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
LIMPOPO DIVISION, POLOKWANE
Case: 5702/2018
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES
(3) REVISED: Yes
DATE: 20 October 2025
SIGNATURE:
In the matter between:-
F[...] M[...] M[...] PLIANTIFF
AND
MINISTER OF POLICE DEFENDANT
This judgment was handed down electronically by circulation to the parties'
legal representatives by e -mail. The date and time for hand down of the
judgment is deemed to be 20 October 2025 at 10:00 am.
JUDGEMENT
Mashifane AJ.
1. The plaintiff broug ht a claim for damages against the first and second
defendant alleging in his particular of claim that on 19 November 2015 and at
Seshego the second defendant, acting within the scope of his employment with the
first defendant, unlawfully arrested and detained him.
2. The defendants defended the action and raised a special plea of
noncompliance with Section 3 of the Institution of Legal Proceedings Against
Certain Organs of State Act 40 of 2002. At the commencement of the trial, the
defendants abandoned their special plea. In their plea to the plaintiff's claim, the
defendants pleaded they have no records of the plaintiff being arrested and detained
by any police official on the date mentioned in the particulars of claim.
3. The plaintiff was the first t o testify and called two more witness. The
defendant called no witness. He testified that on 19 November 2015 was walking in
Luthuli when suddenly a group of people attacked and assaulted him on allegations
of theft. They took him to his home while still t here the police arrived and took him to
the police station. Upon arrival at the police station, he was detained in police cell
together with adult inmates and made his first appearance at Court after three days.
He was then placed at Bosasa place of safety.
4. During his detention at the police station, he complaint of being in pain
because of the assault but he was not assisted. Two of the adult inmates raped him
and every time they were to use the toilet, he was instructed to hold a blanket as if is
curtain to shield them from being seen by other inmates. The rape incident was
reported to the second defendant and his reply was that the plaintiff was crazy.
5. The next witness for the plaintiff was Dr Jabu Mokwena, a Clinical
Psychologist who testified th at on 14/09/2016 and19/10/2016 acting on instructions
from the plaintiff's attorneys he assessed the plaintiff and prepared a medico legal
report. His findings were that sexual assault on the plaintiff resulted in psychological
disturbance on his overall psychological well -being. He showed symptoms of
disturbance on his overall psychological well -being. He showed symptoms of
Dysthymic Depression, and was likely to develop a post traumatic stress disorder.
He was also likely to develop self -esteem issues and problems with intimacy in a
relationship in future if psychological int ervention was not sought. He recommended
that he be referred to physician and the neurologist for further assessment.
6. Eric Mbombi a 55 year old adult male was called as the last witness for the
plaintiff. He testified that he is residing at Luthuli Park in Seshego. During the month
of November 2015 he was at home when he heard people coming through the
passage shouting "thief-thief". He went out of his yard and noticed that the group
was assaulting the plaintiff. He knew plaintiff as they were residing in the same street,
four houses away from each other.
7. He went closer but stood a distance away and he heard the cro w saying that
they were going to burn the plaintiff's parental home. He saw a police bakkie coming
at the high speed and the group dispersed. Two police officers enlighten from the
bakkie and took the plaintiff, locked him at back of the bakkie and drove-off.
8. In his testimony the plaintiff referred to the copy of the charge he discovered
and produced which was then admitted as evidence. According to the charge sheet
the person arrested was the plaintiff, his date of arrest was 26 November 2015 under
Seshego Cas number 700/11/2015 and made his first appearance on 30 November
2015. The second defendant appears as the investigating Officer.
9. In his the oral submissions that counsel for the plaintiff argued that despite the
difference on the date of arres t as per plaintiff's particulars of claim, oral evidence
and the charge sheet the court should find that the plaintiff was arrest and detained
and that such arrest and detention was unlawful. He submits that the pleading reads
on or about 19 November 2015 and that covers the date of 26 November 2015.
10. On contrary it was argued on behalf of the defendants that in their plea the
defendants specifically denied arrest and detention on the date mentioned in the
plaintiff's particulars of claim and that pla intiff armed with documentary evidence
failed to amend his pleadings before and during the trial and for these reasons the
plaintiff's claim must fail.
plaintiff's claim must fail.
11. The plaintiff pleaded and testified that he was arrest on the 19 of November
2015 but his documenta ry evidence in the form of a charge sheet shows the date of
arrest and detention as 26 November 2015. The defendant on the other hand denied
the arrest of the plaintiff and detention on the pleaded date and called no witnesses.
