
3 2001 (1) All SA 399 (SCA) at para 7

12

“… where there are two mutually destructive stories [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 other
version advanced by the defendant is therefore false and mistaken and falls
to be rejected. In deciding whether that evidence is true or not, the Court will
weigh up and test the plaintiff (sic) allegations against the general
probabilities. The estimate of the credibility of a witness will therefore be
inextricably bound up with a consideration of the probabilities of the case and,
if the balance of probabilities of the case and, if the probabilities favours the
plaintiff then the Court will accept his version as being probably true. If
however, the probabilities are evenly balanced in the sense that they do not
favour the plaintiff’s case, more than they do the defendant’s, the plaintiff can
only succeed if the Court nevertheless believes him and is satisfied that the
evidence is true and that the defendant’s version is false.”
4
This view seems to be in general accordance with the view expressed by
Coetzee J in Koster Ko- operatiewe Landbou Maatskappy Bpk v Suid-
Afrikaanse Spoorweë en Hawens 1974 (4) SA 420 (W) and African Eagle
Assurance Co Ltd v Cainer 1980 (2) SA 324:
“I would merely stress however that when in such circumstances one talks
about a plaintiff having discharged the onus which rested upon him on a
balance of probabilities , one really means that the Court is satisfied on a
balance of probabilities that he was telling the truth and that his version was
therefore acceptable. It does not seem to me to be desirable for a Court first
to consider the question of the credibility of the witnesses as the trial Judge
did in the present case, and then, having concluded that enquiry, to consider
the probabilities of the case, as though the two aspects constitute separate

the probabilities of the case, as though the two aspects constitute separate
fields of enquiry. In fact, as I have pointed out, it is only where a consideration
of the probabilities fails to indicate where the truth probably lies, that recourse
is had to an estimate of relative credibility apart from the probabilities.”

4 1984 (4) 437 (A) at 44 OE -44IA; Engelbrecht v City of Tshwane Metropolitan Municipality
[2023] ZAGPPHC 350, A85/ 2021 (4 May 2023) at para 5 (Full Bench Decision)

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EVALUATION

[42] It is trite that a party pursuing a claim in civil litigation has a duty to satisfy
the Court on a balance of probabilities.

[43] Having regard to the undisputed facts as pleaded in the particulars of
claim as supported by the evidence of Dr Marumo I find that the deceased died as a
result of suffocation caused by members of the defendant.

[44] It is the evidence of the plaintiff as conceded by the evidence of the
defendant that the deceased, at all material times, was with the police until he
passed on, meaning there was no intervening event during the members of the
South African Police Services’ arrival until his death.

[45] The defendant has failed to plead its case and no version of the
defendant was put to the plaintiff’s witnesses.

[46] The defendant failed to call expert witnesses. Therefore, the evidence of
the expert witnesses of the plaintiff remained unchallenged.

[47] Consequently, on the merits on a balance of probabilities I find in favour
of the plaintiff. Consequently, I find that the members of the South African Police
Services caused the death of the deceased.

DAMAGES
Past and future loss of support

[48] The actuarial report was not placed in dispute by the defendant. The
defendant agreed to the correctness of the contents of the actuarial report compiled
by the plaintiff’s actuary.
5 Quantum was not placed in dispute at all by the

5 Para 22, Defendant’s Heads of Argument, CaseLines 19-39

14

defendant. The actuarial report has two scenarios which consists of an 18- year plan
and a 21-year plan which is set out as follows:

15


[49] The difference between the two scenarios is insignificant and the plaintiff
has proposed that the amount of loss of support should be the average of the total
net values of the loss of support, thus the amount of R2 031 590,00.

General damages

[50] General damages and the quantum of the general damages has also not
been placed in dispute.

[51] The assessment of the quantum of general damages is a comparative
exercise of prior cases on bodily injuries. Relating to this process, Potgieter JA in
Protea Assurance Co Ltd v Lamb
6 said:
“It should 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 ...”

[52] Past awards provide a guide only. Courts are expected to exercise
judicious discretion to ensure that the award is fair. Fairness encompasses a
delicate balance amongst the competing interests at play. Holmes J sounded a
warning in Pitt v Economic Insurance Co Ltd
7 that:
“… the Court must take care to see that its award is fair to both sides - it must
give just compensation to the plaintiff, but must not pour out largesse from the
horn of plenty at the defendant's expense.”

