IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 750/2022
In the matter between:
LESOALE SOLDAAT KALAKE Plaintiff
and
THE MINISTER OF POLICE Defendant
Neutral Citation: Kalake v Minister of Police (750/2022) [2025] ZAFSHC 354
(13 November 2025)
Coram: Opperman J
Heard: 5-6 March 2024, 23 July 2024, 16 September 2024, 26
November 2024 & 15 April 2025
Delivered: The judgment was handed down electronically by circulation to
the parties’ representatives by email and released to SAFLII. The date and time for
the hand-down is deemed to be 13 November 2025 at 15h00.
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Summary: Delict – unlawful arrest and detention – assault by members of
the South African Police Services – damages to and loss of property while in police
custody – quantum – damages.
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__________________________________________________________________
ORDER
__________________________________________________________________
1 The defendant is liable for damages suffered by the plaintiff for unlawful
arrest, detention and assault.
2 The defendant is ordered to pay the plaintiff an amount of R180 000.00 (one
hundred and eighty thousand rand) in respect of the plaintiff’s claim for unlawful
arrest, detention and assault.
3 The defendant is ordered to pay interest on the amount in para 2 at the
applicable rate of interest calculated from the date of service of the summons to the
date of final payment.
4 The defendant is liable to compensate the plaintiff for the loss of the
following items:
4.1 A RS Pro 84-piece toolbox and set.
4.2 Seven collectors’ R200 notes.
4.3 A canister containing mercury.
4.4 A 1965 silver R1.00 coin and a 1965 silver 50 cent coin.
4.5 A Makita Drill HR4002.
4.6 A container wherein coins and notes were stored.
4.7 A collectors’ 1931 3 rd ‘tickey’ coin.
4.8 A Nokia Cellphone and a memory stick.
5 The defendant is liable to compensate the plaintiff for the damage caused to
his vehicle as proven.
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6 The quantum of damage pertaining to paras 4 and 5 is to be proven in due
course as separated and the matter is postponed to the Pre-Trial Roll, 23 February
2026 at 14h15.
7 The defendant is to pay the costs of the trial on a party and party scale to be
taxed on scale B. Costs to include the drafting of heads of argument. The costs of
travelling and accommodation of the plaintiff and his witnesses are referred to the
Taxing Master. All costs reserved are unreserved and to be paid by the defendant.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
Opperman J
Introduction
[1] On 10 August 2021, the plaintiff was taken into custody by the South African
Police Service (SAPS), and some personal property belonging to the plaintiff was
allegedly seized, damaged and lost during the incident due to the conduct of the
SAPS. The arrest occurred while he was travelling from his residence in Pretoria
to his family home in Senekal. The incident took place in Bethlehem. He was
arrested for the alleged illegal possession of a hazardous substance without a
licence. The substance was apparently silver mercury. On 12 August 2021, he was
transported in custody to the Bethlehem Court but released without appearing in
court. All charges were withdrawn against the plaintiff by the prosecuting authority.
[2] The plaintiff instituted action against the defendant for the following:
(a) Claim 1: Unlawful arrest and detention.
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(b) Claim 2: Assault.
(c) Claim 3: Damage to the plaintiff’s vehicle and/or alternatively theft or loss
of the plaintiff's property.
[3] At the onset of the trial, the defendant formally conceded that silver mercury
is not listed as a hazardous substance in terms of the Hazardous Substances Act
15 of 1973 (Hazardous Substances Act). Although the defendant offered only a bare
denial regarding the matter of arrest and detention, it was ultimately acknowledged
in curia that both the arrest and the two-day detention were unlawful. The quantum
now lies for adjudication.
[4] The parties agreed to address the quantum of alleged damages to the
plaintiff’s vehicle and the quantum related to items reported missing from the
plaintiff’s possession separately. These issues were formally ordered separated in
terms of rule 33(4) of the Uniform Rules of Court.
[5] During the argument of the matter, counsel for the plaintiff conceded that the
ownership of the Kruger Rand that is alleged to be stolen was not proven by the
best evidence available. The plaintiff only had a photo of the coin introduced into
evidence, notwithstanding his averment that he had verification of purchase. He
did not supply it to his legal team or court and neglected to do so until now. The
ownership and existence of said coin have not been proven.
Dispute
[6] In sum, the following issues are in dispute:
(a) The damages award for plaintiff’s claim for unlawful arrest and detention.
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(b) The merits of the assault, and if liability should follow, the damages award
for said assault.
(c) Damage to the vehicle whilst in the care of the defendant and the liability
and nature thereof.
(d) Whether the items claimed by the plaintiff were in the vehicle and lost whilst
in the care of the defendant, and whether the defendant carries the liability therefor.
