IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Circulate to Magistrates / Circulate to Regional Magistrates
Case no:CIV APP RC 08 /25
In the matter between:
THANDIWE MTATI
APPELLANT
and
THE MINISTER OF POLICE
PARTY
Coram:
Heard:
Masike AJ et Wessels AJ
31 October 2025
APPELLANT
FIRST RESPONDENT
Delivered: This judgment was handed down electronically, circulated to the
parties' representatives via email, uploaded to CaseLines, and released to
SAFLII. The date and time for the handing down of the judgment are deemed to
be 1 OhOO on 17 March 2026.
2
Summary: Unlawful arrest and detention - Quantum of damages -
Discretion of trial court - Appellate interference - Substandard detention
conditions (dirty cells, broken toilets, lack of bedding) - Whether such
conditions constitute 'special circumstances' or have become baseline factors
in assessment- Held that prevalence of such cond itions in unlawful detention
cases means they do not automatically warrant a premium - A ward of
R40,000 for 48-hour detention by young female plaintiff with aggravating
features (naked confrontation, mixed detention with males, lack of food) not
so low as to warrant interference - Appeal against quantum dismissed.
Costs - Heads of argument - Recoverability - Practice Directive 6.11 of
Regional Court Practice Directives permits filing of heads 'where necessary'
but does not require them in defa ult judgment matters - Costs of heads of
argument not automatically recoverable - Determination of necessity a matter
for ~ourt's discret ion and ultimately taxing master - Magistrate's omission to
spec ifically award heads of argument costs not a material misdirection where
genera l costs order gran ted - Appeal against costs dismissed .
Appeal - Record on appeal - Appe llant bears burden to place comp lete record
before appeal court - Absence of transcript or note of proceedings prevents
specu lation about what occurred.
JUDGMENT
WesselsAJ
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Introduction
[ l] This is an appea l against part of the judgment and order of the Regional
Court for the Regional Divi sion of the North West, held at Klerksdorp. The
court a quo granted default judgment in favo ur of the appellant against the
respondent for unlawful arrest and detent ion. The magistrate awarded the
appellant R40 000.00 in damage s, together with interest and costs. The
appe llant appeals against the quantum of the damages award, wh ich she
conten ds is too low, and against the refusa l to award the costs of drafting her
heads of argument . The respondent did n ot participate in the appea l.
Facts
[2] The facts of the matter largely emanate from the appellant's affidavit
filed m support of her claim, as the respondent did not file a plea on the
ground that it was barred. The appellant's evidence is thus large ly
uncontested.
[3] On Saturday 16 March 2024 , the appe llant, by then a 22-year -old
woman , was at a friend's house in Kanana, Klerksdorp. She was naked and
lying on a bed when t wo male police officers entered the room witho ut
warning. She was emba rrassed and shoc ked. She was ordered to get dressed.
The police then searc hed the house and found cannabis. The appellant denie d
any know ledge of the cannabis, but her protestations were ignored. The police
office rs informed her that it was their instruction to arrest her and that she
must give her version in court. She was arreste d without a warrant at
approximate ly 17h00 .
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[41 She was first taken to Kanana Police Station, where she was detained
for four to five hour s in a room with approximate ly six other male detainees.
She was the only female and feared for her safety. She was then transfer red
to the Leeudoringstad holdin g cells.
[5] The cell at Leeudoringstad was approximately 8x5 metres and was
dirty. It had a bad smell emana ting from a non-working toilet . The showe r
was dirty, covered with spiders, spider webs, and flies. The appellant was not
provided with a blanket or a mattress and was force d to sleep on the cement
floor. The ce ll was full of insects and mosqu itoes.
[6] The appellant was not provided with any food on Saturday night. On
Sunday 1 7 March 2024, she was offered porr idge with milk, which she could
not eat because she is allergic to milk. She rece ived no food on the Monday
until her release. She was not allowed to call her family to bring her warm
clothes or toiletries.
[7] The appellant was detained from the even ing of Saturday 16 March
2024, until Monday 18 March 2024, at approximately 16h00 and was released
without ever appearing in court.
[8] The appellant states in the evide nce, adduced on affidavi t, that the
experience had a lasting impact on her. She is not the same person as she was
before the arrest. She has frequent dreams about the experience. Any bad
smell triggers flashbacks and she strugg les to manage her emotions,
becoming easi ly emotiona l, irritated, and frustrated.
The judgment of the court a quo
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[9] In her judgment on quantum, the Magistrate correctly restated the trite
principles governing the assessme nt of damages for unlawful arrest and
detention, citing Minister of Safety and Security v Tyulu1 for the proposition
that the primary purpose is to offer a solatium for injured feelings, not to
enrich the aggr ieved party.
