1
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2021-53475
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE SIGNATURE
In the matter between:-
LIESCHEN MECKAYLER ROBIN CARELSE Plaintiff
and
THE MINISTER OF POLICE Defendant
JUDGMENT
Mfenyana J
[1] This is a claim for damages arising from the alleged unlawful arrest and
18/11/2025
2
detention of the plaintiff. On 3 March 2021, the plaintiff was arrested by
employees of the defendant after she presented herself at their offices. On 4
March 2024, the plaintiff appeared in court, and the matter was postponed for
further investigation.
[2] The plaintiff alleges that members of the South African Police Service
(SAPS) unlawfully arrested her without a warrant. She further avers that after her
arrest, she was unlawfully detained at the holding cells in Sophiatown Police
Station and thereafter at the holding cells in the Johannesburg Central
Magistrates’ Court until 4 March 2021. She contends that as a result of her arrest
and detention, she suffered injury to her privacy, dignity, contumelia, emotional
stress, shock and trauma consistent with post -traumatic stress and will in future
suffer from post -traumatic stress. She claims damages in the amount of R500
000.00.
[3] When the trial was called, there was no appearance on behalf of the
defendant. The matter, thus, proceeded on a default basis in accordance with the
provisions of Rule 39(1) of the Rules of this court . Earlier in the day, before the
commencement of the trial, counsel on behalf of both parties attended at
chambers for the purpose of introducing themselves, in keeping with tradition. Ms
Maimane, who appeared on behalf of the defendant , indicated t hat she was
double-briefed and that she would seek postponement of the matter . Having
established that the issue had not been discussed with Ms Mandizha, on behalf of
3
the plaintiff, I directed Ms Maimane to confer with Ms Mandizha.
[4] Both counsel thereafter left the chambers. On resumption of the matter, Ms
Maimane was not in court. On enquiring from Ms Mandizha, I was advised that Ms
Maimane had indicated that she would attend to her other matter in order to
remove it from the roll. Ms Maimane did not return to court and remained absent
for the duration of the trial.
[5] In cases of unlawful arrest and detention, it is trite that once a plaintiff
proves that an arrest and detention occurred, the burden shifts to the defendant
to prove that the arrest was lawful. This is so because any deprivation of liberty is
presumed unlawful. It is for the defendant to rebut the presumption by proving
justification for the arrest.
[6] The arrest and detention in this matter is common cause having been
conceded by the defendant during the pretrial conference. The defendant denies
that the arrest was unlawful. However, i n the absence of a rebuttal from the
defendant, it is presumed that the arrest and detention was unlawful and the
defendant has failed to discharge the onus which rests on it. No onus rests on the
plaintiff in this regard.
[7] The defendant further challenged the time of the arrest, the duration of the
detention and the quantum. The plaintiff gave two versions of the time she was
4
arrested. In the pretrial minute, it is recorded that the plaintiff was arrested at
06h00 on 3 March 2021 and released at 13:30 on 4 March 2021. The record in the
pretrial minute is that this was disputed by the defendant, who contended that the
plaintiff was arrested at 09h00 on 3 March 2021 and released at approximately
09:55 the same day.
[8] In her testimony, the plaintiff stated that she went to the police station
between 07h30 and 08h00 on 3 March 2021, after which she was released at 13h00
and instructed to go to court the following day. The plaintiff contradicted herself
in this regard . Even in the absence of any evidence from the defendant, t he
plaintiff’s contention that she went to the police at 06h00 is improbable in light of
her own evidence (contradicting herself), coupled with the record of the pretrial
minute. It is therefore probable that she was arrested at 09:00.
[9] The plaintiff ’s allegation that she was detained on 4 March 2021 is
unsubstantiated and improbable. Her evidence was that she was released on 3
March 2021 and instructed to attend court on 4 March 2021. On 4 March 2021, she
attended court and the case was postponed. The claim for damages relative to the
detention on 4 March 2021 is not supported by the evidence.
[10] In respect of quantum, the court should have regard to the manner in which
the arrest was carried out, the length of the detention, the personal circumstances
of the plaintiff, the conditions in which the plaintiff was kept and any factors which
5
may have a bearing on the plaintiff’s arrest and detention. The list is not
exhaustive, and the specific facts of each matter will play a role in the
determination.
[11] In Minister of Safety and Security v Tyulu , Bosielo AJA noted 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 the right to personal
liberty and the seriousness with which any arbitrary deprivation of personal
liberty is viewed in our law.”
[12] The conditions under which the plaintiff was arrested in the present matter,
are relevant to the determination of quantum. She testified that she went to the
police station after her mother told her that the police wanted to see her. She
proceeded thereto fully dressed in her school uniform. She avers that being
arrested in her school uniform caused her embarrassment. This is an election she
made. Moreover, she makes no mention of the manner in which she was arrested,
save to state that the holding cells were dirty and that water was leaking from the
toilet.
[13] In Minister of Safety and Security v Seymour1, Nugent JA put it aptly when
1 2007 (1) All SA 558 (SCA).
6
he noted that:
"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 o ther courts have considered to be
appropriate, but they have no higher value than that"2.
[14] In Diljan v Minister of Police 3, in awarding R120 000.00 arrest and
detention of three days, the SCA noted as follows:
“…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 pra ctice of claiming unsubstantiated and
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 each 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.”4
[15] The above award works out to R40 000.00 per day. I must also consider the
time val ue of money and t hat Diljan was decide d in 2022. At R500 000.00, the
plaintiff’s claim is exorbitant and grossly out of kilter with the facts of this matter,
the condi tions of the plainti ff’s arrest as admitted by her, the duration of the
detention in her own words and the wealth of previous decisions from which this
court takes guidance. It is a textbook example of an amount that has been thumb-
2 Ibid, para 17.
3 (746/2021) [2022] ZASCA 103 (24 June 2022).
4 Ibid, para 20.
7
sucked and over-inflated. Her own evidence, as presented to this court, shows that
she was arrested at 09:00 on 3 March 2021 and released at 13:00 on the same day.
In the circumstances , an amount of R 7 667.00 (seven thousand six hundred and
sixty seven rand ) is fair and reasonable.
[16] The general rule is that costs follow the result. I cannot find any reason to
deviate from this established rule.
[17] In the result, the following order issues:
a. The arrest and detention of the plaintiff on 3 March 2021 were
unlawful.
b. The defendant is liable for payment of the plaintiff’s damages arising
from her unlawful arrest and detention in the amount of R7 667.00
(seven thousand six hundred and sixty seve n rand), with interest at
the prescribed rate, from date of judgment to date of payment.
c. The defendant shall pay the costs of suit on a party and party scale
on the Magistrates’ court tariff.
S MFENYANA
Judge of the High Court
Johannesburg
8
This judgment was handed down electronically by circulation to the parties’
representatives by email and by uploading the judgment onto Caselines. The date
of handing down of the judgment is deemed to be 18 November 2025.
Appearances:
For the Plaintiff:
Counsel: HR Mandizha
Instructed by: Bessinger Attorneys
For the Defendant:
Counsel: K Maimane (failed to appear)
Instructed by: State Attorney, Johannesburg
Date of hearing: 20 May 2025
Date of judgment: 18 November 2025