The issue before this Court is whether despite the self -contradictory evidence of the
plaintiff and without the pleadings being amended can the Court accept a particular
date as the correct date of arrest and hold the defendant liable to compensate the
plaintiff for his arrest and detention.
12. It is also tried that it is impermissible for the party to plead one case and at the
trial attempt to prove the other, but each case should be determined on its own
merits. As I have indicated the only issue before the Court is whether to acc ept the
proven date as the date of arrest and this calls for the court to exercise its judicial
discretion.
13. To properly exercise its discretion, I propose that the followings issues should
t be determined first:
a. Whether the evidence prove arrest a nd detention of the plaintiff on
specific date.
b. The nature, reliability and credibility of the evidence independently
proving the date of arrest.
c. Whether the plaintiff deliberately misdirected the Court.
d. Will the acceptance of the proven date as the correct date of arrest
result with any prejudice to the defendant, and
e. Any other factor which in the opinion of the Court is relevant.
14. The defendants do not deny the arrest but date. The charge sheet shows that
the plaintiff was arrested on 26 November 2015 and that Warrant officer Dikgale
from Seshego Police Station was assigned to investigate the case. The charge sheet
was discovered and produced by the plaintiff and form part of the trial bundle. It was
therefore made available to the defendants in advance as one of the documents
intended to be used during the trial. The documentary evidence in the form of a
charge sheet is the most reliable evidence which on balance of probabilities prove
the correct date of arrest.
15. I find no reason to believe that the plaintiff deliberately misled the Court on the
date of arrest and detention. At the time of his arrest and detention the plai ntiff was
still a minor and he testified more than nine years from the date of arrest. The
plaintiff initially testified that he was arrested by 23 November 2015 and through the
questions from his counsel, he conceded that the correct date is the date as p er
pleadings. There is nothing that he would have gain as an advantage to his case in
mentioning the wrong date.
16. The question is whether in accepting the date as per charge sheet will the
defendant suffers any prejudice. To fairly answer the question the Court must
determine if the defendants were aware or ought to have been aware of the correct
date of arrest. I find that litigation history of this matter plays a vital role in
determination of this issue. During the discovery stage the plaintiff issu ed notice in
terms of Rule 35(1) of the Uniform Rules calling upon the defendant to discover
under oath documents relating to any matter in the action whether arising between
the plaintiff and defendant. The defendants served and filed a discovery affida vit
without the first schedule in which the defendants were supposed to list documents
they intend to use during the trial.
17. The plaintiff proceeded in terms of Rule 35 (3) (6) of the Uniform Rules to
request for inspection of the of the following docu ments: - (1) pocketbook of
detective Dikgale dated 26 to 30 November 2015, (2) SAPA 14A ( Notice of
Constitutional rights), (3) occurrence book of Seshego Police Station dated between
26 and 30 th November 2015, (4) Cell register of Seshego police station a nd (5)
Police docket under Cas No:" 700/11/2015, and (6) court case No:C847/15.
18. When the defendants failed to make available the above -mentioned
documents the plaintiff launched an application to compel the compliance and on 15
February 2022 the Court ordered the defendants to comply with the plaintiff's notice
in terms of Rule 35(3) and (6). In March 2022 the defendants filed an affidavit in
which they averred that they were not in possession of requested documents and
which they averred that they were not in possession of requested documents and
that their whereabouts were unknown.
19. The litigation background of this matter does not convince me that the
defendant was unaware or may not have been aware of the correct date of arrest of
the plaintiff. The plaintiff mentioned in full details of the documents he believed to be
in possession or control of the defendants and with that information the defendant
ought to have been aware of the date of arrest. There appears no risk of prejudiced
against the defendants, the claim had not prescribed as at the date of institution of
the action and it is not their defence that they will suffer prejudiced.
20. This Court considers that this matter involves the arrest and detention of a
minor child in a manner that violated his Constitutional rights. In every matter that
involves the child his or her interest are of paramount importance. It is for these
reasons that I believe the court faced with date of arrest being the only issue in
dispute should guard against rejecting the plaintiff's claim unless it is proven that
there is a likelihood that the acceptance of the none pleaded date of arrest would
result with a prejudice to the defendant's defence. I therefore accept that the plaintiff
was arrested by the second defendant on 26 November 2015 and detained until 30
November 2015.