[ 1 0] The Magistrate considered the facts of the case, noting the appellant's
young age, the humiliation of being confronted while naked , the poor
conditions of the cell, and the lack of food. She referred to severa l prev ious
comparable judg ments regarding the facts and the quantum awarded in those
cases. She concluded that the facts and circumstances of this case were
distinguishable from the case law cited by the appellant and that an amount
of R40 000.00 would be 'fair and just ' .
[ I l] Regarding costs, the magistrate ordered that the 'Defe ndant is to pay
costs of action on a party and party scale, which costs include the necessary
preparation and travelling costs .'
[12] The magistrate did not award the costs of drafting the heads of
argument, despite a specific prayer for these costs in the appellant's written
submissions.
Issues to be decided on appeal
[ 13] The appellant's notice of appea l raises the primary issues for this
Court's determination:
1 Minister of Safety and Security v Ty11/11 (327/2008) [2009] ZASCA 55; 2009 (5) SA 85 (SCA); 2009 (2) SACR
282 (SCA); [2009] 4 All SA 38 (SCA) (27 May 2009).
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(a) Whether the learned magistrate erred in awarding the sum of R40 000.00,
thereby fai ling to take into account all relevant factors and adopting a
mechanica l approac h to the quantification of damages.
(b) Whether the learned magistrate erred in omitting or refusing to grant the
appellant the costs of draft ing the heads of argument.
Applicable legal principles: The assessment of quantum
[ 14] The assessment of damage s for unlawful arrest and detention is a matter
of discretion for the trial court. In Tyulu2, the Supreme Court of Appea l stated:
·In the assessment of damage s for unlawful arrest and detention, it is impo11ant 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 ensw-c that the damages awarded are commensw-ate with the
injury inflicted. liowever 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 persona l liberty is viewed in our law.'
[15] In Minister of Safety and Security v Seymour3, the Supreme Court of
Appea l ('SCA') cautioned that it is challenging to assess general damages by
comparing them with past cases because the facts of each case must be
considered as a whole, and few are truly alike. While previous awards can
help indicate what quantum courts have found suitable , they do not carry
greater authority than serving as guidance. In Protea Assurance v Lamb➔, the
SCA held that the process of compar ison is not a meticu lous examination of
2 Op cit fn I para 26.
3 Minister of Safety and Security v Seymour (295/05) [2006] ZASCA 71; [2007] I All SA 558 (SCA); 2006 (6)
SA 320 (SCA) (30 May 2006) para 17.
4 Protea Assurance v lamb 1971 (I) SA 530 (A) at 535B-536A.
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awards and should not fetter a court's general discret ion. Previous awards are
useful guides but have no higher value than that.
[ 16] The prop er approac h to the assess ment of damages in matters such as
the present includes the evaluation of the persona l circumstances of the
plaint iff, the circumstances around the a rrest, as well as the nature and
duration of the detention 5.
[ 17] Essent ial to an appeal is the extent to which an appeal court can
interfere with the judgment of the court a quo on the issue of quantum . In
Road Accident Fund v Guedes 6. l2024] ZASCA 56, In quoting from LAWSA,
the court summarised the applicable principle s regard ing the interferen ce of
an appeal court:
' Where the amount of damag es is a matt er of estimation and discret ion, the appeal court
is genera lly slow to interfere with the award of the trial cou rt - an appellate tribunal cannot
simply substitute its own award for that of the trial court. I loweve r, once it has concluded
that interference is justified ... the appeal court is entitled and obl iged to interfere .·
[ 18] Interference is warranted only in specific circumsta nces, such as where
there has been an irregu larity or material misdirection, where the decision was
based on totally inadequate facts, or where the awa rd is so excessive or so
low that it induces a sense of shock, implying that the court did not exercise
its discretion properly.
5 CJ Mokonyane v Minister of Safety & Security and Another (33976/08) (20 I 0] ZAGP PHC 183 (5 November
20 I 0) para 9.
6 Road Accident Fund v Guedes (611 /04) [20061 LASCA 19; 2006 (5) SA 583 (SCA) (20 March 2006) para 8.
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[19] Ultimatel y, the award must be fair and proportionate to the injury
inflicted. In Zondo v Minister of Police 7the court emphas ised that 'our law
requires a reasonable correlation between the injury sustained and the
compensation awarded. '
Analysis: The quantum of damages
[20] The appe llant contends that the magistrate adopted a ' mechanical
calculat ion' by focusing almost exc lusively on the 48-hour duration of the
detention , at a rate of approximately R20 000 per day, and failed to weigh the
numerous aggravating factors present in this case properly.
[21] The magistrate's judgment , after setting out the facts , referred to three
previous awards involv ing s horter periods of detention and arrive d at a R40
000 award. The issue is w hether this discloses a material misdirection
warrantin g the interfer ence o f this Court.
