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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Case no: CIV APP MG 25/2023
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
In the matter between:
K[...] C[...] K[...] APPELLANT
and
THE MINISTER OF POLICE RESPONDENT
Coram: PETERSEN J et WESSELS AJ
Date Heard: 8 November 2024
JUDGMENT
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives via email. The date and time for hand-down is deemed to
be 09 January 2025 at 10h00.
ORDER
1. The appeal is upheld.
2. The order of the court a quo is set aside and replaced with the following
order:
‘(i) The defendant is ordered to pay the plaintiff the amount of R90 000.00
together with interest at the rate of 7.25% per annum a tempore morae.
(ii) The defendant is ordered to pay the plaintiff’s cos ts on the
Magistrates Court scale.’
3. The defendant is ordered to pay the costs of the appeal on party and party
Scale A.
Wessels AJ:
Introduction
[1] This is an unopposed appeal against a judgment by the Ganyesa Magistrate’s
Court. The order appealed against is as follows:
“9.1. The Defendant is ordered to pay an amount of R45,000.00 in
damages for the unlawful arrest and detention of the Plaintiff.
9.2. Defendants [sic] is ordered to pay interest on the amount of
R45,000.00 at the rate of 7.25 % per annum from 17 January 2022
to date of full and final payment.
9.3 The Defendants [sic] are ordered to pay the Plaintiff the costs of suit
on a scale as between party and party.”
Background
[2] The succinct facts of the matter before the court a quo was that the appellant
was arrested without a warrant on allegations of illegal hunting on 13 October
2019 and detained at the Morokweng Police cells from 13 October 2019 up to
15 October 2019. In adducing evidence on quantum, the appellant testified that
he was frightened when arrested. On arrival at the cells, he was threatened by
other detainees. On the first night spent in the cell s, according to the appellant,
one of the inmates “ made me his wife” denoting that he was sodomised .
Thereafter, he was threatened with his life should he inform the authorities
about the sodomisation.
[3] The conditions in the holding cells were not conducive, in that the toilets were
blocked, which he could not use as a result; he did not have a mattress to sleep
on and was only given one blanket for the purpose.
[4] The personal circumstances of the appellant are that he is a livestock farmer
who farms with goats and sheep. He has three minor children who do not
reside with him aged 10, 7 and 4 years.
[5] According to the appellant he lost his motor vehicle within three months of
being detained, a claim that was not supported by the pleaded facts.
[6] On 15 January 2020, all criminal charges against the appellant were withdrawn.
The appeal
[7] The legal representative of the appellant submitted in this Court, that the
appellant is entitled to R180,000.00 in damages.
[8] This Court need not concern itself with the merits of the matter, as they were
conceded at trial in the court a quo . T he evidence in the court a quo was
focused on the determination of the quantum of the claim. Despite opposing the
matter on the issue of quantum, the respondent did not call any witnesses to
testify in mitigation.
[9] Another f actor to be considered insofar as the specific circumstances of the
arrest and detention of the appellant are concerned is that it was agreed to be
common cause in the court a quo that the arrest was unlawful. To this extent ,
the appellant’s person has been invaded and his constitutional rights infringed
upon.
[10] While detained in the holding cells , t he appellant was subjected to a harsh
environment where he was denied the basic amen ities of the use of ablution
facilities and sleeping on a mattress.
[11] A dominant factor relied on by the appellant which has the propensity to
increase the quantum of the damages , is the issue of the appellant’s alleged
sodomisation. This issue requires careful and sensitive consideration against
the facts pleaded by the appellant and the evidence adduced in support
thereof.
[12] The appellant failed to even tangentially plead the all eged sodomisation in his
particulars of claim (facta probanda ). To exacerbate the failure to plead the
alleged sodomisation, the issue also featured rather cursorily in the appellant’s
evidence. Absent facta probanda on the alleged sodomisation, there can be no
talk of facta probantia (that is evidence adduced to prove the facta probanda). It
is inexplicable, bearing in mind that the alleged sodomisation had not been
pleaded in the particular of claim in the summons, that the legal representative
for the respondent in the court a quo did not object to such evidence being
tendered by the appellant. Such evidence, sans the pleading of the applicable
facta probanda, held clear prejudice for the respondent as the appellant had a
duty to plead the facts upon which he relied.
