IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MMABATHO
CASE NO: 1089/2022
In the matter between:-
STEPHANUS JANSEN VAN VUUREN Plaintiff
and
THE MINISTER OF POLICE Defendant
This judgment is handed down by electronic circulation to the legal
representatives of the parties via e -mail. The date of the judgment is deemed
to be 23 March 2026.
JUDGMENT
FMM REID J
[1] This is a claim for damages suffered by the plaintiff as a result of an unlawful
arrest and detention on 25 February 2016, as well as a claim for damages
suffered in an assault whilst in police custody during 25 and
Reportable:
Circulate to Judges:
Circulate to Magistrates:
Circulate to Regional Magistrates
NO
NO
NO
NO
r-----~ I
l __ j______
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26 February 2016. The plaintiff is an adult male born on 8 February 1976
and he was 40 years old at the time of the arrest and detention. [2] The
merits of the claims arising from the arrest and detention were conceded
by the defendant (Minister of Police – SAPS) in favour of the plaintiff. This
concession to the merits was made an order of court on
26 October 2017 and reads as follows:
“The defendant shall be liable to pay to the plaintiff such amount as
the plaintiff might be able to prove in respect of the plaintiff’s
damages suffered subsequent upon the plaintiff’s unlawful arrest on
the 25 th day of February 2016 at 13h00 and the Plaintiff’s
subsequent detention until the 26th day of February 2016 at 10h30.”
[3] The following are issues in dispute:
3.1. The quantum for damages suffered as a result of the unlawful
arrest
and detention.
3.2. Whether the plaintiff was assaulted during his police custody.
3.3. If so, the quantum for damages suffered as a result of the
assault.
[4] The particulars of claim sets out the claim as follows:
“8. As a result of the wrongful arrest and detention of the plaintiff
by the said police officers and the assault of the plaintiff as
described in paragraph 7 thereof, the plaintiff experienced:
8.1 Contumelia;
8.2 Deprivation of freedom and discomfort;
8.3 Emotional shock;
8.4 Loss of earnings and earning ability;
8.5 Future medical expenses;
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8.6 Suffered loss of the enjoyment and amenities of life.
9. As a result of the foregoing, the plaintiff suffered, and will
suffer the following damages:
9.1 Estimated loss of earnings and earning capacity
R2,000,000.00.
9.2 Future medical expenses R800,000.
9.3 General damages in respect of suffering and discomfort,
emotional shock and trauma, loss of amenities of life and a
non-pecuniary aspect of a disability R400,000.
TOTAL: R3,200,000.00”.
[5] During 2022 and prior to the trial commencing, the plaintiff amended its
particulars of claim to include the assault during the arrest and detention.
[6] The trial has a long and fragmented history, with multiple postponements.
The evidence presented to this Court includes the plaintiff's personal
testimony, as well as expert medical evidence of the injuries suffered in
orthopaedic, neurological and psychological fields. Both the plaintiff and
defendant presented expert evidence on the financial impact (by means
of industrial psychologists and actuaries) suffered by the plaintiff. The
defendant denies that the plaintiff suffered any damages and denies that
the plaintiff was assaulted whilst in police custody.
[7] The defendant relies on the plaintiff’s pre -existing condition of
spondylosis (age-related wear and tear) and claims that (a) no assault
has been proven, and (b) if an assault has been proven, there is no causal
link between the arrest, detention and alleg ed assault with the injuries
suffered on the basis that spondylosis was the cause of the injuries. The
defendant denies that the plaintiff suffered any loss of income, on the
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basis that the plaintiff was not employed at the time that the arrest
occurred.
[8] The following was evidence that were tendered during the hearing of the
matter.
Plaintiff: Mr. Stephanus Jansen van Vuuren
[9] Mr. van Vuuren gave a detailed and emotional account of the events of
25 February 2016. He voluntarily visited the police station to give a
statement about a theft case that was opened against him by his former
employer. At the police station he unexpected ly was arrested for theft.
After being placed in detention, he was assaulted in a police holding cell
by two co-detainees. After the assault, he was moved to another cell with
about 14 other detainees.
[10] I will refer to the arrest and detention (and alleged assault) as “the
incident”.