[22] In her judgment, the magi strate did not state that she was calculat ing a
daily rate. In considering the judgment of the Court a quo in its total ity, it
appears that after consideration of the facts and comparable cases, the
Magistrate arrived at a figure she considered app ropriate. This is precisely the
kind of evaluative judgment that falls within a trial court' s discretion.
[23] The appellant argues that the magistrat e failed to attach sufficient
weight to the aggravat ing factors. However , the weight to be attached to
various factors is a matter for the exercise of discret ion. A mere difference of
1 Zondo v Minister of Police (2024/083242 ) [ 2025J ZAGPJI IC 11 40 (6 Nove mber 2025) para 13.
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opinion on the weight of any particular factor does not constitute a materia l
misdirection.
(24] The appellant argues that the magistrate shou ld have awarded more
because of the particu larly egreg ious circumstances. However, R40 000 for a
48-hour detention is not a nominal amount . It is w ithin the range of awards
that courts have made in comparab le matters. Whether it is at the lower end
of the range is a matter ofjudgment, not a matter of law.
(25] The appellant elected to present her evidence by way of affidavit, which
is permissible in default jud gment proceedings in terms of the Magistrates '
Courts Rules 8. However, this procedural cho ice defines the scope of the
evidence before the court a quo. The appellant's affidavit set out the facts of
the arrest and detention in detail, but did not contain expert psychological
evidence quant ifying the emot ional harm or evidence of any special damages.
The Gourt a quo had before it only the appellant's own account of her
suffering, but no expert corroboration.
[26] A review of recent case law reveals that the conditions described by the
appellant are regrettably common. These cases demonstrate that courts are
frequently confronted with evidence of dirty cells, broken toilets, inadequate
bedding, and overcrowding. These cond itions have become so ubiquitous in
unlawful detention claims that they might properly be regarded as the baseline
against which claims are assessed, rather than as aggravating factors
justifying a premium.
8 Magistrate 's Court Ruic 12(4 ).
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[27] If most cases where the plaintiff compla ins of dirty cells and broken
toilets were treated as presenting 'special circu mstances' warrant ing an
elevated award, the baseline for damages would steadily increase . This could
give the impression that unlawful detent ion claims are like a lottery, whe re
the existence of poor cond itions, however freque nt, justifies increas ingly
higher awards.
[28] Such an approach would offend the principle stated in Tyulu9 that the
purpose is not to enrich the aggrieved party but to offer solatium for injured
feelings.
[29] On this evide nce, the award of R40 000.00 cannot be said to be so
unreasonab le that no court properly directing itself could have arrived at it.
The awar d i s within the range of permissible options availab le to the
magistrate.
[30] The appellant has not estab lished that wro ng principle s influenced the
magistrate's decision, or that she misdir ected herse lf on the facts, or that her
decision could not reaso nably have been reached by a court properly directing
itself. In the absence of such a case on appeal, this Court cannot interfere.
[3 1] The appeal on quantum must therefore fail.
Legal principles in the discretion in awarding costs
[32] The appe llant also appea ls against the mag istrate's omissio n to award
the costs of drafting the heads of argument, despite a spec ific prayer for these
9 Op cit fn 1.
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costs. In the appellant's written heads of argument filed in the court a quo, the
appellant prayed for 'a cost order on a party and party scale including the cost
of preparation and drafting the heads of arguments as well as the travelling
fees.' This prayer was repeated in the conclusion of those subm issions.
[33] The magistrate's order specific ally included 'preparat ion and travelling
costs' but omitted heads of argument costs. No reason was given for this
om1ss1on.
[34] The question is, in exercising the Magistrate's discretion in awarding
costs, whether this omission constitutes a material misdirection.
(35] The award of costs is likewi se a matter within the discretion of a court.
In Zuma v Office of the Public Protector and Others 10, the SCA stated:
' In granting a cost order. a lower cowt exerc ises a true discretion. An appellate court will
not interfere with the exercise of that discretion unless there was a material misdirection
by the lower court.'
(36] The SCA elaborated further on this issue as follows 11 :
·Interference is warranted only where the discretion was not exerc ised judicially; the
decision was influenced by wrong principles: the decision was affected by a misdirection
on the facts: or the decision could not reasonably have been reached by a court properly
directing itself to the relevant facts and principles. It is not sufficient on appeal against the
cost order simp ly to show that the lower courts order was wrong. '
10 Zuma \' Office of the Public Protector and Others ( 1447'2018) (2020] LAS CA 138 (30 October 2020) at
para 19.
