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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION , MAHIKENG
CASE NUMBER: 1278/2018
In the matter between:-
GABUREKWE JAMES ABUTI Plaintiff
and
MINISTER OF POLICE Defendant
This judgment is handed down electronically. The date that the judgment is
deemed to have been handed down is 26 March 2026.
JUDGMENT : QUANTUM
FMM REID J (WAS SNYMAN):
Introduction:
[1] The plaintiff sues the defendant, the Minister of Police, for damages
arising from an unlawful arrest and detention.
[2] The merits of the matter have already been determined in the
plaintiff's favour.
YES/NO
YES/NO
YES/NO
YES/NO
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[3] The remaining issue is the quantum of damages. The plaintiff claims
R130,000 as a fair and reasonable solatium for the infringement of his
rights to liberty and dignity. The defendant contends for a materially
lower amount.
Common-cause Facts
[4] The evidence established that the plaintiff was detained in police
custody from 27 February 2018 to 1 March 2018, when he was
released on bail of R1,000.
[5] His deprivation of liberty endured for approximately two days and two
nights.
Circumstances of the Detention
[6] The plaintiff described being held in a cell of approximately 4m x 4m
at SAPS Madikwe, which contained no beds and had an open toilet
without a door. The cell had a foul smell so severe that he was initially
unable to eat. These degrading conditions direct ly aggravate the
infringement of dignity and the nature of the deprivation.
[7] The plaintiff testified that since the arrest, he harbours a fear of and
distrust towards the police. This subjective experience of humiliation
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and injury to his feelings is relevant to the award of solatium under
the actio iniuriarum.
Legal Principles
[8] Damages for unlawful arrest and detention are awarded
as solatium for injured feelings and the infringement of personality
interests, particularly liberty. The award is not intended to enrich the
plaintiff but to provide solace and to reflect the seriousness with which
arbitrary deprivation of liberty is viewed. See Minister of Safety and
Security v Tyulu 2009 (5) SA 85 (SCA).
[9] In Motladile v Minister of Police 2023 (2) SACR 274 (SCA), the
Supreme Court of Appeal emphasised that the assessment is not a
mechanical process determined solely by duration. A court must
consider a range of factors, including the circumstances of the
detention, the conduct of the polic e, the nature of the deprivation,
comparable awards, and any invasion of other rights.
[10] Comparable awards serve as a guideline to promote consistency but
do not create a fixed tariff. The inquiry remains one of fairness, equity,
and proportionality.
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Evaluation and Comparable Awards
[11] The plaintiff’s evidence establishes a meaningful deprivation of liberty,
aggravated by degrading conditions. The absence of aggravating
factors such as a public spectacle, media publicity, or physical assault
does not diminish the indignity suffered.
[12] In Motladile, the SCA awarded R200,000 for five days and four nights
of detention. In De Klerk v Minister of Police 2021 (4) SA 585 (CC),
the Constitutional Court awarded R300,000 for approximately seven
days of unlawful detention. These cases provide upper benchmarks.
[13] Of particular relevance is a recent judgment from this Division
in O’Riley v Minister of Police (947/2019) 2025 ZANWHC 156 (18
August 2025). In that matter, the plaintiff was detained for a similar
duration (6-8 December 2016) under comparable conditions: a cell of
the same size, with a strong odour and a lack of bedding. The court
awarded an amount of R80,000.
[14] Weighing the factors holistically, I find the circumstances in casu to
be substantially similar to those in O’Riley. The combination of a
cramped cell, lack of bedding, absence of ablution privacy, and the
severe unhygienic conditions, together with the plaintiff’s subjective
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experience of fear, justifies an award consistent with that precedent.
[15] An award of R80,000 is fair and reasonable in my view . It is
commensurate with the injury suffered, reflects the seriousness of the
arbitrary deprivation of liberty, and is consistent with comparable
awards.
Costs
[16] The general principle is that costs follow the result.
[17] There is no reason to deviate from this principle.
[18] The general scale of costs are costs on a party and party scale. There
are no factors that would justify a deviation of the scale. The scale of
costs for counsel should be scale B, being the median scale of litigation
in the High Court.
Order
(i) The defendant is ordered to pay the plaintiff R80,000.00 as
damages for unlawful arrest and detention.
(ii) Interest shall run on the aforesaid amount at the prescribed
rate from date of this judgment to date of final payment.
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(iii) The defendant is ordered to pay the costs of the plaintiff, on a
scale as between party and party scale B.
FMM REID
JUDGE OF THE HIGH COURT
NORTH WEST DIVISION MAHIKENG
DATE JUDGMENT RESERVED:
DATE OF JUDGMENT:
APPEARANCES
FOR PLAINTIFF
COUNSEL:
INSTRUCTED BY:
FOR DEFENDANT
COUNSEL:
INSTRUCTED BY:
2026-01-05
2026-03-26
MR LABUSCHAGNE
LABUSCHAGNE ATTORNEYS
REF: GGL/melanie /GW0939
ADV WILLIAMS
STATE ATTORNEY
MMABATHO