[7] I will first and foremost portray the evidence adduced at trial. The case for
the plaintiff consisted of the viva voce evidence of the plaintiff, Lesoale Soldaat
Kalake (Mr Kalake), Lucky Sizwe (Mr Sizwe), Doctor SZ Molatolisi and one
Mrs Malephane. The plaintiff handed in numerous exhibits.1 The Minister of Police
(defendant) called one witness, Tseko Moss Nkomo. The pleadings will be noted
and each issue, along with the applicable law, will be addressed individually
hereafter.
Summary of the evidence
Plaintiff’s case
Mr Lesoale Soldaat Kalaka
[8] Mr Kalake, aged 42 was, at the time of his testimony, employed as a business
analyst. Following the completion of grade 12, he earned a BSc degree in Computer
1 Exhibit A: Cover of the docket (Handed in by agreement between the parties)
Exhibit B: Certificate of registration of the motor vehicle as proof of ownership (Handed in by agreement between
the parties)
Exhibit C: Statement by the plaintiff dated and commissioned on 24 December 2024 (Handed in by agreement
between the parties)
Exhibit D: Proof of ownership of mercury: receipt of sale. (Handed in by agreement between the parties)
Exhibit E: E1 to E41 photos of property claimed (Handed in by agreement between the parties)
Exhibit F: SAP 13 register.
Exhibit G: Indemnity form for the vehicle.
Exhibit H: J88, Medical – legal examination report.
Exhibit I: Vehicle Seizure Statement
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Science and Statistics in 2004. He subsequently obtained an honours degree and a
master's degree. At the time of his testimony, Mr Kalake was pursuing a PhD.
[9] The canister with the mercury, that caused the consternation, arrest and this
case, was in his possession for the purpose of his PhD studies. He knew and realised
that he did not have to have any special authority to possess the mercury and did
explain it to the officers on the scene. They claimed that they embarked on the
operation because they were looking for illegal drugs and firearms supposedly in
the possession of the plaintiff.
[10] The arrest happened on 10 August 2021, whilst the plaintiff was parked at
the Sechaba Mall in Bethlehem at around 20h30 in front of the Engen Garage after
traveling from his home in Pretoria. He was on his way to visit his parents’ house
in Senekal. Two passengers accompanied him. The reason for stopping at this
location was to drop off the two passengers.
[11] Prior to departing from his home in Pretoria, the plaintiff met with his friend,
Mr Lucky Sizwe, who accompanied him on the journey to Vanderbijlpark. After
Mr Sizwe disembarked at Vanderbijlpark, the plaintiff continued further and picked
up two additional passengers needing a lift to Bethlehem.
[12] At the scene of the arrest, the plaintiff was ordered by the SAPS to get out
of his vehicle. When he enquired as to what was happening, a police official opened
the plaintiff’s door (he was the driver) and forcefully grabbed him and ordered him
to lie on the ground. The SAPS member used his knee to press the plaintiff to the
ground and he then handcuffed him. The SAPS member pulled the plaintiff into a
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standing position; grabbing and using the handcuffs already placed on his wrists to
do so. He was violently pushed against his vehicle.
[13] The plaintiff was informed that his vehicle will be searched for firearms and
drugs by a Sergeant Mogasi. He commenced the search without the permission of
the plaintiff. The container containing silver mercury was located on the backseat.
To reiterate, the plaintiff explained that he was allowed to be in possession hereof,
without any permit needed, and explained that he bought the mercury for research
purposes pertaining to his PhD. The purchase invoice (Exhibit D) was in the
plaintiff’s pocket.
[14] The search continued and members of the defendant placed some items
found in the vehicle on the ground. These items included a drill and a toolbox.
When the plaintiff complained about damage caused there and then to his vehicle
because of their conduct during the search, he was pushed to the ground again and
kicked against his head with the SAPS officers proclaiming that he thinks he is
clever. Plaintiff was slapped in his face when he was confronted with his proof of
purchase for the mercury stating that it was fake.
[15] One Motlaung arrested the plaintiff, placed him in a police vehicle, and took
him to the Bethlehem police station. The plaintiff saw his vehicle and property
remained at the garage under control of the SAPS members. At the station, Officer
Magesane issued the plaintiff a ‘Notice of Rights’, indicating that the plaintiff was
being detained for possession of mercury in violation of the Hazardous Substances
Act.
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[16] Mr Kalake’s difficulties persisted upon arrival at the police station, where he
was ‘processed’ and placed in a cell. He reported his concerns regarding the
treatment received, including an allegation of assault, to the officers on duty;
however, they declined to record an assault charge. The plaintiff stated that the cell
contained about 19 to 22 inmates during the Covid-19 pandemic. Protective masks
were not supplied, toilets were inoperative and a bucket system was implemented.