[11] The plaintiff described that in the 1 st holding cell at the police station, he
was aggressively pushed against a wall, which resulted in immediate pain
in his lower scull and neck. This aggressive push constituted the assault.
He was terrified and cried in fear.
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[12] In the cell, he was provided with no bedding, he was afraid to use the
open toilet, and stayed awake all night, terrified of being assaulted again
or raped.
[13] The next day he was taken to court, only to be told there was “no case”
against him. He broke down crying in that court, feeling relief but he also
experienced profound confusion and anger for the reason of his arrest in
the first place.
[14] He has since suffered from a constant fear of the police, anxiety in public,
and has a complete loss of trust in people outside his immediate family.
His confidence in the police was destroyed.
[15] Prior to the incident, he earned R4,800 per month as a mechanic/wheel
alignment technician.
[16] After his release, he was unemployed for a period of 3 years, surviving
on odd jobs from his father -in-law (earning approx. R2,000 pm) and
selling scrap metal. In 2019, he started working for JBH Holdings as a
general farm worker for R3,000 pm. He was later moved to their factory
as a supervisor, earning R4,600 pm until February 2024, when his salary
was increased to R6,400 pm (paid partly in cash, partly into his bank
account).
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[17] He had no neck pain or health issues before the arrest. The medical
examinations after the incident did establish a prior existing condition of
spondylosis of the spine.
[18] Immediately after the alleged assault, he started experiencing
headaches, and over time developed persistent pins and needles in his
left arm, weakness, and cold fingers. He sought help at clinics and
hospitals but was only given pain medication. He felt that his complaints
were not taken seriously.
Occupational Therapist: Ms. Helen Elizabeth Robinson
[19] She confirmed the plaintiff's account of the assault and its aftermath. She
found that he suffers from PTSD, anxiety, and social withdrawal.
Physically, he has significant restrictions in his neck and left shoulder
movement. It is unsafe for him to do heavy lifting and he cannot perform
any work that has to be executed above his head.
[20] Her key opinion was that the plaintiff is now restricted to light work. Before
the incident, he was capable of medium to heavy work. While he is
currently employed as a supervisor, any job with physical demands would
put him at a disadvantage. She noted th at due to his pre -existing
degenerative condition (which was asymptomatic), he might have always
been restricted to light work, but the injury triggered the pain.
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Industrial Psychologist: Ms. Ronel Fouche
[21] Pre-Morbid (“but -for”) Scenario: She postulated that without the arrest
and assault, the plaintiff, as a semi-skilled worker, would have continued
to work and see inflationary increases. His career ceiling would have
been reached between 45 and 48, and he would most probably have
retired at 65.
[22] Post-Morbid (Actual) Scenario: She noted that the plaintiff has been
underemployed, working in a vulnerable position with below -market
wages (e.g., earning less than minimum wage for a period). His earnings
have not kept pace with what a semi -skilled worker would typically earn
(R87,000 p.a. in 2025 vs. his R55,200 p.a.). She testified to justify the
application of higher contingency deductions (to calculate loss) due to his
psychological vulnerability, physical limitations, and the stigma attached
to the arrest in his community.
[23] The key disagreements that she has with the defendant's Industrial
Phycologist (Ms. Ntsieni) are in relation to the plaintiff's career ceiling,
retirement age, and the extent of his loss. Ms. Fouche stated that she
found a clear past and future loss of earning capacity.
Industrial Psychologist (Defendant): Ms. Ntsieni
[24] Her core opinion was that the plaintiff has not suffered a past loss of
income. The basis for this opinion is that the employment relationship was
--
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terminated prior to the incident. Therefore, so the argument goes, any
subsequent reduction in earnings after the incident, were not caused by
the incident but by the termination of the employment relationship.
[25] She agreed with the joint minute of the occupational therapists that the
plaintiff is restricted to light work but noted this restriction might have
existed even without the assault due to his pre -existing degenerative
condition of spondylosis. She deferre d to the Occupational Therapist on
whether the plaintiff’s current occupation (supervisor/wheel alignment)
qualifies as light, medium, or heavy work.
[26] She conceded that due to the incident, the plaintiff is a psychologically
and physically vulnerable person in the employment market, which would
support an argument for higher contingencies on future earnings.