[13] An apt description of the duty that rests on the pleader in a summons is found
in Prinsloo v Woolbrokers Federation Ltd1 where the court remarked as follows:
“Now a pleader's first duty is to allege the facts upon which he relies; his
second duty is to set out the conclusions of law which, he claims, follow from
the pleaded facts. Facts and conclusions of law must be kept separate. In
my opinion the declaration and particulars do not observe this distinction.”
[14] The duty set out in Prinsloo2 is found in Rule 18 (4) of the Uniform Rules of
Court and is instructive in the drawing of pleadings in general . The subrule
reads as follows:
“Every pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his or her claim, defence or answer to
any pleading, as the case may be, with sufficient particularity to enable the
opposite party to reply thereto.”
[15] In Buchner and Another v Johannesburg Consolidated Investment Co Ltd 3, the
Transvaal Provincial Division, a Full Bench as it was then known, discussed the
practical application of Rule 18(4) on the structure and content of a summons
as follows:
“The necessity to plead material facts does not have its origin in this Rule. It
is fundamental to the judicial process that the facts have to be established .
The Court, on the established facts, then applies the rules of law and draws
1Prinsloo v Woolbrokers Federation Ltd 1955 (2) SA 298 (N) at 299 D-E
2 Ibid, fn9
3 Buchner and Another v Johannesburg Consolidated Investment Co Ltd1995 (1) SA 215 (T) at 216 I -
J
conclusions as regards the rights and obligations of the parties and gives
judgment. A summons which propounds the plaintiff's own conclusions and
opinions instead of the material facts is defective. Such a summons does not
set out a cause of action. It would be wrong if a Court were to endorse a
plaintiff's opinion by elevating it to a judgment without first scrutinising the
facts upon which the opinion is based.”
(own emphasis)
[16] This Court can do no better than to refer to the ultimate conclusion drawn on
this point in a judgment of this Division by Petersen J in Blos v Minister of
Police4:
“The principles enunciated in the authorities referred to above are clear and
require no further elucidation save to consider their application to the
peculiar circumstances to the present matter. Firstly, a party has a duty to
allege in the pleadings the material facts upon which it relies. Secondly, it is
impermissible for a plaintiff to plead a particular case and seek to establish a
different case at the trial.”
(own emphasis)
[17] The appellant’s belated and cursory incantation of allegedly being sodomised in
the absence of such facts being pleaded must be considered against the
objective evidence, which militates against the probability of this serious
allegation. The appellant failed to repor t the incident to a police official , and
neither did he lay any criminal charges when he had an opportunity to do so . In
passing, it merits noting that a lthough the appellant testified that he went to a
clinic after he was released from the holding cells, he failed to present any
evidence in confirmation thereof.
[18] The alleged sodomisation was not part of the appellant’s pleaded case and
should resultantly have no effect on the determination of the quantum . On the
facts presented to the court a quo on this issue, this Court is not persuaded that
4 Blos v Minister of Police (114/2019) [2023] ZANWHC 126 (20 July 2023) at paragraph 22
the appellant satisfied the onus of proof in respect of the sodomisation itself, let
alone the possible escalatory effect thereof on the quantum of the claim . To
this extent, the alleged sodomisation cannot be considered in the calculation of
damages.
[19] On a similar footing to the alleged sodomisation, the appellant failed to plead or
prove that the alleged patrimonial damages suffered because of the loss of his
motor vehicle were a direct result of his detention either.