11 Op cit fn 10, para 20.
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[37] In Directive 6.11 of the Regiona l Com1 Practice Directive s12 it is stated:
'Unop posed appl ications and default judgments shall be dealt with on the papers which
shall include heads of argumen ts or written submissions from the party concerned where
necessary. Such heads of argument shall be filed electronically with the
Registrar/Ass istant Registrar or where so direc ted, with the presiding officer conce rned:
( emphasis added)
[38] The presence of these items in the tariff does not create an automatic
entitlement by a party to litigat ion. It merely provides a mechanism for
charging for this work if it was necessar ily performed. The taxing master
retains the discretion to disallow the item if the heads of argument were
unnecessary, prol ix, or otherw ise not required.
[39] In Ngema v Road Accident Fund 13 in referr ing to Port Elizabeth Road
Transportation Board v Liesing
14 and Jackson and Ginsburg, NNO v
Steenkamp
15, Nicho lson J considered a similar issue and stated:
·I am of the view that the ratio in the cases ofMeybu rg and Liesing is correct. The corollary
of this is that if there is a Practice Directive of this division that heads of argument be filed
by both pru1ies in Opposed Motion proceedings, fees relating to heads of argument must
be allowed .'
[ 40] These authorities establ ish that heads of argument are prepared
primarily to assist and conve nience the court in understa nding and deciding
the case. The costs of prepar ing or perusing heads of argument are not
automatically recoverable. Recoverability depends on whether the heads of
12 The Regional Court Practice Directives (2024 Revision).
13 Ngenw v Road Accident Fund (234/2005) [2008] ZAKZHC 98 ( I January 2008) para 14.
14 Port Eli=abeth Road Transponution Board v liesing 1968 (4) SA 401 (E).
15 .Jackson and Ginsburg, NNO v Steenkamp 1973 (I) SA 309 (T).
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argument were required by the Rules of Court or by a practice directive. If
they were not requir ed, the taxi ng master has a discretion to disallow them.
Analysis: The discretion in awarding costs
[ 41] In the Regional Cou rt, w hich is a c reature of statute witho ut inherent
jurisdiction, the recoverability of costs is strictly governed by the rules.
Practice directive 6.11 permits the filing of heads of argument in unopposed
motions "where necessary," but it is not mandatory. The determination of
necessity is a matter for the court's discretion and, ultimat ely, for the taxing
maste r on taxation.
[ 42] Jn the Regional Court, practice directive 6.11 permits the filing of heads
of argument 'where necessary', but it is not mandatory. No rule or practice
direct ive requir es the filing of heads of argum ent in defaultjudgment matters.
The determination of necessity is a matter for a court 's assessment.
[ 43] The Magistrate may have considered that the heads of argume nt were
not necessary, or that the preparation fee adequately covered them, or that the
time spent on them was excess ive. In the absence of any indication to the
contrary, we must assume that the magistrate exercised her discretion
properly.
[44] Crucia lly, the appellant bore the burden of placing a compl ete record
before this court to demonstrate a misdirection. The record does not contain
a transcript of the proceedings or a note by the magistrate recording what
occurred. This Court cannot spec ulate about what submission s were made on
the date of the hear ing before the Court a quo. The absence of evidence means
this Court cannot conclude that the Magistrate misdirected herself.
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[ 45] Moreover, even if it could be determined what, if anything, moved the
Magistrate to make the cost order in the manner she did, the Magistrate's
decision falls within the range of permissible options available to her. As
stated in Zuma 16 , interference by an appeal court is warranted only where the
discretion was not exercised judicially, or the decision was influenced by
wrong principles, or the decision cou ld not reasonably have been reached by
a court properly directing itself. The appellant has not established any of these
grounds.
[46] The determination of whether heads of argument were 'necessary' is
ultimately a matter for the taxing master on taxation. The court's costs order
establishes the basis and scale of costs . The taxing master then determines , in
the exercise of his or her specialised discretion, wh ich specific items were
necessarily incurred.
[47] The Court a quo 's general order for costs on a party and party scale,
which included 'preparat ion and travelling costs', is suffic ient to allow the
taxing master to consider whether heads of argument were necessarily
incurred. If the taxing master concludes that they were, he or she may allow
them under the genera l order. If not, they may be disallowed.
[ 48] The appea l must therefore fail.
16 Op cit fn 10.
Order
[ 49] In the result, the following order is made:
1. The appea l is dismissed.
2. The order of the court a quo is confirmed.
3. There shall be no order as to the costs of the appeal.
M WESSELS
ACTING JUDGE OF THE HIGH COURT
NORT H WEST DIVISIO N, MAHIKENG
I agree
T MASIKE
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISlON, MAHIKENG
Appearances
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For appe llant
Instructed by
:Adv D Sm it
:Jan Ellis Attorneys
:Mahikeng
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