Orthopaedic Surgeon (Plaintiff): Dr. Collen Eric Barlin
[27] He confirmed the plaintiff has pre-existing cervical spondylosis. Critically,
he stated that while the condition pre-existed the assault, the plaintiff was
asymptomatic before it. The trauma of the assault aggravated the
preexisting condition, bringing the pain and symptoms to the fore.
[28] He was highly critical of the defence expert's attempt to apportion the
injury (e.g., 85% due to pre -existing condition), calling it a "guess" and
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"thumb-suck." He argued that since the plaintiff had no pain before, there
should not be any apportionment of damages.
[29] He stated his initial cost estimates for future treatment were too
conservative. He believed the plaintiff will need physiotherapy,
medication, and possibly surgery, as his condition had not improved six
years after the incident.
Neurosurgeon (Defendant): Dr. Tshepo Kao Peter Moja
[30] Dr. Moja's testimony was central to the medical dispute. His evidence
shifted significantly under cross-examination.
[31] In his evidence in chief, he based his report on "objective evidence" and
viewed the plaintiff's version of the assault as "subjective." He found no
neurological deficit.
[32] Under cross-examination the witness made concessions, such as these
described. He testified that, in the event that this Court accepts that the
assault factually occurred, he would have to change/amend his report.
[33] He acknowledged discrepancies in the record regarding when the
plaintiff first sought medical help (a week vs. 5 months after the incident),
which impacted his analysis.
[34] Ultimately, he conceded that if the assault has occurred, the assault
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could have aggravated or triggered the spondylosis suffered by the
plaintiff.
Neurosurgeon (Plaintiff): Dr. Delsi Bungu Poati
[35] Dr. Poati was called specifically to critique Dr. Moja's methodology. Dr
Poati strongly criticized Dr. Moja for dismissing the patient's complaints.
He argued that a doctor must base a diagnosis on the patient's history
and presentation and cannot simply disregard a complaint like an assault
or pain because there is no "visible" injury.
[36] He reiterated his findings of decreased range of motion in the left upper
limb, a finding he noted was consistent with Drs. Barlin and Williams, but
notably absent in Dr. Moja's report. The commonality in the decreased
range of motion in the left upper lim b, he argued, supported the
conclusion that the assault had a physical impact on the body of the
plaintiff.
Actuary (Plaintiff): Mr. Gerhardus Jacobus du Toit
[37] He presented calculations for loss of earnings and future medical
expenses based on the joint minutes and reports from the plaintiff's
experts.
Page 11 of 24
[38] The witness explained the difference between his calculations and the
defendant's actuary (Mr. Strydom), noting that a key variable is the
choice of Life Table (which affects the present value of future loss). His
figures were generally more favourable to the plaintiff.
[39] He stated that if this Court accepts the postulations of the plaintiff's
industrial psychologist (Ms. Fouche), then his calculations would be
correct.
Actuary (Defendant): Mr. Antonie Christoffel Strydom
[40] His May 2022 and March 2025 reports were based on the instructions
and postulations from the defendant's experts, particularly Ms. Ntsieni.
[41] He stated that, based on those instructions, his calculation showed no
direct past or future loss of income. Any potential loss, in his view, would
have to be accounted for through higher contingency deductions.
[42] He acknowledged that his calculations would be incorrect if this Court
found the underlying postulations (from Ms. Ntsieni) to be incorrect.
Legal framework
[43] The core factual dispute revolves around whether the plaintiff was
assaulted in custody. Furthermore, the causal link between the incident
--
Page 12 of 24
and the plaintiff's alleged loss of income, and the subsequent calculation
of damages are also in dispute.
[44] The plaintiff's counsel, Adv Hatting, argues for a substantial award based
on the evidence of their experts and the application of the talem qualem
rule (the “thin skull” rule). This rule entails that a wrongdoer must take
their victim as they find them, and a defendant cannot mitigate its
damage due to a pre -existing weakness or vulnerability to limit liability
for damages.
[45] The defendant's counsel, Adv Magano, contends that the plaintiff has
failed to prove the assault. She further submits that, should this Court
find that an assault has occurred, any loss of income was not caused by
the incident but by the prior termination of the employment relationship.
