About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2026
>>
[2026] ZAGPJHC 258
|
|
Hlomuka v Minister of Police (11930/2016) [2026] ZAGPJHC 258 (12 March 2026)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
JOHANNESBURG)
Case
Number: 11920/2016
(1)
REPORTABLE:
NO
(2)
OF INTREST TO OTHER JUDGES:
NO
(3)
REVISED:
NO
HAPPY
JOHANNES HLOMUKA
PLAINTIFF
AND
THE MINISTER OF
POLICE
DEFENDANT
JUDGMENT
1.
The Plaintiff, Happy
Johannes Hlomuka, is a 50-year-old unemployed general worker.
He instituted a damages claim against the
Minister of Police for
wrongful arrest and detention.
2.
It is alleged by the
Plaintiff that on or about 5th day of October 2014 at about 19H30, he
was in the company of two of his friends,
namely Thabang and Sciri.
Whilst crossing a street in Rockville, Soweto, he was accosted by a
black policeman who searched
him, found a box of matches in his
possession, and then accused him of being in possession of dagga.
3.
He was arrested, taken
to Moroka Police Station, where he was locked up from about 20H00
until the following morning at 08H30, he
was then taken to Protea
Magistrate’s Court, where he was released without having
appeared in court.
4.
He testified further
that he does not know the name of the police officer who arrested
him. Summons had been issued and served
on the Minister in the
year 2016. In the plea, the Minister denies the arrest and puts
plaintiff to proof thereof.
This is despite a document titled
Notice of Rights in Terms of the Constitution having been disclosed
to the defendant.
5.
At the commencement of
the hearing in February 2026, the defendant conceded merits and
informed the Court that they have not been
able to trace the police
officer involved in the arrest of the plaintiff, hence they have no
version to place before the Court.
This then resulted in the
plaintiff taking the stand and testified in support of the amount he
claims was due to him as a result
of the conceded unlawful arrest.
6.
The Plaintiff testified
that at the time of his arrest he was 40 years old and employed as a
general worker at Pascal Landscaping
and Irrigation. He was on
crutches as he had been involved in a motor accident where he
sustained injuries to his legs in
1998.
7.
He did not tell the
Court how much he earned as a general worker at Pascal. He
attended school at Mafori Mphahlele School
in Soweto but did not
finish grade 12.
8.
He is still single and
not married and lives with his sister at their parental home in
Rockville, Soweto. He is the father
of one child. He did
not give the age of his child and whether the child lives with him or
not.
9.
He was kept in one cell
with about 17 other detainees. The toilet was leaking. As a
result, the floor was wet. The blankets
in the cells were
smelly and full of mucus and sperms. The toilet pot itself was
full of faeces. He did not sleep and
spent the night sitting on
a cement bunk in the cell.
10.
In answering questions
from the Court, he testified that it was not the first time for him
to be arrested. He contradicted
himself as to his employment
and ended up saying that at the time of the arrest, he was not
employed.
11.
The Plaintiff closed
his case. The defendant did not call any witnesses, neither did
the defendant put a version before Court,
safe to argue that the
plaintiff is not entitled to the amount claimed in the summons.
Plaintiff had testified that he wants
to be paid an amount of
R450 000.00.
12.
Both counsel addressed
the Court on the issue of quantum and submitted heads of argument for
which I am indebted to both for their
useful submissions.
13.
In his particulars of
claim and in his evidence, the plaintiff claims payment of the sum of
R450 000.00, which he says is for
pain, shock, deprivation of
liberty and impairment of dignity, self-esteem and
contumelia
.
In his heads, his counsel submitted that an amount of R120 000 should
be awarded, plus interest at the prescribed rate from
date of issue
of summons.
14.
Horin J in the matter
of
Olivier v
Minister of Safety and Security and Another
2009 (3) SA 434
(W) concluded that the awarding of damages for
unlawful arrest and detention is discretionary and that previous
awards by other
Courts serve only as guidelines. There are no
hard and fast rules.
15.
The Plaintiff testified
that at the time of his arrest he was walking in the street with his
two friends. He did not call
any one of them to corroborate as
to what happened at the time of his arrest. There is no
evidence that there were other
people who witnessed the arrest.
There is also no evidence of any harassment by the police.
16.
The only evidence in
support of the plaintiff's claim based on loss of ignity and shock is
the condition of the cells in which he
was kept. There is
clearly sufficient evidence that he was kept overnight under
conditions not consistent with his constitutional
rights as provided
for in Section 35(2)(e) of the Constitution of the Republic of South
Africa.
17.
There is evidence
placed before me that the cell had 17 other detainees and that they
slept cramped like sardines, in a smelly cell
with water leaking from
a toilet full of faeces.
18.
The arrest of the
plaintiff was, in my view, arbitrary in that the police officer who
effected the arrest did not see to it that
he appeared in court with
proper documents explaining why he is under arrest. There is
also the submission by counsel for
the Minister that no docket could
be found connecting the plaintiff to any offence.
19.
The SCA in the matter
of
Rahim v Minister
of Home Affairs
2015 (4) SA 433
(SCA) at 446(f) held as follows;
“
In
cases involving deprivation of liberty, the amount of satisfaction is
calculated by the court
ex
aequo et bono.
Inter
alia, the following factors are relevant:
(i)
circumstances under
which the deprivation of liberty took place;
(ii)
the conduct of the
defendants; and -
(iii)
the nature and duration
of the deprivation.”
20.
The plaintiff was kept
in detention for a period of 16 hours, which included an overnight
stay in a dirty, stinking cell.
It is correct as Nugent JA
found in matter of
Minister
of Safety and Security v Seymour
2006 (6) SA 320
that:
“
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.”
21.
There is nothing
exceptional about the plaintiff's standing in the community, which
could be said to have affected his dignity and
reputation in the eyes
of the community, nor his immediate family and friends.
22.
There is also no
evidence before this Court that the arrest has had long-term effect
on the plaintiff's life, like loss of employment.
His only
concern is that the government must reprimand the police. I
agree with the plaintiff in that regard. The image
of the
police in the public has been seriously dented as a result of how
some of them have gone about executing their duties.
23.
I have considered all
the previous awards, and I have come to the conclusion that a
reasonable amount should be the sum of R150 000.00.
I have
also concluded that because of how the defendant conducted this
matter, that costs be on a higher scale, plus interest,
to run from
the time the summons was issued.
24.
I have come to that
conclusion because the defendant had no version, not only in their
plea, but they had no statement from the
policeman who effected the
arrest. The plea, which is a bare denial, is, in my view, an
abuse of the court process.
25.
Interest should run
from the date of summons because there was no need to have defended
this matter. The matter should have
been referred to mediation
at the earliest possible time. In the result, I make the
following order:
ORDER
1.
The defendant is
ordered to pay the plaintiff an amount of R150 000 plus interest at
the prescribed rate calculated from the date
when summons was
issued.
2.
The defendant is
ordered to pay the plaintiff's taxed costs on a party and party scale
B, which shall include the cost of counsel
where deployed.
MAKUME
J
JUDGE
OF THE HIGH COURT
JOHANNESBURG
Appearance
For
the Plaintiff:
Adv J Malema
Instructed
by:
Madeleine Gowrie Attorneys
For
Defendant :
Adv Lebenya
Instructed
by:
Office of the State Attorney