Some inmates had vomited on the floor, there was no access to running water, and
the blankets available were unclean and unusable. The buckets became fuller as
they had to use it, and it was unbearable. Additionally, the plaintiff was denied the
opportunity to phone his legal representative or family. He remained in the cells
for two nights prior to being brought before the court.
[17] At court, around 16h00, two days after his arrest, following a decision by the
prosecutor, the plaintiff was returned to the police station and then released. At the
station, the plaintiff received his wallet and shoelaces. When he asked about his
vehicle, he was told it had been taken to the defendant’s impound yard in
Bloemfontein.
[18] The plaintiff, not feeling well, consulted a doctor the following day and
complained of ‘scratches and cuts’ to his skin, as well as chest and ribcage pains.
The attending doctor completed a J88 form (Exhibit H) which plaintiff submitted
when opening a case of assault against members of the defendant (Exhibit A and
Exhibit C of the Assault Docket). The J88 was also provided to Mr Sefate from the
Independent Police Investigative Directorate (IPID). The J88 report confirms some
injuries.
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[19] Crucial is that the last witness in the case for the plaintiff confirmed the
assault on the plaintiff. She testified that the plaintiff was kicked when he was on
the ground. She was also slapped. She realised he was assaulted because she heard
him ask why they were beating him.
[20] The vehicle was not returned until 16 September 2021 because the defendant
refused to release it until the prosecutor had officially withdrawn the charges
against the plaintiff (proof of ownership was provided as Exhibit B). The vehicle
incurred substantial damage during the period it was in the defendant's possession.
This included damage to the bumpers and body panels, side mirror, the battery
being replaced with an older one, and the tyres being swapped for older, inferior
ones.
[21] The plaintiff’s uncontested testimony is that one Captain Mofokeng told him
he had to sign a release form (Exhibit G, the indemnity form) before he could view
or access his vehicle. The plaintiff referred the Court to photographs taken by him
on his cellphone of the damage to the vehicle after said was released to him. These
photographs were accepted into evidence as exhibits E1 to E41.
[22] The evidence as to the damage was corroborated by Mr Sizwe. Upon
questioning by the Court as to the condition of the plaintiff’s vehicle, Mr Sizwe
stated that he saw the vehicle 5 to 6 weeks after the incident. He testified that the
vehicle was damaged and not in the same condition as when he was a passenger on
the day of the arrest. He referred to damage to the bumpers, the mirror, dents and
interior damage which were not present on 10 August 2021.
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[23] The damage caused to plaintiff’s vehicle whilst in possession of defendant
was depicted in, specifically, the photographs as per E4, E16 to E38. The plaintiff
included the damages and missing items in his report to Captain Essau and
Warrant Officer Dhlamini in the case opened against members of the defendant.
He described the damage in detail during his viva voce testimony. Captain Smith
informed the plaintiff that, since there were no cameras monitoring the area where
the plaintiff's vehicle was stored in the impound yard, the investigation and case
would be closed.
[24] The evidence of the plaintiff shows that the following items were in the
plaintiff’s vehicle before the search and seizure and were not subsequently returned
to the plaintiff:
(a) A RS Pro 84-piece toolbox and set as depicted on exhibit E1.
(b) Seven collectors’ R200 notes as per exhibits E2 and E3.
(c) A canister containing mercury.
(d) A 1965 silver rand coin and a 1965 silver 50 cent coin: Exhibits E8, E40 and
E41.
(e) A Makita Drill HR4002: E9, E10 and E11.
(f) Case wherein coins and notes were placed.
(g) A collectors’ 1931 3rd tickey cent: E14 and E15.
(h) A Nokia Cellphone and a memory stick (As recorded in the SAPS 13 register
in the case docket).
[25] The plaintiff testified that he planned to store his valuable coin collection,
that consisted of some inherited pieces, at his parents’ home for safekeeping before
traveling to China for his studies. He had hidden the coins and notes in a blue coin
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box located next to the driver’s seat in his vehicle in the consol. It is important to
note here that the only proof he had and the best evidence to ownership is the
evidence that he collected the coins and accumulated it by inheritance and
exchange with other collectors. His friend that testified later, Lucky Sizwe,
confirmed the box with the coins was in the consol in the car. He slept over at the
plaintiff’s house the evening before departure and helped with the packing of the
car. He saw some of the coins and remembered the ‘old rand coin’, 50 cent coins,
an apparent Kruger Rand and small tickey. There were also some R200 notes. They
were together when the collection of monies was put in the box by the plaintiff.
Sizwe even explained the way the money was individually packaged. The witness
had known for many years that the plaintiff collected the ‘old money’ since he
‘loved to tell me about it’.
