REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 12 MARCH 2026 TSHIVHASE AJ
SIGNATURE:
In the matter between :
MOGOHLWANE MPHO MAFEREKE
MATLALA DIPOLELO
AND
MINISTER OF POLICE
NATIONAL COMMISSIONER
OF THE SOUTH AFRICAN POLICE SERVICE
LIMPOPO PROVINCIAL COMMISSIONER
OF THE SOUTH AFRICAN POLICE SERVICE
CASE NO: 4535/2020
FIRST PLAINTIFF
SECOND PLAINTIFF
: FIRST DEFENDANT
: SECOND DEFENDANT
: THIRD DEFENDANT
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JUDGMENT
Heard on 09 October 2025:
This judgment was handed down electronically by circulating to the parties'
representatives by email and published and release to SAFLI I. The date and
time for handing down of the judgment is deemed to be 12 March 2026 at
14:00.
TSHIVHASE AJ:
1. In this matter, the Plaintiffs jointly claim damages against the First Defendant on the
basis that they were unlawfully arrested and detained for four (04) days at Dennilton
Police Cells and thereafter detained for ten (10) days in the Paxton Correctional
Services facility, and during the period of their detention, they were subjected to
disgusting conditions, unpleasant and harsh treatment.
2. The plaintiffs instituted proceedings against the Defendants for damages emanating
from the unlawful arrest and detention.
3. The Plaintiff alleges that at the time of their unlawful arrest and unlawful detention by
members of the First Defendant, who did not have a warrant of arrest in terms of
section 40 ( 1) of the Criminal Procedure Act 51 of 1977, and who were acting within
the scope of employment with the First Defendant. Their claim for damages for
unlawful arrest and detention against the Defendants is based on vicarious liability.
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4. The Defendants pleaded that, without admitting liability, the Police officers acted
within the scope of employment in execution of their official duties. It is therefore not
denied that the Plaintiffs were indeed arrested. The pleadings insofar as denial of
liability and wrongdoing by members of the First Defendant remained and were
never amended until the last day, when the Defendants' Heads of Arguments were
received on 21 January 2026.
5. The vicarious liability principle plays a major role in our South African legal system
as it safeguards and protects innocent third parties against wrongful actions of
employees committed while on duty, furthering the interest of their employers.
6. I deem it necessary to set out a discussion of the law regarding vicarious liability of
employers, as found in Squire v SASOL Mynbou (Edms) Bpk en Andere1, which
passage I freely translate as follows:
"A detailed discussion of the law regarding cases of vicarious liability of
employers is found in the case in the Appellate Division case of Feldman
(Pty) Ltd v Ma/11945 (AD) 733. Watermeyer CJ, who found that the
principles of the English Law are the same as our law, clearly distinguished
between the concepts "within the scope of his work" and "within the scope of
his authority" in the case of an employee who causes damage. The two
concepts must not be regarded as the same. I quote from page 36:
"But the expression "scope of employment" is apt to be misleading, unless
one is alive to the fact that the words "scope of employment" are not
equivalent to "scope of authority". One is apt, when using the expression
"scope of employment" in relation to the work of a servant, to picture to
1 1993 (3) SA 298 (T) 303F-304F
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oneself a particular task or understanding or piece of work assigned to the
servant, which is limited in scope by the express instructions of the master,
and to think that all acts done by the servant outside of or contrary to his
master's instructions are outside the scope of his employment; but such a
conception of the meaning of "scope of employment" is too narrow.
Instructions vary in character, some may define the work to be done by the
servant, others may prescribe the manner in which it is to be accomplished;
some may indicate the end to be attained and others the means by which it is
to be attained. Provided the servant is doing his master's work or pursuing his
master's ends he is acting within the course and scope of his employment
even if he disobeys his master's instruction as to manner of doing the work or
as to the means by which the end is to be attained. A servant may even omit
to do his master's work, and if such omission constitutes a negligent or
improper performance of his master's work and causes damage, the master
will be legally responsible for such damage. Consequently, a servant can act
in disobedience of his master's instructions and yet render his master liable
for his acts."