[53] Eksteen J in the matter between Ambrose v Road Accident Fund 8 also
stated the following:

6 1971 (1) SA 530 (A) at 530-536
7 1957 (3) SA 284 (N)
8 2011 (6C4) QOD 13 (ECP) at [48]

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“General damages: In assessing an award for general damages the court has
a broad discretion to award what it considers to be fair and adequate
compensation. The court will generally be guided by awards previously made
in comparable cases and will be alive to the tendency for awards to be higher
in recent years than was previously the case. (Compare De Jongh v Du
Pisanie NO 2005 (5) SA 457 (SCA) 457D -E). In considering previous awards,
it is appropriate to have regard to the depreciating value of money due to the
ravages of inflation. It would however be inappropriate to escalate such
awards by a slavish application of the consumer price index. (See AA
Onderlinge Assuransie Assosiasie BPK v Sodoms 1980 (3) SA 134 (A)).”

[54] An award for general damages is considered as solatium , i.e. as
compensation for the injured party’s pain and suffering, and loss of amenities of life.

[55] The general damages claimable in a case such as the current one are:
[55.1] pain and suffering over the loss of the deceased’s life –
on the plaintiff’s part;
[55.2] loss on the plaintiff’s part and on the minor child’s part,
of the enjoyment of the amenities of life with the deceased.
9

[56] In Komape v Minister of Basic Education
10 the Supreme Court of
Appeal recognised the claim for pain and suffering in circumstances of grief and
bereavement, thus developing the law insofar as claims for emotional shock formed
part of a claim for what is traditionally general damages.

[57] In the matter of Nkabinde v Minister of Police 11 this Court was faced
with a matter where the police shot and killed a father of two minor children and the
Court made the following findings:
“[14] Pain and suffering may be physical, mental or both. For example,

9 Nkabinde v Minister of Police (50315/2010) [2024] ZAGPPHC 678 (17 July 2024)
10 [2020] 1 All SA 651 (SCA); 2020 (2) SA 347 (SCA)
11 (50315/2010) [2024] ZAGPPHC 678 (17 July 2024

17

damages may be awarded for psychological or psychiatric injury.
[15] In casu, it was demonstrated that the plaintiff’s life totally
unravelled consequent to the demise of his wife. He became a drug addict
and lost his employment with the attendant failure to be responsible for the
upkeep of his children.
…
[17] Having regard to the above and other similar cases, I am satisfied
that the interests of justice would be best served by the following award:
17.1 The defendant is ordered to compensate the plaintiff and the two
minor children for general damages as follows: In respect of the plaintiff – an
amount of R350 000.00. In respect of the children – R300 000.00 per child.
Total amount – R950 000.00.”

[58] The plaintiff has addressed me and proposed that I award the amount of
R400 000,00 in respect of each of the plaintiff and the minor child totalling the sum of
R800 000,00.

[59] Having regard to the abovementioned Nkabinde case and other similar
cases, I am satisfied that the interests of justice would be best served if I awarded
general damages in the amount of R350 000,00 in respect of the plaintiff and
R300 000,00 in respect of the minor child.

ORDER

[1] Accordingly, it is ordered that the defendant is to pay damages to the
plaintiff in the total sum of R2 681 590,00 as follows:
[1.1] The defendant is ordered to compensate the plaintiff and the minor
child for past and future loss of support in the amount of R2 031 590,00.
[1.2] The defendant is ordered to compensate the plaintiff and the minor
child for general damages as follows:
1.2.1 In respect of the plaintiff R350 000,00
1.2.2 In respect of the minor child R300 000,00
Total R650 000,00

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[1.3] The defendant is to pay the plaintiff’s costs on a party
and party scale at Scale B of Rule 67A of the Uniform Rules of Court (as amended).

M Van Nieuwenhuizen AJ
Acting Judge of the High Court
Johannesburg, Gauteng

Delivered: This judgment was prepared and authored by the Judges whose
names are 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 CaseLines. The date for hand- down is deemed to be on 6 August
2025.

HEARD ON: 5-7 May 2025 and 2 June 2025
DATE OF JUDGMENT: 6 August 2025
FOR PLAINTIFF: Advocate B M Khumalo
INSTRUCTED BY:

H C Makhubele Incorporated

FOR DEFENDANT: Advocate M M Mokwena
INSTRUCTED BY:

The State Attorney