[26] In summary, the plaintiff's evidence demonstrates that both the claim of
property, ownership and the allegation of assault remain unrefuted. The conditions
in the cells during the plaintiff's incarceration have not been challenged either. The
defendant closed its case without presenting testimony from any relevant officers;
those who searched or arrested the plaintiff; those who forced the plaintiff to the
ground; those who searched or drove the plaintiff’s vehicle to the police station; or
those responsible for the impound yard where the vehicle was held for over a
month. Before his appearance, the plaintiff ensured that subpoenas were issued to
members of IPID who possessed the J88 form and certain witness statements
contained within the IPID assault docket. The IPID members attended Court but
were only able to produce a partial copy of the docket pertaining to the plaintiff’s
case against members of the defendant, which included allegations of assault,
malicious damage to property, and theft.
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Mr Sibolile Lucky Sizwe
[27] Mr Lucky Sizwe, was 38 years old when providing his testimony. At that
time, he resided in Kroonstad. He has known the plaintiff for over five years and
maintained a strong friendship throughout. On 9 August 2021, he stayed overnight
at the plaintiff’s residence pursuant to their agreement that he would accompany
the plaintiff by car as far as Vanderbijlpark the following morning.
[28] He is thoroughly familiar with the plaintiff's vehicle, which was a gold
Toyota Corolla. When questioned about the vehicle's condition, he described it as
a ‘complete vehicle without any issues’. In response to detailed inquiries from the
Court regarding the alleged damage, he maintained that no such damage was
present on the day of their departure. In addition, on questioning by the Court as to
the condition of plaintiff’s vehicle, Mr Sizwe stated that he saw the vehicle 5 to 6
weeks after the incident. He testified that the vehicle was damaged and not in the
same condition as when he was a passenger on the day of the arrest. He referred to
damage to the bumpers, the mirror, dents and interior damage which were not
present on 10 August 2021.
[29] He assisted the plaintiff with loading the toolbox and drill into the vehicle.
He stated that he was aware of the blue box containing the collector’s coins and
notes, as he and the plaintiff had previously reviewed the collection at the plaintiff’s
residence. He indicated that the plaintiff was an enthusiastic coin collector who
frequently discussed his collection. Furthermore, he confirmed that the plaintiff
had placed the blue box in his vehicle prior to their departure.
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[30] When questioned regarding the incident, Mr Sizwe stated that he was only
transported as far as the Vanderbijlpark/Vereeniging offramp and was not present
at the time of the arrest. He further indicated that Mr Kalake contacted him some
time after the arrest to inform him of the events that had occurred.
Dr SZ Molatolisi
[31] Dr Molatolisi stated that he examined the plaintiff on 13 August 2021 and
completed the J88 medical form (Exhibit H). The plaintiff reported experiencing
chest pain. Upon examination, Dr Molatolisi observed chest contusions, abrasions,
and noted that the plaintiff appeared stressed during the consultation following
allegations of assault by members of the SAPS. Dr Molatolisi testified that the
examination took place three days after the alleged incident and opined that the
injuries would likely have been more pronounced on the day of the assault. He
further indicated that the injuries were consistent with blunt force trauma. The
testimony provided by Dr Molatolisi was not challenged.
Mrs Malephane
[32] At the time of her testimony, Mrs Malephane was a 66-year-old unemployed
woman residing in Klerksdorp. Her acquaintance with the plaintiff is limited to
having received transportation from the plaintiff on the day of the incident.
[33] She stated that at around 19h30 on 10 August 2021, she was a passenger in
the plaintiff’s vehicle, which was parked at a garage in Bethlehem. She was waiting
there for someone else to pick her up and continue her journey. While she waited,
several police officers approached and instructed everyone in the vehicle to exit
and lie face down on the ground. The SAPS officers explained they were
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conducting a search for firearms. While she was on the ground, a female officer
slapped Mrs Malephane. She also observed a male officer kicking the plaintiff as
he lay on the ground, and saw Mr Kalake being slapped after he asked: ‘Why are
you beating me?’.
[34] She testified that the police searched the vehicle of Mr Kalake, and she
noticed certain items being removed from the vehicle, such as a red toolbox, a black
cylinder/container, a spare wheel and a blue drill.
[35] Mrs Malephane and the plaintiff were thereafter arrested and taken to the
police station. Mrs Malephane later made a statement to IPID confirming the
events. She sat at the police station the whole night. In the morning, they were
released; that was herself and the other gentleman in her company.
[36] As to the condition of plaintiff’s vehicle, she testified that it looked to be ‘all
right’ and she did not notice any damage or dents to the vehicle prior to their arrest.
