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REID J
[1] This is a claim for damages resulting from an unla wful arrest
and detention on 30 July 2014 on a charge of public drinking,
under South African Police Service SAPS CAS 856/07/2014
at Orange Farm. The plaintiff was arrested without a warrant
at approximately 21h00.
[2] The plaintiff was detained at the Orange Farm Police Station
under Orange Farm SAP 14 cell register 548/2014 until 31
July 2014 at 12h00. The plaintiff thus remained detained for
a period of 15 hours.
[3] The defendant conceded that the plaintiff was arrested and
detained unlawfully.
[4] The issue to be determined by t his Court is the quantum of
the damages suffered by the plaintiff.
[5] The plaintiff claims an amount of R400,000.00 for
compensation of delictual damages suffered as a result of
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the arrest and detention.
Evidence
[6] The plaintiff was the only witness that testified. He stated that
he was traumatised and experienced an infringement to
human dignity, movement and conditions consistent to
dignity. He also testified that he experienced an infringement
of his physical and personal rights, as well as an
infringement of his security of person.
[7] When the plaintiff was arrested, he was handcuffed with
another person and placed in the back of a police vehicle
(“van”). H e was arrested in public and since the arrest the
community perceived him as a criminal. After he was
released, he spent days hiding from the public.
[8] The plaintiff stated that he was placed in an overcrowded
police cell in detention. He felt threatened as the other
prisoners asked him if he has money. He could not sleep
and had to sit down on the cold concrete. He ended up
standing for the majority of the evening and the following
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day. The toilet was unhygienic and dirty. Grey blankets
were supplied, but it was filthy. It also appeared that feces
were rubbed against the wall of the prison cell. The cell had
a terrible smell.
Damages
[9] It is trite law that each case must be judged on its own
merits. The facts of every matter are to be considered in
determination of a fair quantum. In Motladile v Minister of
Police 2023 JDR 2055 (SCA) , any application of a
generalised amount per day was warned against. It was held
that:
“[12] The amount of damages to be awarded to a
plaintiff in a deprivation of liberty case, as we have
here, is in the discretion of the trial court. That
discretion must naturally be exercised judicially. The
approach of an appellate court to the question of
whether it can substitute a trial court’s award of
damages is aptly summarised by the Constitutional
Court in Dikoko v Mokhatla 2006 (6) SA 235 (CC) as
follows:
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‘. . . [S]hould an appellate Court find that the trial
court had misdirected itself with regard to
material facts or in its approach to the
assessment, or having considered all the facts
and circumstances of the case, the trial court’s
assessment of damages is markedly different to
that of the appellate court, it not only has the
discretion but is obliged to substitute its own
assessment for that of the trial court. In its
determination, the Court considers whether the
amount of damages which the trial Court had
awarded was so palpably inadequate as to be out
of proportion to the injury inflicted.’
[10] The difficulty for the courts in determining the most
appropriate amount to be awarded for damages, have been
discussed in South African Journal of Criminal Justice /
Chronological / 2020 / Part 2 / Quantification of damages
for unlawful arrest and detention: South Africa, Namibia
and Eswatini/Swaziland (1) ((2020) 33 SACJ 320) by Chuks
Okpaluba and aptly described as follows:
“In Ferdinand v Minister of Police 628/2014)
[2018] ZALMPPHC 58 (7 March 2018) at paras [19] –
[21]. Makgoba JP of the Limpopo Division, having
distilled from existing case law and set out by Visser
and Potgieter in their Law of Damages , had stated
some guidelines for quantification as follows:
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“In deprivation of liberty the amount of damages
is in the discretion of the court. Factors which
play a role are the circumstances under
which the deprivation of liberty took place; the
presence or absence of improper motive or
malice on the part of the defendant; the
harsh conduct of the defendants; the duration
and nature of the deprivation of liberty; the status;
standing; age; health and disability of the plaintiff;
the extent of the publicity given to deprivation of
the liberty; the presence or absence of an
apology or satisfactory explanation of the
events by the defendant; and awards in
previous comparable cases.”
[11] In Mbata v Minister of Police 2023 JDR 3015 (NWM) a full
bench decision, penned by Petersen J, found as follows:
“[11] A court in exercising its discretion must balance the
premium placed on the right of liberty and human dignity,
whilst avoiding extravagance in compensating for loss of
liberty. The peculiar facts of each matter should prevail as a
general rule with comparative analysis being secondary
thereto.