Quantum
[20] The determination of the quantum of the damages suffered by the appellant
entails the balancing of various interests. The rights of individual freedom lie at
the heart of our constitutional dispensation. It is a well -established principle
that a balance must be struck between enforcing constitutional rights and
ensuring that the resulting award, accura tely corresponds with the
circumstances of the matter, while not resulting in an overcompensation of a
claimant.
[21] In Diljan v Minister of Police 5, the Supreme Court of Appeal (SCA) warned
against the deviation from the principles mentioned above, in the determination
of the quantum of damages in cases of wrongful arrest. The SCA remarked
that although a balance should be struck between the award and the injury
inflicted, it in the same breath cautioned that the Minister of Police should not
be used as the proverbial “cash cow”.
[22] This view has its origins in the most pertinent judgment of the SCA on the
issue, in Minister of Safety and Security v Tyulu6 where the following was said:
“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
5 Diljan v Minister of Police [2022] ZASCA 103 at paragraph 17
6 Minister of Safety and Security v Tyulu (327/2008) [2009] ZASCA 55 at paragraph 26 . See also
Masiteng v Minister of Police [2024] ZASCA 165
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 o f
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.”
[23] In assessing the quantum of damages in such cases , the SCA in Motladile v
Minister of Police 7 re-affirms the specific considerations in the process of
assessment as follows:
‘The assessment of the amount of damages to award a plaintiff who was
unlawfully arrested and detained, is not a mechanical exercise that ha s
regard only to the number of days that a plaintiff had spent in detention.
Significantly, the duration of the detention is not the only factor that a court
must consider in determining what would be fair and reasonable
compensation to award. Other factor s that a court must take into account
would include (a) the circumstances under which the arrest and detention
occurred; (b) the presence or absence of improper motive or malice on the
part of the defendant; (c) the conduct of the defendant; (d) the nature of the
deprivation; (e) the status and standing of the plaintiff; (f) the presence or
absence of an apology or satisfactory explanation of the events by the
defendant; (g) awards in comparable cases; (h) publicity given to the arrest;
(i) the simultaneous invasion of other personality and constitutional rights;
and (j) the contributory action or inaction of the plaintiff.”
and (j) the contributory action or inaction of the plaintiff.”
7 Motladile v Minister of Police [2023] ZASCA 94 at paragraph 17
[24] In Masiteng v Minister of Police 8, the appellant who was incarcerated for 42
hours, appealed against an award of damages in the amount of R30 000,
having claimed R210 000 in the Magistrates Court. The SCA stated as follows:
‘[12] It is trite that a court of appeal will be hesitant to interfere with the
factual findings and evaluation of the evidence by a trial court. In cases
involving deprivation of liberty, the quantum of damages to be awarded is at
the discretion of the trial court, to be exercised fairly, and generally
calculated according to what is equitable and good, and on the merits of the
case itself (ex aequo et bono). As a result, an appeal court should be slow to
interfere, unless there are specific reasons to do so.
…
[14] Comparable cases and the awards made therein are nothing more than
a useful guide to what courts have considered to be appropriate on the facts
before them, but they have no higher value than that. Ultimately, each case
must be determined on its own facts. In my view, the high court correctly
endorsed this principle and did not interfere with the amount awarded by the
regional court.
[15] Counsel for the applicant submitted (without it being specifically
mentioned in the judgment) that, the social status an d standing of the
applicant seem to have been regarded as the overriding criteria in
determining what was an appropriate compensation. It was an injustice to
the intrinsic value of the applicant because he was a farm worker, and ‘poor
people should not be compensated less simply because they are poor’.
[16] Counsel argued that the regional court materially misdirected itself, as it
was influenced by the wrong principles and did not exercise its discretion
judicially, by only awarding an amount of R30 000 t o the applicant. It was
contended that an amount of R100 000 would have been a fair amount
under the circumstances. Furthermore, the court did not consider other
comparable cases.
8 Masiteng v Minister of Police [2024] ZASCA 165
[17] Regarding exceptional circumstances, counsel for the applicant argued
that this was a social injustice as the disparity in the amount is based on the
applicant’s social standing. It was argued that the high court erred in not
adjusting the compensation awarded to the applicant and failing to apply all
the relevant considerations.