Summary of the plaintiff’s argument
[46] The plaintiff's argument is that the assault factually occurred, its
consequences were severe, and the defendant is liable for the full extent
of the damages suffered by the plaintiff.
[47] The plaintiff argues that the defendant's failure to file a consequential
plea after the 2022 amendment means the assault allegations are
deemed admitted in terms of Rule 22(3) of the Uniform Rules of Court.
Page 13 of 24
Furthermore, the plaintiff argues that its uncontested testimony confirms
the assault. Rule 22(3) reads as follows:
“(3) Every allegation of fact in the combined summons or
declaration which is not stated in the plea to be denied or to be
admitted, shall be deemed to be admitted. If any explanation or
qualification of any denial is necessary, it shall be stated in the
plea.”
[48] In Erasmus: Superior Court Practice @Juta 3rd Edition (Vol 1) on RS 28,
2025, D1 Rule 22-15, the following is stated:
“Subrule (3): ‘Shall be deemed to be admitted.’ This subrule
makes it clear that every allegation of fact in the combined
summons or declaration which is not denied or admitted in the
plea, shall be deemed to be admitted. All allegations of fact,
whether material or otherwise, in the combined summons o r
declaration which are not denied in the defendant’s plea or not
stated to be not admitted, are therefore in terms of the subrule
deemed to be admitted. It has, however, been held that the
subrule cannot be applied piecemeal to a party’s averments so as
to deprive such a party of a defence which is plainly, though
perhaps imprecisely, raised on the pleadings. If a plaintiff is
embarrassed by an apparent contradiction arising from the
absence of a precisely targeted denial of a particular averment in
the particulars of claim, the plaintiff’s remedy lies in a notice to the
defendant to cure a vague and embarrassing pleading in terms of
Rule 23(1).”
(footnotes omitted)
Page 14 of 24
[49] In Absa Bank Ltd v I W Blumberg and Wilkinson 1997 (3) SA 669 (SCA)
it was held by the Supreme Court that it would be “artificial” to invoke
Rule 22(3) if a party, in a separate paragraph, failed to specifically deny
a denial contained in the earlier paragraph. It would be too technical an
approach to hold the pleader as admitting allegations which was not
specifically dealt with. The plea had to be read in its totality as one
composite document.
[50] The defendant filed an application to amend its plea, to include a denial
of the assault, after the evidence was led in the trial. This was opposed
by the plaintiff.
[51] It is submitted by Adv Hatting that the overriding decision in this matter
is the application of the talem qualem rule. The talem qualem rule (the
"Thin Skull" rule) entails the argument that the defendant must take their
victim as they find him. Even though the plaintiff had a pre -existing,
asymptomatic condition (cervical spondylosis), the defendant is liable for
the full extent of the injuries and losses because the assault aggravated
this condition. No apportionment for the pre-existing condition should be
made. In support of this position, he cites the matter of Smit v Abrahams
1994 (4) SA 679 (AD).
[52] The plaintiff urges this Court to accept the evidence of their experts,
particularly Dr Fouché (industrial psychologist) and Mr Du Toit (actuary),
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arguing they were credible, well-reasoned, and provided a reliable basis
for calculating the loss. It is argued that the defendant's industrial
psychologist, Ms Ntsieni, was a "vague, unsatisfactory, unreliable and
biased witness."
[53] In relation to general damages, the plaintiff argues for an amount of
R350,000 for general damages, citing the serious impact on his freedom
in the permanent limitation of the movement of his arms, and the
psychological impact as confirmed by the joint min ute of the clinical
psychologists.
Case Law Referenced by the plaintiff
[54] As mentioned, Smit v Abrahams 1994 (4) SA 679 (AD) deals with the
talem qualem rule (the "thin skull" rule). The plaintiff uses this to argue
that the defendant is liable for the full extent of the damages, despite the
plaintiff's pre-existing cervical spondylosis.
[55] In the matter Southern Insurance Association Ltd v Bailey NO 1984 (1)
SA 98 (A) it was found that assessing any future loss is speculative and
the court must make a reasonable estimate.
[56] In Pitt v Economic Insurance Company Ltd 1957 (3) SA 284 (D) the trite
principle is confirmed that an award for general damages must be fair to
both sides.