She stated that the vehicle ‘looked new’. She was adamant during cross
examination that she saw the car when it was parked in Vereeniging. She also saw
it when she went to the toilet, and she would have noticed if it was damaged. She
would have noticed if the rear bumper was missing. She did not know if the car
was new ‘but by the look it looked new’. She did not notice any dents.
[37] Mrs Malephane's testimony about the assault, the vehicle's contents, and its
condition was, in essence, unchallenged. No alternative account was presented to
contest her evidence on any of these points.
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Defendant’s case
Tseko Moss Nkobo
[38] He is employed at the SAPS in Bethlehem. He has been so employed for
13 years at the time of his testimony and holds the rank of sergeant.
[39] On 10 August 2021 the plaintiff was arrested. The witness was part of the
detail that arrested the plaintiff. His colleagues from the DPCI Hawks arrived with
information about the sale of firearms and diamonds that are to take place at a mall
in town. They requested assistance and described the vehicle to them and where it
will be parked. He could not recall the registration number that was supplied.
[40] On arrival they approached the vehicle. The captain that led the operation
had a discussion with the person that was driving the car. The people inside the
vehicle were requested to come out of said vehicle. It was then explained to the
driver that it is requested that the vehicle be searched. ‘He said yes, he has no
problems’. There were four people in the vehicle: one female and three males.
[41] The plaintiff started using ‘uncalled for words and he was shouting’. He
alighted and was requested to lie down to be searched. The plaintiff that was the
driver, said he has injuries he cannot lie down. Thereafter a colleague assisted him
to lie down. It is not true that the plaintiff was pulled and dragged out of the vehicle.
The purpose of having him lying down was to keep him under control since he was
unknown to them and for him to be searched properly. They were searched.
[42] Thereafter the driver was told to get up. He was told that the vehicle was
going to be searched. He stood beside the witness’s colleague so he could see how
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the vehicle is searched. The plaintiff was there when the vehicle was searched.
Mercury was found on the back seat. It was the only item that was found to be
suspicious. The plaintiff was asked about it. He confirmed it was his. He explained
how he purchased it.
[43] The vehicle was taken to the Bethlehem police station. It was after the
suspicious mercury was found that the car was taken to be booked into the so-called
SAP 13-store. Regarding the processing of the vehicle, a seizure statement is used
(SAP 430a). Each vehicle that is booked into SAP 13 must be with this form. It is
to ascertain and establish the condition of the vehicle when it arrives and to note
the contents inside. The vehicle was not damaged during the arrest. It was
stationary during the search. There was no reason to, or action that could cause
damage.
[44] During cross examination the witness emphasised that the plaintiff was not
a danger to them but uncooperative and using vulgar language. The witness did not
see any assault on the plaintiff. He was not watching the situation with the plaintiff
the whole time. It was not possible because he was on the other side of the vehicle
with the passengers.
[45] The reason for cuffing the plaintiff was due to the reports of firearms. The
witness did not search the vehicle. One of the SAPS members on the scene drove
the car to the police station. He estimated that they were at the scene for about
15 minutes. At the station the vehicle was examined in the presence of the plaintiff.
The plaintiff refused to sign the form. During cross examination it was put to
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Sergeant Nkobo that there are discrepancies about the timeline of his version. The
arresting statements indicate that plaintiff was arrested at 20h30 at the garage.
[46] However, the vehicle seizure statement that Sergeant Nkobo completed at
the police station also reflects a time of 20h30. The arrest took approximately
20 minutes, and the police station is another 5 minutes away. The seizure statement
containing detail of the damage, type of battery, type of tyres etc. would have taken
a considerable time to complete. He could not give an estimate of how long it took
to inspect plaintiff’s vehicle.
[47] When questioned as to why the plaintiff did not sign the seizure statement
indicating damage to the vehicle, he testified that people who are not satisfied with
the detail in the statement normally refuse to sign. It is the argument of the plaintiff
that it is evident that this document could not have been completed at 20h30 on the
night of the arrest and was not presented to plaintiff for his signature.
Sergeant Nkobo would also have recorded that plaintiff refused to sign if it
happened.
[48] The plaintiff correctly concluded and argued on the evidence of the witness
that Sergeant Nkobo could not give evidence regarding the plaintiff’s assault as he
could not see the plaintiff on the ground; he could not give evidence as to what
items were in the vehicle as he did not search the vehicle; he did not drive plaintiff’s
vehicle to the SAPS station, and his time frames regarding the arrest and inspection
of plaintiff’s vehicle do not accord. The fact that plaintiff’s signature is absent from
the seizure and inspection form further confirms the improbabilities of the version
of Sergeant Nkobo.
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[49] It was put to the witness by the plaintiff that the only form that he was forced
to sign was the release form. He does not know about the seizure form. The witness
denied this and indicated that he cannot testify about the release of the vehicle since
he was not present.