The primary purpose of awarding damages (solatium) in
unlawful arrest and detention claims is succinctly captured by
Bosielo AJA (as he then was) in Minister of Safety and
Security v Tyulu 2009 (5) SA 85 (SCA) at paragraphs [26]
and [27], where he said:
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“[26] 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
(SCA) 325 para 17; Rudolph & others v Minister of
Safety and Security & others (380/2008) [2009]
ZASCA 39 (31 March 2009) (paras 26-29).
[27] Having given careful consideration to all relevant
facts, including the age of the respondent, the
circumstances of his arrest, its nature and short
duration, his social and professional standing, the fact
that he was arrested for an improper motive and
awards made in comparable cases, I am of the view
that a fair and appropriate award of damages for the
respondent’s unlawful arrest and detention is an
amount of R15 000.”
[12] It is inevitable that reliance is placed on awards in
previously decided cases. This was the approach adopted by
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the appellant’s counsel before the Magistrate and remains
the approach on appeal. The guiding of words of Nugent JA
in Seymour supra with emphasis on Protea Assurance Co
Ltd v Lamb 1971 (1) SA 530 (A) , regarding reliance on
previously decided cases remains trite:
“[17] The assessment of awards of general
damages with reference to awards made in
previous cases is fraught with difficulty. The facts
of a particular case need to be looked at as a
whole and few cases are directly comparable.
They are a useful guide to what other courts have
considered to be appropriate but they have no
higher value than that . As pointed out by
Potgieter JA in Protea Assurance, after citing
earlier decisions of this Court:
‘The above quoted passages from
decisions of this Court indicate that, to the
limited extent and subject to the
qualifications therein set forth, the trial
Court or the Court of Appeal, as the case
may be, may pay regard to comparable
cases. 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. Comparable cases, when
available, should rather be used to afford
some guidance, in a general way, towards
assisting the Court in arriving at an award
which is not substantially out of general
accord with previous awards in broadly
similar cases, regard being had to all the
factors which are considered to be
relevant in the assessment of general
damages. At the same time it may be
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permissible, in an appropriate case, to test
any assessment arrived at upon this basis
by reference to the general pattern of
previous awards in cases where the injuries
and their sequelae may have been either
more serious or less than those in the case
under consideration.’
. . .
[20] Money can never be more than a crude solatium
for the deprivation of what, in truth, can never be
restored and there is no empirical measure for the loss.
The awards I have referred to reflect no discernible
pattern other than that our courts are not extravagant in
compensating the loss. It needs also to be kept in mind
when making such awards that there are many
legitimate calls upon the public purse to ensure that
other rights that are no less important also receive
protection.”
[13] The Supreme Court of Appeal has recently expressed
itself very strongly in respect of the comparative award
approach in the assessment of quantum of damages
in unlawful arrest and detention matters. In Diljan v Minister
of Police (746/2021) [2022] ZASCA 103 (24 June 2022),
Makaula AJA, writing for the Court was very emphatic in
respect of exorbitant amounts claimed by litigants in
comparable cases, when he said:
“[14] . . . What remains to be decided therefore is the
quantum thereof. On this score, Counsel for the
appellant, inter alia, urged this Court to have regard to
past awards in assessing the appropriate amount to be
awarded. Counsel referred us to several previous
judgments, including the judgment of Lopes J in
Khedama v The Minister of Police. The plaintiff in that
matter had issued summons for unlawful arrest and
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detention against the defendant, claiming an amount of
R1 million. She was arrested and detained for a period
of 9 days from 3 December 2011 and released on 12
December 2011.
[15] In Khedama, the court, in large measure, had
regard to the appalling conditions in the country’s
detention facilities, such as lack of water, blocked
toilets, dirty and smelling blankets, sleeping on the
cement floor, bad quality of food, and lack of sleep.
Having considered various heads of damages, Lopes J
awarded damages for wrongful arrest and detention of
R100 000, deprivation of liberty and loss of amenities
of life of R960 000 (R80 000.00 per day for 12 days);
defamation of character including embarrassment and
humiliation of R500 000 and general damages in an
amount of R200 000. In total, he assessed the total
damages suffered at R1, 760 000. However, because
the amount claimed was limited to R1 000 000 he was
awarded the latter amount.
. . .
[18] The acceptable method of assessing damages
includes the evaluation of the plaintiff’s personal
circumstances; the manner of the arrest; the duration
of the detention; the degree of humiliation which
encompasses the aggrieved party’s reputation and
standing in the community; deprivation of liberty; and
other relevant factors peculiar to the case under
consideration.
. . .
[20] 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 practice of claiming unsubstantiated and
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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 a
particular 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 summons. They are
aware, or ought to be, of what can reasonably be
claimed based on the principles enunciated above.