Page 16 of 24
[57] In the matter of Bee v Road Accident Fund 2018 (4) SA 366 (SCA) it was
confirmed by the Supreme Court of Appeal that the proper approach is
for the court to evaluate the expert evidence. The Supreme Court of
Appeal found specifically that an expert's opinion must be capable of
being tested and the court must ultimately decide if it is correct and
reliable.
[58] In R v Turner [1975] 1 All ER 70 , which is an English decision, the
principle is established that an expert opinion is valueless if it is based
on incorrect facts.
[59] In Thandani v Minister of Law and Order 1991 (1) SA 701 (ECD) the
principle is used that the plaintiff's uncontested evidence (in this case,
specifically on the assault) should be accepted if it is reasonable and not
far-fetched.
Summary of the defendant's argument
[60] The defendant's primary argument is that the plaintiff has failed to prove
his case on a balance of probabilities. The defendant prays for the action
to be dismissed with costs, effectively arguing for an amount of Zero
Rand for damages.
Page 17 of 24
[61] The defendant submits that the plaintiff has failed to prove that he was
assaulted. They point to the lack of contemporaneous medical records,
the failure to open a police case, and the significant delay (until 2022) in
amending the particulars of claim to include the assault. They argue the
onus is on the plaintiff to prove that the assault factually occurred on a
balance of probabilities and argue that the plaintiff has failed to do so.
[62] The defendant further argues that even if an assault occurred, the
plaintiff's loss of income was not caused by the assault. The defendant
contend that the plaintiff lost his job due to a wage dispute with his
employer before the arrest, and the arrest itself was a result of theft
charges laid by that employer. Therefore, the causal link between the
unlawful arrest/assault and the loss of income has not been proven.
[63] The defendant criticizes the plaintiff's case for relying on uncorroborated
hearsay, particularly regarding his pre -incident income of R4,800 per
month. It is argued for the defendant that no payslips, bank statements,
or employer confirmations were provid ed, making the expert reports,
which relied on the plaintiff's ipse dixit, inadmissible or of no weight.
[64] The defendant submits that the court must distinguish fact from
speculation. It is argued for the defendant that the plaintiff's experts failed
to verify fundamental facts and that their opinions are therefore
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"valueless." The defendant points to the conflicting evidence between
the neurosurgeons (Dr Poati and Dr Moja) as a reason to reject the
plaintiff's claim for a curtailed working life.
Case Law Referenced by the defendant
[65] The matter of Lee v Minister of Correctional Services 2013 (2) SA 144
(CC) is the central authority cited by the defendant on the issue of
causation. The defendant uses it to argue that the plaintiff must prove a
direct causal link between the wrongful act (the alleged assault) and the
harm suffered (loss of income).
[66] M R v Road Accident Fund (Case no 2457/2017) [2020] ZAFSHC (5
February 2020) is cited for the principle that the court must distinguish
between fact and speculation in expert evidence.
[67] With reference to the matter of Tsufu v Road Accident Fund (8774/2020)
[2024] ZAGPPHC 1234 (27 November 2024) the defendant relies on this
recent case to highlight the court's concern when a plaintiff has no
medical records to corroborate an injury, questioning how a serious injury
can be linked to an incident without such evidence.
[68] The matter of Mathebula v Road Accident Fund (82839/18) [2023]
ZAGPPHC 1966 (28 November 2023) is used by the defendant to
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support the argument that an expert cannot give hearsay evidence, and
all facts they rely on must be established through admissible evidence.
[69] Molaudikgotla Kingsley Mathamelo v RAF (85369/2019) [2023]
ZAGPPHC 1150 (11 September 2023) is used as a key authority in
favour of the defendant. The defendant uses this matter to argue that an
expert's reliance on the mere say -so (ipse dixit) of a plaintiff regarding
employment history and income constitutes inadmissible hearsay,
especially when the plaintiff themselves has not placed these facts into
evidence. The court in Mathamelo dismissed the plaintiff's claim for loss
of income on this basis.
[70] The matter of Embling v Two Oceans Aquarium CC 2012 (6) SA 691 (C)
is cited in support of the defendant's belated application to amend its
plea denying the assault, on the principle that amendments should be
allowed to promote the proper ventilation of disputes.