At 741, the learned Chief Justice said with reference to the reasons for
vicarious liability:
"It appears from them that a master who does his work by the hand of a
servant creates a risk of harm to others if the servant should prove to be
negligent or inefficient or untrustworthy; that, because he has created this risk
for his own ends he is under a duty to ensure that no one is injured by the
servant's improper conduct or negligence in carrying on his work and that the
mere giving by him of directions or orders to his servant is not a sufficient
performance of that duty. It follows that if the servant's acts in doing his
master's work or his activities incidental to or connected with it are carried out
in a negligent or improper manner so as to cause harm to a third party, the
in a negligent or improper manner so as to cause harm to a third party, the
master is responsible for that harm."
The Chief Justice also referred with approval at p 7 43 to a passage
in Salmond on Torts. It reads:
"A master as opposed to the employer of an independent contractor, is liable
even for the acts which he has not authorised, provided they are so
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connected with the acts which he has authorised that they may rightly be
regarded as modes - though improper modes - of doing them ... On the other
hand, if the unauthorised and wrongful act of the servant is not so connected
with the authorised act as to be a mode of doing it but is an independent act,
a master is not responsible."
In African Guarantee and Indemnity Co Ltd v Minister of Justice 1959 (2) SA
437 (A), the State was held liable on this basis for damage flowing from a
collision of a police vehicle which was driven by a constable who was
specifically forbidden to drive the vehicle.'
FACTUAL BACKGROUND
7. I deem it necessary to set out a short chronology of the matter in order to provide
salient events and a summary of the relevant facts that are not disputed and
common cause.
8. The First Plaintiff (Mogohlwane Mpho Mafereke), an adult male born on the 27th day
of September 1998, was placed under arrest by members of the Dennilton branch of
the South African Police Service on the 01 st day of June 2018, who were at the time
acting within the course and scope of their employment.
9. The Second Plaintiff (Matlala Dipolelo), an adult male born on the 13th day of
February 1997, was placed under arrest by members of the Dennilton branch of the
South African Police Service on the 01 st day of June 2018, who were at the time
acting within the course and scope of their employment.
1 0. The First and Second Plaintiffs' arrest and detention happened as a result of
complaint of armed robbery, in that it was alleged that on or about the 19th day of
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May 2018, at or near Kgobokwane in the regional district of Mdutjana they unlawfully
and intentionally assaulted Cedrick Phora and did then with force take his two
mobile phone (his property) in his lawful possession after pointing and threatening
him with a firearm.
11 . The First and Second Plaintiffs were subsequently arrested and detained on the 01st
day of June 2018 at Dennilton Police Cells until 04th day of June 2018, when they
appeared in court and were remanded in custody at Paxton Correctional facility until
their release on warning on the second appearance on the 14th day of June 2018.
12. When the members of the South African Police Service effected an arrest of the
First and Second Plaintiffs, they had already taken and were in possession of a
statement deposed under oath by Freddie Thapelo Dilebo, who could not positively
identify or link the Plaintiffs in the commission of the crime of armed robbery. In his
statement, he indicated that he did not manage to see the faces of his assailants.
13. The members of South African Police when effecting the arrest of the First and
Second Plaintiffs without a warrant, had in their possession witness statements, of
which there was no justification to effect an arrest which constitute a most drastic
infringement of the rights of the Plaintiffs who have a right not to be arbitrarily
deprived of their freedom without justifiable cause, which right is guaranteed as a
fundamental right in terms of section 12 of the Constitution of the Republic of South
Africa Act 1 08 of 1996.
14. Members of the South African Police are required to act within the powers granted
to them by law, and when they execute their functions at all material times, should
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have respect for the individual dignity and liberty guaranteed under sections 10 and
12 of the Constitution of the Republic of South.
15. It must be emphasised that the Republic of South Africa is one, sovereign,
democratic state founded on the value of human dignity, the achievement of human
rights and freedom and the supremacy of the constitution and the rule of law as set
out in section 1 of the Constitution of the Republic of South Africa Act 108 of 1996.