21. The arrest by its nature is prima facie unlawful in that it violates the person
Constitutional right to the freedom of movement and that basis that once the arrest
has been proven or accepted the duty to proof its lawfulness rest on the defendant.
The defendant did not plead justification for the arrest of the plaintiff or tender
evidence to that effect. In addition to the detention becoming automatically unlawful
once the arrest is found to be unlawful the detention of the plaintiff with adult persons
comes as a double sword against the defendants.
22. It is trite that the onus rests on a defendant to justify an arrest. Rabie CJ, as
he then was, explained in Minister of Law and Order v Hurley 1986 (3) SA 568 (A)
at 589E -F. " An arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems fair and just to require that the person who
arrested or caused the arrest of another person should bear the onus of proving that
arrested or caused the arrest of another person should bear the onus of proving that
his action was justified in law."
23. In Duncan v Minist er of Law and Order for the Republic of South Africa
(Duncan) [1986] 2 All SA 241 (A); 1986(2) SA 805 (A) at 818F -H. it was held that
an "arrest without a warrant would be justified as envisaged ins 40(1)(b) of the CPA if
the following jurisdictional facts were present: (i) the arrestor must be a peace-officer;
(ii) the arrestor must entertain a suspicion; (iii) the suspicion must be that the suspect
(the arrestee) committed an offence referred to in Schedule 1; and (iv) the suspicion
must rest on reasonable grounds. The learned Judge of Appeal stated further that 'If
the jurisdictional requirements are satisfied, the peace officer may invol ve the power
conferred by the subsection; ie, he [or she] arrest the suspect. In other words, he [or
she] then has a discretion as to whether or not to exercise t hat power (cf Holgate -
Mohamed v Du ke [1948] 1 All SA ER 1054 (HL) at 1057). No doubt the discretion
must be properly exercised. But the grounds on which the exercise of such a
discretion can be questioned are narrowly circumscribed."
24. The above -mentioned jurisdictional requirements are the defences available
to the defendant which the defendant must plead and proof. In this matter the
defendant preferred to plead a bare denial and even after having heard the evidence
of the plaintiff and his witnesses did not call or present any evidence to justify the
arrest. The detention of the plaintiff with adult inmates was unlawful as it is prohibited
by the Constitution.
25. The evidence as per the plaintiff and his eyewitness strongly suggest that at
the time he was apprehended the police were rescuing him from the angry members
of the community who were assaulting him. I am however convinced that shortly
thereafter a decision to arrests him was made and for that reason he was detained in
the police cell with other awaiting trial offenders.
QUANTUM
26. The plaintiff testified that at the time of his arrest he was being assaulted by
the members of the community. I do not think that this conduct of him being arrested
in the presents of the members of the commun ity would have embarrassed him. I
find that under the circumstances of this case immediate and adequate intention of
the police at that stage which was to rescue him from the angry mob.
the police at that stage which was to rescue him from the angry mob.
27. At the time of his arrest and detention the plaintiff was still a minor aged 15
years. He was detained with adult inmates, and they sexually assaulted him. His
attempts to lodge a complaint with the second defendant were ignored or washed
away as nonsensical. Once the police take into their custody any person and for
whatever reason, they assume the responsibility to care, defend and protect him or
her. The protection includes detaining him or her in cell which should be considered
less dangerous guided by his or her age, the offence he or she is facing and whether
is a first or repeated offender.
28. Section 28 (1) (g) of the Constitution Act 108 of 1996 provides that a child has
right not to be detained unless as a measure of last resort, in which case, in addition
to the rights the child enjoys under section 12 and 35, the child may be detained only
for a short period of time, and has the right to be kept separately from detained
persons over the age of 18 years.
29. In Raduvha v Minister of Safety and Security and Another [2016] ZACC
24; 2016 (2) SACR 540 {CC) at p ara 4 the Constitutional Court found the detention
of a child to be unlawful in that it was in violation of her above mentioned
constitutional rights. The second defendant turned a blind eye on the plaintiff's
constitutional rights as child and even when requested for assistance he chose to
ignore the fact t that the child wellbeing was in danger.