The arguments
[50] The pre-existing knee injury of the plaintiff argued by the defendant is not
related to the damages claimed for the assault. It was not addressed during the
evidence of the plaintiff and with Dr Molatolisi. It does not have any effect on the
merits.
[51] The defendant's arguments and evidence regarding reasonable force were
unsuccessful. The onus is on the defendant, and they failed to call any of the SAPS
officers, mentioned by name, who arrested and allegedly assaulted plaintiff. There
was neither a claim nor any proof provided to support the use of ‘reasonable’ force.
[52] As to the evidence of the damage to the vehicle by Mrs Malephane it remains
a reality that her evidence stands uncontested and is corroborated by the plaintiff
and Mr Sizwe.
[53] Counsel for the plaintiff is correct in his submission during argument that
the plaintiff testified that he was instructed to sign the indemnity release form
before he was allowed contact to his vehicle, more specifically before he was
allowed to even see his vehicle. The plaintiff's evidence was not challenged. It is
not open for defendant to contest the unchallenged evidence in closing argument.
The witness for the defendant that was involved here was not called to testify.
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[54] The fatal contradiction in the case for the defendant is that the defendant on
the one hand argues that the vehicle was returned to plaintiff on 16 September 2021
‘in good condition’ as per page 102 of the documents bundle (the release form),
There were not any defects. On the other hand, however, defendant argues that the
vehicle, when seized on 10 August 2021, had extensive damage as recorded on
page 88 of the documents bundle (the unsigned seizure statement). This shows the
inconsistency of its version and irregularities contained in the docket. As counsel
for the plaintiff argued; it is non-sensical to argue that plaintiff vehicle was seized
in a damaged state by defendant, but then to argue that when plaintiff's vehicle was
released it was in a good condition.
[55] No evidence was presented by the SAPS officers who drove the plaintiff's
vehicle to the police station, and who were in control of plaintiff's vehicle at the
impound yard where the vehicle was stored for more than a month. This is crucial
evidence that could have negated the version of the plaintiff. The evidence of
Captain Steyn on the issue was not adduced. The argument that the plaintiff could
have damaged his own vehicle is preposterous. The evidence of the battery, tyres
and the rest is too detailed.
[56] It was established and substantiated that the plaintiff promptly filed a
complaint regarding the alleged assault, the damage to his vehicle, and the items
not returned.
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[57] The defendant attracted a legal duty of care with regards to the seized items.
The defendant breached its legal duty of care entitling plaintiff to the damages
sustained because of the breach.2
[58] The plaintiff managed to prove on a balance of probabilities that the items
claimed to have been lost was in the vehicle and was his property. His evidence
stands unrefuted and was corroborated by Mr Sizwe. The witness for the defendant
confirmed that he was not the officer who searched and seized plaintiff's vehicle
and other property. He only completed the unsigned seizure form at the police
station, and it was shown to be unreliable and uncorroborated.
[59] The only item that lacks proof of ownership is the Kruger Rand, and the
concession was correctly made by counsel for the plaintiff.
Conclusion
[60] The evidence for the defendant on all the issues is scanty, and their witness
was not of much value given the evidence in the case of the plaintiff that stands
corroborated. The case for the plaintiff must be accepted. The veracity cannot be
questioned. This brings me to the different claims.
The pleadings
[61] The claims for the plaintiff as per the pleadings are as follows:
(a) Claim 1 – Unlawful arrest and detention: As a result of the unlawful arrest
and detention the plaintiff suffered damages in the amount of R250 000.00 for (a)
2 Ndobe v Minister of Police (14/22926) [2022] ZAGPPHC 845 (21October 2022) para 1.
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deprivation of plaintiff’s freedom, (b) contumelia, (c) emotional stress and
psychological trauma and (d) embarrassment suffered by the plaintiff keeping him
in a holding cell and being arrested in front of the public.
(b) Claim 2 – Assault: As a result of the aforesaid assault the plaintiff suffered
the following: (a) abrasions to his knees and ribs, (b) swelling and bruising to his
ribs and knees and (c) suffered aches and pain and bruises and contumelia. Plaintiff
is seeking the amount of R100 000.00 for damages.
(c) Claim 3 – Loss and damage to property: It is alleged by the plaintiff that
defendant unlawfully and negligently caused the loss of the plaintiff’s property,
alternatively failed to properly execute the duty of care and damage to the plaintiffs
property and more specifically in that they (a) failed to properly execute the duties
of care by protecting and taking diligent care of the plaintiff's motor vehicle, (b)
failed to prevent anyone at the SAPS 13 holding facility, from removing the
plaintiff's tyres, battery and car jack. As a result of the above the plaintiff suffered
damages to the motor vehicle in the sum of R16056.09 (The damages to the car
were testified about and depicted in the photos handed in during the trial) and R1
850.00. It was further pleaded by the plaintiff in relation to claim 3 that on the same
day the following items were in addition stolen from his vehicle:
(i) ‘8 Gigs of transparent unique memory sticks for research for the Plaintiff’s
PHD degrees’.