The Constitution further guarantees equal protection and the benefit of the law,
which are key aspects of section 9 of the Constitution, and if any individual feels that
their fundamental rights are violated, he/she can seek redress through the court.
This is exactly why the Plaintiffs instituted an action for damages for unlawful arrest
and detention; in other words, their deprivation of liberty was not justified and, as
such, unlawful.
16. It cannot be ignored that this country comes from the painful past in that prior 1993
("The interim Constitution") and the adoption of the final text in 1996 ("The
Constitution"), in that the Police were heavy-handed, abrasive, intimidatory, and they
were law unto themselves.
17. The Police, as they wished prior 1993, could arrest anyone on suspicion of having
committed an offence and detained without trial, and individuals were treated in a
heavy-handed and undignified manner.
18. The deprivation of liberty , which is unjustified , greatly inconveniences an individual.
The deprivation of liberty in a form of arrest and detention constitutes a drastic
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infringement of individual rights will be lawful only if the arrest and detention are
lawful.
19. The requirements for lawful arrest are set out in what is referred to as pillars for
consideration in section 39 of the Criminal Procedure Act 51 of 1977, as follows:
19.1 The arrest must be properly authorised, meaning with or without a warrant
as dictated by statute;
19.2 Either the person submits to custody, or the arrestor exercises physical
control over the arrestee, and
19.3 The arrestee must be informed of the reasons for his/her arrest, and if a copy
of his/her warrant of arrest is available be issued and/or a copy handed to
him/her.
20. The Supreme Court of Appeal confirmed the requirements and the aforesaid pillars
for consideration of a lawful arrest in the matter of Minister of Safety and Security
v Sekhoto 2011 (1) SACR 315 (SCA).
21 . The members of the South African Police are unable to justify the drastic measure to
effect an arrest, rather than consider other, less invasive options to secure the
attendance of the Plaintiffs before the court.
22. On receipt of the statement by the complainant, Freddie Thapelo Dilebo, who was
unable to link the First and Second Plaintiffs to the commission of the crime of
armed robbery under Dennilton Police Docket Cas Number: 161/05/2018, in the
absence of any evidence linking the Plaintiffs to the alleged crime, members of the
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Dennilton South African Police effected arrest heavy-handed, abrasive and
intimidatory.
23. The Plaintiffs further stated in their Particulars of Claim that they were treated in an
inhuman, heavy-handed, and undignified manner during the fourteen (14) days of
unlawful detention at Dennilton Cells and Paxton Correction Service facility.
24. The Plaintiffs now approached the court for delictual claims for damages for unlawful
deprivation of their liberty and the harsh conduct by members of the South African
Police Services stationed at Dennilton Police Station.
THE ISSUE FOR DETERMINATION
25. When counsel appeared before me on the 09th day of October 2025, the parties
advised me that they had reached a settlement agreement, which they both agreed
should be made an order of court with the following terms:
a. The Plaintiff shall instantly withdraw their claim of malicious prosecution.
b. The Defendants shall be jointly and severally liable for the First and Second
Plaintiffs' agreed and/proven damages on liability.
c. The Defendants shall be jointly and severally liable for the First and Second
Plaintiffs' costs of two counsel on a High Court party and party scale B, with
the one paying and the other to be absolved, inclusive of preparations,
appearance, and reserved dates for 9 and 10 October 2025.
d. The parties shall simultaneously file their respective heads of arguments on
quantum on 30 October 2025.
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e. The court shall make a determination on the issue of quantum based on the
parties' heads of arguments, which determination shall be communicated to
the parties by the Registrar of the court when ready.
f. Costs in relation to quantum shall be reserved pending the determination on
quantum.
26. The order granted by me, by agreement between the parties, on the 09th day of
October 2025, precisely indicated what was admitted and conceded by the
Defendants.
27. Paragraph 4 of the Standing Order (GG) 341 of the South African Police reminds
police officers that the purpose of an arrest is not to punish the person concerned.
28.1 am mindful of the fact that counsel for the Defendants, as per the order granted by
me on the 09th day of October 2025, conceded that the arrest was unlawful and
admitted liability. It was held in Airports Company of South Africa v Big Five Duty
Free (Pty) Ltd and Others 2019 (5) SA 1 CC at paragraph 3 that a court must give
approval to a settlement agreement.