[18] Applying the legal principles mentioned above, these submissions are
without merit. The high court confirmed that the unlawful arrest and detention
of the applicant infringed his personal rights of liberty, body integrity and
human dignity. And that the primary purpose of an award is not to enrich a
party but to offer him a solatium for his injured feelings.”
[25] An important cog in the process of determining the quantum of damages in
cases such as th e present is to consider the awards in recent comparable
judgments. Recent judgments where awards have been made for unlawful
arrest and detention include the Full Bench judgment of the Eastern Cape High
Court, Grahamstown in Minister of Police v Page 9, where the court awarded
damages of R30 000 to the claimant who had been detained for one day. In the
matter of Shode v Minister of Police 10 the Full Bench of Eastern Cape High
Court, Makhanda granted compensation in the amount of R40 000 to the
claimant who had been detained for 22 hours. In Diljan v Minister of Police 11,
the Supreme Court of Appeal awarded R120 000 to the claimant for arrest and
detention of three days. In Lenoke v Minister of Police 12 the Full Bench of this
Division granted R30 000 for an unlawful detention that lasted three hours. In
Motladile, the claimant who spent four days and nights in detention, was
awarded damages of R200 000.
9 Minister of Police v Page [2021] ZAECGHC 22
10 Shode v Minister of Police [2022] ZAECMKHC 11
11 Diljan v Minister of Police [2022] ZASCA 103
12 Lenoke v Minister of Police [2024] ZANWHC 277
[26] In the final analysis, as the SCA re -iterated in Masiteng, with reference to
Neethling v Du Preez and Others; Neethling v Weekly Mail and Others 13, as
applied by the Constitutional Court in Dikoko v Mokhatla14:
“In cases involving deprivation of liberty, the quantum of damages to be
awarded is at the discretion of the trial court, to be exercised fairly, and
generally calculated according to what is equitable and good, and on the
merits of the case itself (ex aequo et bono).”
Conclusion
[27] It is against the aforesaid principles, that the award of damages, relevant to the
peculiar facts of this matter must be considered. The appellant was detained for
three (3) days before he was released , when the charges were withdrawn
against him. The award of R45 000 by the court a quo does not accord with the
salient principles and this Court is at large to interfere.
[28] Having regard to the fact that the only issues of relevance in the court a quo
from the evidence of the appellant were that he could not use the ablution
facilities, and was a farmer, without quantifying any impact on his incarceration
on his farming activities , and that he was detained for three (3) days, o n a
careful consideration of all the se factors, an award of R 90 000 would be just
and equitable.
Costs
[29] Although the appeal was not opposed , the appellant was substantially
successful with his appeal and there exists no reason to deviate from the
normal rule that costs should follow the result.
Order
13 Neethling v Du Preez and Others; Neethling v Weekly Mail and Others [1994] ZASCA 133; 1995 (1)
SA 292 (A); [1995] 1 All SA 441 (A) at 301G-H
14 Dikoko v Mokhatla [2006] ZACC 10; 2006 (6) SA 235 (CC); 2007 (1) BCLR 1 (CC) paragraph 94
[30] Resultantly the following order is made:
1. The appeal is upheld.
2. The order of the court a quo is set aside and replaced with the following
order:
‘(i) The defendant is ordered to pay the plaintiff the amount of R 90 000.00
together with interest at the rate of 7.25% per annum a tempore morae.
(ii) The defendant is ordered to pay the plaintiff’s costs on the
Magistrates Court scale.’
3. The defendant is ordered to pay the costs of the appeal on party and party
Scale A.
____________________________
M WESSELS
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
I agree.
____________________________
A H PETERSEN
JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
APPEARANCES:
For the Appellant : Mr O K K A Lehabe
Instructed by : Lehabe Attorneys Inc
7443 Cydonia Street
Unit 15
MMABATHO
For the Respondent : No appearance