[21] The facts relating to the damages sustained by
the plaintiff in Khedama are largely similar to those in
this matter. However, the excessive amount awarded
in Khedama cannot serve as a guide in a matter like
the present. Even the length of the period during which
Ms Khedama was incarcerated, was overstated and,
as a result, she was awarded an amount which was, in
my view, significantly more than what she deserved.”
(emphasis by Petersen J)
[14] A court in exercising its discretion must balance the
premium placed on the right of liberty and human dignity,
whilst avoiding extravagance in compensating for loss of
liberty. The peculiar facts of each matter should prevail as a
general rule with comparative analysis being secondary
thereto.”
[12] The following factors are considered in determination of a
reasonable and fair amount of compensation to the plaintiff in
casu:
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12.1. The plaintiff was detained for a period of 15 hours.
12.2. The arrest took place in view of member of the public.
12.3. After the arrest, t he plaintiff isolated himself as he
perceived the community members viewed him as a
criminal.
12.4. The conditions in the police cell were untenable.
12.5. The plaintiff perceived his safety to be at risk in the
police cells.
[13] It is submitted on behalf of the plaintiff that an amount of
R140,000.00 would be sufficient compensation for the
damages suffered by the plaintiff.
[14] It is submitted on behalf of the defendant that a fair and
appropriate award would be R35,000.00 to R45,000.00.
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Comparable awards
[15] A sensible starting point of the determination of quantum, is
the dictum of Nugent JA in Minister of Safety and Security
v Seymour 2006 (6) SA 320 (SCA) where he said at para
20:
'Money can never be more than a crude solatium for
the deprivation of what, in truth, can never be restored
and there is no empirical measure for the loss. The
awards I have referred to reflect no discernible pattern
other than that our courts are not extravagant in
compensating the loss. It needs also to be kept in mind
when making such awards that there are many
legitimate calls upon the public purse to ensure that
other rights that are no less important also receive
protection'.
[16] In Abrahams v Minister of Police 2018 (7K6) QOD 456
(ECG) the plaintiff was detained under similar circumstances
than the plaintiff in casu. The cell was overcrowded and dirty
and he had no access to his family. He was in custody for
approximately 24 hours and awarded R120,000.00.
[17] In Minister of Police v Murray/Murray v Minister of Police,
VII, K6 -237; 2016 (7K6) QOD 237 (WCC) the plaintiff was
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detained for 67 hours and was awarded R15,000.00 for the
unlawful arrest and detention.
[18] In Shongwane v Minister of Police , VIII, K6 -423; 2024
(8K6) QOD 423 (NMW) the plaintiff was awarded an amount
of R21,000.00. The plaintiff was bullied by older cell mates in
the filthy police cell which left him traumatised and caused
anguish. The plaintiff was released after 14 hours' detention.
He discontinued his studies after the incident as he lost
interest in various things and opted to isolate himself. He
continued to receive psychological assistance.
[19] In Cilliers and others v Minister of Safety and Security ,
VIII, K6 -369; 2024 (8K6) QOD 369 (GSJ) [unlawful
deprivation of freedom for one day] and was awarded
R103,000.00 per plaintiff . The first and second plaintiffs
were not allowed to take their prescribed medication. He
suffers from hypertension and she is diabetic. All three
plaintiffs described the humiliating and degrading treatment
received as traumatic, impacting on their psychological
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wellbeing and dignity. The charges were eventually
withdrawn against the plaintiffs.
Analysis
[20] Taking into consideration all the abovementioned factors, I
hold the view that an amount of R40,000.00 (Forty Thousand
Rand) would be a fair and reasonable amount of
compensation to the plaintiff.
[21] In my view, an amount of R40,000.00 would achieve the
purpose of “ balance(ing) the premium placed on the right of
liberty and human dignity, whilst avoiding extravagance in
compensating for loss of liberty ” as found by Petersen J in
the abovementioned Mbata matter.
[22] The plaintiff should therefore be awarded an amount of
R40,000.00 to be paid by the defendant, as compensation for
the unlawful arrest and detention.
Costs
[23] The general principle is that the successful party is entitled to
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its costs.
[24] I find no reason to deviate from the general principle.
[25] The defendant should be ordered to pay the cost of the
plaintiff.
[26] The emotional torment of the plaintiff cannot be
underestimated.
Order
In the premise, I make the following order:
i) The defendant is ordered to pay to the plaintiff the amount of
R40,000.00 (Forty Thousand Rand) in compensation for the
unlawful arrest and detention on 30 July 2014.
ii) The defendant is ordered to pay the costs of the plaintiff on a
party and party scale.