Findings
[71] Having regard to the evidence provided by the plaintiff in relation to the
incident of assault during police custody, the specific evidence of the
place on his head where it immediately started to pain, as well as the
medical reports in support of the plai ntiffs version that the injuries he
suffered came to the fore after his police custody, I am satisfied that the
plaintiff has factually proven he has been assaulted during his police
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custody. The fact that he only sought medical assistance months after
the incident, cannot negate the fact that the assault occurred.
[72] The application of Rule 23 is a general application and guideline for the
court to follow in the absence of any other evidence to the contrary. It is
not cast in stone. The saying is apt that “the Rules are made for the
Court, the Court is not made for t he Rules”. As such the Rule cannot
over-ride the evidence presented to the court.
[73] In the premises, I find that the plaintiff has factually proven that he has
been assaulted during his police custody. As such, the defendant is
liable for the damages suffered as a result of the injuries.
Evaluation
[74] The plaintiff claims an amount of R500,000 for the unlawful arrest and
detention of the plaintiff.
[75] The plaintiff claims R1,500,000 for the injuries suffered as a result of the
assault suffered in police custody. The plaintiff suffered Post Traumatic
Stress Syndrome (PTSD) and had a mild to severe medical physical
outfall of the assault during incarceration.
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[76] After hearing the evidence, evaluating the witnesses and the
documentary evidence which includes the expert reports, and after
considering the necessary case law, I hold the view that it would be just
and fair for the plaintiff to be compensated in the amount of R70,000.00
(Seventy Thousand Rand) for the unlawful arrest and detention.
[77] I find that the “thin skull rule” does apply in this instance. The spondylosis
that the plaintiff suffers from prior to the assault, was triggered and
activated with the assault. The fact that the plaintiff had suffered from
spondylosis, cannot minimise the effect of th e assault on the medical
condition of the plaintiff.
[78] After hearing the evidence, evaluating the witnesses and the
documentary evidence which includes the expert reports, and after
considering the necessary case law, I find that the plaintiff should be
compensated the amount of R1,500,000.00 (One Million Five Hundred
Thousand) as contumelia for the assault endured whilst in police custody.
The plaintiff suffers permanent outfall of the assault. The medical
sequalae of the plaintiff is not only limited to physical pain but also
extends to mental sequalae in being diagnosed with PTSD.
[79] I come to the conclusion that it would be fair and reasonable for the
defendant to compensate the plaintiff in the amount of R1,570,000.00
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(One Million Five Hundred and Seventy Thousand Rand) for the unlawful
arrest, detention and assault that occurred in police custody.
Cost
[80] The general principle is that the party that is successful, is entitled to its
costs.
[81] On several specific days specific cost orders were made. Those cost
orders are applicable to the costs incurred for that specific day.
[82] The legal principles (such as the application of Rule 23, and the
application of the “thin scull rule”) are quite intricate and is not often
encountered. In addition thereto, the trial spanned a number of days and
the action has been instituted in 2016. It has thus been a long and
convoluted period of litigation that the parties were involved in.
[83] I hold the view that the plaintiff is entitled to cost on a party and party
scale B, which would justify the duration and difficulty level of the matter.
Order
[84] In the premises, I make the following order:
(i) The defendant is to pay to the plaintiff the amount of R1,570,000 (One
Million Five Hundred and Seventy Thousand Rand) for damages
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suffered as a result of the unlawful arrest, detention and assault that
occurred on 25 and 26 February 2016.
(ii) The defendant is to pay the cost of the plaintiff on a scale of party
and party, Scale B.
FMM REID
JUDGE OF THE HIGH COURT
NORTH WEST DIVISION MAHIKENG
DATE JUDGMENT RESERVED: 9 DECEMBER 2025
DATE JUDGMENT HANDED DOWN: 23 MARCH 2026
REPRESENTATION
FOR THE PLAINTIFF
COUNSEL:
ON INSTRUCTION OF:
ADV HATTING
LABUSCHAGNEATTORNEYS
TEL: 018 381 6828
Page 24 of 24
FOR THE DEFENDANT
COUNSEL:
ADV MANGANO
ON INSTRUCTION OF: THE STATE ATTORNEY
MAHIKENG