29. The members of the South African Police Service failed to exercise discretion and
opted to lock the Plaintiffs up when they could have simply issued them with a notice
to appear in court on the next available court date. It is clear from the evidence that
there was no justification to have the plaintiff detained for a period of fourteen (14)
days, and their arrest was accordingly unlawful.
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30. When the Plaintiffs appeared in court on the 04th day of June 2018, there was no
need for further detention. The fact that when members of the South African Police
Services arrested the Plaintiffs were at their respective parents' residences.
31. There was no reason to believe that the plaintiffs were a flight risk; both of them are
South African citizens, and further personal information could have been sourced
from their parents.
32. It goes without saying that the arrest and detention of the Plaintiffs for the period of
four (04) days at Dennilton Police Station Cell and further detention for ten (10) days
at Paxton Correctional Service was not justified and unlawful.
GENERAL DAMAGES
33. The Plaintiffs are claiming an amount of R780 878.00 for each one of them in
respect of damages. General damages in these instances will include emotional
shock, discomfort, injured feelings, humiliation, and deprivation of personal liberty.
34. What is at issue before me now is to determine what amount is appropriate to
compensate each Plaintiff for the unlawful arrest and detention.
35. It is common cause that the arrest of the Plaintiffs in the presence of the parents and
relatives was most unceremonious and hurtful. The arrest of the Plaintiffs was
effected in the view of family members and neighbours.
36. The Plaintiffs in their Particulars of Claims described the conditions of the Cell in
which they were detained at Dennilton Police Station and subsequently at Paxton
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Correctional Services for fourteen (14) days respectively. Further, the conditions
under which they were held at the facilities were horrible, and they found themselves
in the presence of strangers and hardened criminals.
37. The Plaintiffs were deprived of their liberty for a period of fourteen (14) days on the
evidence which is not disputed by the Defendants, they suffered degradation and
experienced trauma, which caused great distress.
38. Nugent JA in the matter of Minister of Safety and Security v Seymour 2006 (6)
SA 320 at paragraph 17 said the following:
"The assessment of awards for 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 a few cases directly comparable. They are useful guides to what
other courts have considered to be appropriate but they have no higher value than
that."
39. In the deprivation of liberty the amount of satisfaction is in the discretion of the court
and calculated ex aequo et bond2 .
40. Both parties in their Heads of Arguments referred me to the Supreme Court of
Appeal as a guide on assessing damages for unlawful arrest and detention in the
matter of Minister of Safety and Security v Tyulu3, the following were stated:
2 Law of Damages 3rd Edition, Visser & Potgieter p 545
3 2009 (5) SA 85 (SCA) at para 26
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"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."
41. In Minister of Safety and Security v Seymour+ the Supreme Court of Appeal
stated 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 Joss.
The awards I have referred to reflect no discernable 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 Jess important
also receive protection".
4 2006 (6) SA 320 (SCA) at para 20
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42. Having taken all the circumstances into consideration, I have come to the conclusion
that an appropriate sum for general damages for each Plaintiff is the amount of
R450 000.00 (Four Hundred and Fifty Thousand Rand).
43. As a result, judgment is granted in favour of the Plaintiffs, and the First Defendants
are ordered to pay each Plaintiff the following amount:
43.1. Payment of R450 000.00 (Four Hundred and Fifty Thousand Rand) for
each Plaintiff in respect of damages.
43.2. The Plaintiffs' taxed or agreed party and party costs for two counsel on
Scale C of action, which costs shall include, but not be limited to, the preparation
fees.
APPEARANCES:
TSHIVHASE M.A
ACTING JUDGE OF THE HIGH COURT,
POLOKWANE; LIMPOPO DIVISION
For the Applicant: Adv. K Molefe & Adv. Mthunzi
Instructed by: S Twala Attorneys Inc.
For the Defendents: Adv. T.C Mokhare
Instructed by: State Attorneys, Polokwane
Date of hearing: 09 October 2025
Date of delivery: 12 March 2026