(ii) Blue coin box.
(iii) One slabbed Kruger Rand.
(iv) One slabbed 50 Cent South African collectors’ coin.
(v) One slabbed R1.00 South African collectors’ coin.
(vi) One 3rd tickey South African collectors’ coin.
(vii) Seven R200 notes signed by Governor Tito Mboweni.
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(viii) One Makita drill HR 4002.
(ix) One RS Pro 84-piece mechanical box set.
(x) Two and a half litres of silver mercury.
(xi) One personal Nokia cell phone.
Decision on the issues
The damages award for plaintiff’s claim for unlawful arrest and detention & the
merits of the assault, and the damages award for said assault.
[62] The issue of arrest and detention was conceded by the defendant. The
discussion of the evidence above shows that the plaintiff established on a balance
of probabilities that he was assaulted. The damages award must be determined and
on the prevailing law and the specific facts of the case.
[63] Counsel for the plaintiff suggested that the quantum be compounded and to
be between R200 000.00 and R250 000.00. Counsel for the defendant maintains
the amount of R80 000.00 to be a fair and reasonable award for damages in respect
of the arrest and detention. He denied that the assault was proven.
[64] I introduced the plaintiff in the summary of his evidence: Mr Kalake, aged
42 was employed as a business analyst. Following the completion of grade 12, he
earned a BSc degree in Computer Science and Statistics in 2004. He subsequently
obtained an honours degree and a master's degree. At the time of his testimony,
Mr Kalake was pursuing a PhD.
[65] The personal rights that were infringed lies at the heart of the Constitution
of the Republic of South Africa, 1996; namely personal liberty and the right to the
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protection of physical integrity and property. An award must reflect the seriousness
of the infringement in all its facets on the facts of the case. The balance disturbed
must be regained. The emphasis is on judicial balance, and this does not suggest
that the amount for compensation is to enrich the aggrieved party.3
[66] Counsel for the parties referred to caselaw that contributed to establish the
quantum of the award here. I will not reiterate it. There is an exposé in the heads of
argument. The Supreme Court of Appeal noted in Brits v Minister of Police &
Another (Brits),4 that:
‘[33] … Although awards of damages made in previous decisions may serve as a guide in the
consideration of an appropriate amount of damages for the injury resulting from unlawful arrest
and detention, such awards are not to be followed slavishly, for every case must be determined
on its facts. It must be borne in mind that the primary purpose of an award of damages for
unlawful arrest and detention is not to enrich the aggrieved party but to offer him or her some
solatium for their injured feelings.
[34] In Kammies v Minister of Police and Another , the plaintiff was detained for three days
and awarded damages in the sums of R70 000. In Rahim and Others v Minister of Home Affairs,
this Court awarded damages ranging from R3 000 for four days unlawful detention and R20 000
for 30 days to R25 000 for 35 days’ unlawful detention. In De Klerk v Minister of Police , the
Constitutional Court considered an amount of R300 000 for approximately seven days’ detention
to be fair and reasonable. In Mahlangu and Another v Minister of Police, the Constitutional Court
awarded damages in the amount of R500 000 for an unlawful detention that lasted eight months
and ten days. Having considered all the facts of this case, including the age of the appellant, the
3 Minister of Safety and Security v Tyula (327/2008) [2009] ZASCA 55; 2009 (5) SA 85 (SCA); 2009 (2) SACR 282
(SCA) ; [2009] 4 All SA 38 (SCA) (27 May 2009) para 26; Minister of Police v Dunjana and Others (CA 117/2021)
[2022] ZAECMKHC 88; [2023] 1 All SA 180 (ECG); 2023 (2) SACR 486 (ECM) (25 October) para 35; Rudolph
and Others v Minister of Safety and Security and Others (380/2008) [2009] ZASCA 39; 2009 (5) SA 95 (SCA);
2009 (2) SACR 271 (SCA); [2009] 3 All SA 323 (SCA) (31 March 2009) para 27 and Brits v Minister of Police &
Another (759/2020) [2021] ZASCA 161 (23 November 2021) (Brits).
4 Brits.
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circumstances of his arrest, the relatively short duration of the detention, I consider an amount
of R70 000 to be an appropriate award of damages for his unlawful arrest and detention.’
