IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION , MBOMBELA
CASE NO: 4211/2022
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES/NO
SIGNATURE
19 Mar. 26
DATE
ELLIOT FRANK SOLOMONS
and
THE MINISTER OF POLICE
PLAINTIFF
DEFENDANT
This judgment was handed down electronically by circulation to the parties and/or
parties' representatives by email. The date and time for hand-down is deemed to be
19 March 2026 at 10:00.
JUDGMENT
Nobanda AJ
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Introduction
[1] Plaintiff issued summons against the Minister of Police (“the defendant”)
claiming damages against the defendant in his capacity as an employer
grounded on the basis of vicarious liability for the alleged acts /conduct of the
defendant’s employees, the members of the South African Police Services (“the
police officers”) for unlawful detention, unlawful search of the plaintiff’s property
and assault. The plaintiff claims a total amount of R890 000.00 made up as
follows:
1.1 unlawful arrest and search R 80 000.00
1.2 assault and torture R 750 000.00
1.3 unlawful detention R 60 000.00
[2] The defendant is defending the action. In his plea, the defendant raised
a special plea to the effect that the plaintiff failed to comply with the provisions
of sections 5 (1)(b) (ii) and section 2(2) of the State Liability Act,1 as amended,
in that the plaintiff failed to serve the process on the National and Provincial
Commissioner of Police, the Head of Department , and the office of the State’s
Attorney. In addition, the defendant pleaded over bare denials to the plaintiff’s
claim.
[3] The plaintiff's case proceeded on both the issues as to liability (merits)
and the quantum of damages claimed. The defendant did not p ersist with the
1 State Liability Act 20 of 1957.
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special plea that he had initially raised. The plaintiff testified in his stead and
called one other witness, the plaintiff’s wife. The defendant did not call any
witnesses and closed his case after the plaintiff’s case.
Summary of Evidence
[4] The plaintiff testified that on or about 14 July 2022 and at around 01h00
in the morning, he was awoken by approximately eight police officers who had
entered his bedroom. The police officers dragged him out of bed, threw him to
the floor and proceeded to handcuff his hands behind his back. They then
demanded that he produce a firearm. As he ha d a licenced revolver, he
indicated with his head that it was under the pillow where he had been sleeping.
The police officers proceeded to retrieve the firearm, whereinafter, they told him
that they were seeking a rifle and not that revolver. He denied possessing any
rifle, which prompted the police officers to order him to kneel. Whilst kneeling,
one of the police officers placed his knee on his back, causing him to lean
forward and placed a Shoprite groceries plastic bag over his head, covering his
face and strangled him with it, admonishing him and tel ling him that he will
produce the rifle. Consequently, he passed out from being suffocated with the
plastic bag.
[5] They waited for him to come to, whereinafter they repeated the process.
Yet, only this time, after filling th at plastic bag with water, whilst it had covered
his face, in order to drown him. He reiterated that he did not possess a rifle. He
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passed out again from the attempts to drown him . After removing the plastic
bag, they began a violent search of his room whil st other police officers
searched other parts of the house. They disruptively turned over his bedroom,
flipped over the mattress including its base. The police officers then tore the
mattress base open to search inside it.
[6] Thereafter, they took him to his tavern , which is adjacent to the house.
Inside the tavern , they threw him to the floor, ordered him to lie there , whilst
also searching the tavern. They asked him again where the rifle was and he
repeatedly told them that he did not own one. They then poured water over him
and started electrocuting him using an electrical extension cord. They were also
kicking him with booted feet in the process. Then one of the police officers hit
him on his forehead with the butt of a fire arm. He started bleeding from a cut.
To stop the beatings and torture, he ended up implicating one of his friends,
alleging that the rifle was at his place. That gave him relief as they took him into
one of the police double-cab vans to that friend’s place.
[7] On arrival, they started assaulting the friend, telling him that the plaintiff
had confessed that the rifle was in his possession. His friend denied it. Then
one of the police officers asked him if he didn’t say that the rifle was at his
friend’s place, to which he confessed that he only said so because he wanted
the beatings and torture to stop. They then left the friend's place, took him to
some open veld where they uncuffed him. They released him to walk back home
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after threatening to kill him if he ever related the incident to anyone. Then they
left.