30. In his book " Potgieter {et al), Visser & Potgieter: Law of Damages (Juta,
3rd edition, 2012), Potgieter made the following observations: "In deprivation of liberty
the amount of satisfaction is in the discretion of the court and calculated ex aequo et
bona. Factors which can 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 (e.g. solitary confinement or humiliating nature) of the
deprivation of liberty; the status, standing, age, health and disability of the plaintiff;
the extent of the publicity given to the deprivation of liberty; the presence or absence
the extent of the publicity given to the deprivation of liberty; the presence or absence
of an apology or satisfactory explanation of the events by the defendant; awards in
previous comparable cases; the fact that in addition to physical freedom, other
personality interests such as honour and good name as well as constitutionally
protected fundamental rights have been infringed; the high value of the right to
physical liberty; the effects of inflation; the fact that the plaintiff contributed to his or
her misfortune; the effect an award may have on the public purse; and, according to
some, the view that the actio iniuriarum also has a punitive function."
31. In Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA) Bosielo
AJA held that: "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 th e 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 iniuria with any kind
of mathematical a ccuracy. 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."
32. What informs the awarding of damages for unlawful arrest and detention is
the constitutional right to the freedom of movement and security of the plaintiff as a
person which should be jealously pro tected. Every person has the right not to be
deprived of freedom arbitrarily or without just cause. It is for this reason that an
award for damages should express the importance of the constitutional right to an
individual's freedom.
33. Far and above t he fact that the plaintiff was a child, his detention and
experience of being sexually abused by the inmates left him with long term
psychological injury. He testified about this ordeal nine years after the incident but
psychological injury. He testified about this ordeal nine years after the incident but
even during his testimony he could n ot contain himself when asked about what he
experienced in the police cell. He was generally subjected to a humiliating treatment
which by exercise of reasonable care the second defendant or any other police
officer who participated in his detention of should have been avoided.
34. The plaintiff claimed an amount of R 800 000.00 as compensation for his
general damages and the same amount was argued on his behalf. On the other
hand, the counsel for the defendants argued that the medico legal report has no
bearing on the case in that it does not have the date of arrest or sexual abuse and
therefore in the event this court finds it necessary to compensate the plaintiff he
proposed the sum of R100 000.00.
35. Having accepted that the plaintiff was arrested on 2 6 November 20151 do not
find it necessary to take the argument about the absence of the date on the medico
legal report any further than to say the report was compiled at the instant and
request of the plaintiff and is relevant to the case at hand.
36. I have found that the plaintiff was unlawfully detained from 26 to 30 November
2015 which amounts to four nights in custody. There is no reason why he was not
brought to court on Friday the 27 of November, which was the first available court
day following th e day of his arrest. His detention was therefore unnecessarily
prolonged and that is an act of malice.
37. In conclusion, and before I pronounce the amount of compensation, I find it
necessary to comment on the manner in which the plaintiff's legal repre sentatives
handled his claim. It is expected of practitioners to take every step reasonably
possible to ensure that they have correct instructions or information. Our rules allow
for amendment of pleadings at any stage of the proceedings before judgement. I find
no reason why the plaintiff's attorneys served and filed a charge sheet which provide
for a different date of arrest and yet failed to amend the plaintiff's particulars of claim.
His counsel too was not helpful either. It was apparent throughout the trial that the
only issue in dispute was the date of arrest and still did not consider amendment of
the pleadings, instate he wanted to argue against the documentary evidence he
produced as evidence.
produced as evidence.
38. In determining the appropriate compensation, I hav e considered the plaintiff's
age at the time of his arrest and detention, the conditions under which he was
detained and that he was raped by the inmates, the psychological injury he suffered
and continues to suffer as a direct result of his detention and the unreasonable
prolonged period of detention and finds the first defendant liable to compensate the
plaintiff in the amount R600 000.00.
39. There is no reason why I should deviate from the general principle that cost
should follow the order and make the following order.
1. The first defendant is ordered to pay the plaintiff the sum of
R600.000.00 as compensation for his unlawful arrest and detention with
interest calculated at the rate of 10.50 % per annum calculated from the date
of judgment until the date of final payment of the capital amount.
2. The costs of suit on party and party scale B with interest calculated at
the rate of 10.50 per cent per annum allocator. calculated from 30 days from
the date of
RS Mashifane
Acting Judge of the High Court
Limpopo Division, Polokwane
APPEARANCES
For the plaintiff
Adv JM Letsoalo: Instructed by L Molepo Inc Attorneys
And
For the defendant
Mr. TA Masethe : State Attorney, Polokwane
Date of trial 24-25/04/2025, and 24/06/2025
Date of Judgment 20/10/2025