[67] The Supreme Court of Appeal in the case above ordered the defendant to pay
R70 000.00 to the plaintiff. This was now in 2021. The order of this Court is in
2025. The facts here are different. The plaintiff in casu was arrested and detained,
unlawfully so, between 20h30 on 10 August 2021 until his release on 12 August
2021 at 16h00. It is about 44 hours. The plaintiff was innocently on his way to his
family when the catastrophe occurred.
[68] To reiterate; the plaintiff stated that the police cell was filled to capacity with
about 19 to 22 inmates during the Covid-19 pandemic. Protective masks were not
supplied, toilets were inoperative and a bucket system was implemented. Some
inmates had vomited on the floor, there was no access to running water, and the
blankets available were unclean and unusable. The buckets became fuller as they
had to use it, and it was unbearable. Additionally, the plaintiff was denied the
opportunity to contact his lawyer or family. He remained in the cells for two nights
prior to being brought before the court.
[69] The plaintiff was pushed to the ground, handcuffed, dragged to his feet by
the handcuffs, kicked and slapped. This was during the arrest that was conceded to
be unlawful. The plaintiff reported experiencing chest pain. Upon examination, the
physician that testified documented the presence of chest contusions and abrasions,
noting that the plaintiff appeared distressed throughout the consultation and
assessment following his allegation of assault by members of the SAPS. The
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plaintiff suffered from the injuries whilst at the same time being incarcerated in the
appalling conditions described above and for almost two days.
[70] In Maphoto and Others v Minister of Police and Another,5 it was held that:
‘[29] The authors of Visser & Potgieter Law of Damages have extracted from South African
case law the following factors which can play a role in the assessment of damages:
“In deprivation of liberty the amount of satisfaction is in the discretion of the court and calculated
ex aequo et bono . 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 (eg 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 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”.
[30] Section 35(2)(e) of the Constitution provides as follows:
“(2) Everyone who is detained, including every sentenced prisoner, has the right – (e) to
conditions of detention that are consistent with human dignity, including at least exercise and the
provision, at state expense, of adequate accommodation, nutrition, reading material and medical
treatment”.’
treatment”.’
5 Maphoto and Others v Minister of Police and Another (A3172/18) [2019] ZAGPJHC 296 (29 August 2019).
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[71] Given the facts, the factors alluded to and the caselaw I was referred to by
the parties I deem fair compensation to be a total amount for the arrest, detention
and assault as R180 000.00.
Damage to the vehicle & loss of property
[72] The evidence presented clearly showed the nature of the damage to the
vehicle and confirmed the loss of certain property. The liability of the defendant
stands as per the evidence adduced by the plaintiff during his viva voce evidence
in the trial. No evidence was provided to rebut the plaintiff's initial proof.
[73] As regards costs, there is no reason to depart from the ordinary rule that costs
follow the result.
Order
[74] In the result, the following order is granted:
1 The defendant is liable for damages suffered by the plaintiff for unlawful
arrest, detention and assault.
2 The defendant is ordered to pay the plaintiff an amount of R180 000.00 (one
hundred and eighty thousand rand) in respect of the plaintiff’s claim for unlawful
arrest, detention and assault.
3 The defendant is ordered to pay interest on the amount in para 2 at the
applicable rate of interest calculated from the date of service of the summons to the
date of final payment.
4 The defendant is liable to compensate the plaintiff for the loss of the
following items:
4.1 A RS Pro 84-piece toolbox and set.
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4.2 Seven collectors’ R200 notes.
4.3 A canister containing mercury.
4.4 A 1965 silver R1.00 coin and a 1965 silver 50 cent coin.
4.5 A Makita Drill HR4002.
4.6 A container wherein coins and notes were stored.
4.7 A collectors’ 1931 3 rd ‘tickey’ coin.
4.8 A Nokia Cellphone and a memory stick.
5 The defendant is liable to compensate the plaintiff for the damage caused to
his vehicle as proven.
6 The quantum of damage pertaining to paras 4 and 5 is to be proven in due
course as separated and the matter is postponed to the Pre-Trial Roll, 23 February
2026 at 14h15.
7 The defendant is to pay the costs of the trial on a party and party scale to be
taxed on scale B. Costs to include the drafting of heads of argument. The costs of
travelling and accommodation of the plaintiff and his witnesses are referred to the
Taxing Master. All costs reserved are unreserved and to be paid by the defendant.
______________________
M OPPERMAN
JUDGE OF THE HIGH COURT
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Appearances
For the plaintiff: JC Van Eeden
Groenkloof Chambers
Instructed by: Loubser Van Wyk Incorporated, Pretoria
c/o Jacobs Fourie Incorporated
Bloemfontein
For the defendant: P Chaka
Bloemfontein
Instructed by: State Attorney
Bloemfontein.