[8] He walked back home still wearing the shorts he had been sleeping in,
with nary a covering for his upper body. It was around 03h00 - 04h00 am that
he walked a few kilometres before he got home. Thereafter, he went to the
hospital to get treatment as his hands were swollen and he had cuts around his
wrists from the handcuffs. He also had a cut on his forehead and scrapes on
his right knee from being thrown to the rough plastered floor of the tavern and
from struggling to breathe as a result of being suffocated and electrocuted.
[9] When he got to the hospital and related what happened to him, he was
told to first go open a case with the police , bring a case number and only then
would he receive treatment and obtain a J88 form completed by the treating
doctor. He went to the police station, opened a case and went back to the
hospital, where he was treated by a doctor who also completed a medico-legal
report.
[10] As a result of that incident, the plaintiff explained that he no longer stays
in the house where he used to live with both of his elderly parents. He now
merely visits the place to check up on his parents. He had moved to stay with
his sister for a period of approximately one year, whilst building another house
to live in with his family, a wife and four children.
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[11] He explained that he is still traumatised by the incident , especially when
he sees police officers and when he sees the scars that are still visible around
his wrist s and forehead. He has nightmares of that incident , which have
negatively affected his sleeping pattern. He related that the pain he felt on that
day when they electrocuted him was a pain that he had never experience d
before. He described it as pain that felt as if someone was cutting him in half.
[12] He testified that the incident had negatively changed his life. He felt he
had lost his dignity, especially when he was assaulted in his wife’s presence.
[13] The plaintiff’s wife confirmed that the incident took place and
corroborated the plaintiff's evidence in all material respects. She testified that
she opened the door in the early hours of that morning after hearing the rough
and rapid knocking on the door by people who identified themselves as police
officers. She confirmed the strangulation of the plaintiff with the use of a plastic
bag, whereafter, she was told to wait outside. As a result, she did not witness
the subsequent continuation of the assault and torture. She nevertheless
confirmed the departure of the police officers with the plaintiff and his return in
the early hours of that morning.
Submissions by the parties’ legal representatives
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[14] Mr Slabber submitted on behalf of the plaintiff that the plaintiff discharged
the onus that rested on him and proved that he was assaulted, tortured ,
detained and his home unlawfully searched by members of the defendant on
the day of the incident and accordingly, that the defendant was liable for the
damages suffered by the plaintiff as pleaded.
[15] The defendant’s legal representative, Ms Dlamini, argued on the other
hand that there was no proof that the people who were involved in that incident
were police officers. Furthermore, she argued that the plaintiff contradicted
himself when he denied or retracted that part of his statement that he had made
to the police , alleging that he did not know whether or not those people who
attacked him were police officers.
[16] It was pointed out to Ms Dlamini that that was the only contradiction, if
one may call it that, that the plaintiff had made, which in any event , was
immaterial as the plaintiff’s viva voce evidence that they were police officers
was corroborated by the plaintiff’s wife. The plaintiff’s wife described that they
were wearing police uniforms with bulletproof vests that read “police”. They also
wore shoulder flashes denoting their ranks and drove in marked police motor
vehicles. Other than that, other parts of the plaintiff’s statement were consistent
with his evidence in chief and what was recorded by the doctor in the medico -
legal report the doctor filled out on that day in the hospital.
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[17] Accordingly, I am satisfied that the plaintiff has proved , on a balance of
probabilities, that the persons involved in this incident were police officers.
[18] There was no dispute by Ms Dlamini, correctly so in my view, that the
plaintiff was assaulted and tortured as testified to by the plaintiff. Furthermore,
that the plaintiff’s premises were searched without a warrant or the consent of
the plaintiff; and that the plaintiff was detained as argued by Mr Slabber.
[19] Accordingly, I also find that the plaintiff has proved on a balance of
probabilities that he was assaulted, tortured , and detained as alleged and that
his premises were unlawfully searched , as testified to by the plaintiff. In the
light thereof, the plaintiff is entitled to the damages as claimed.
Quantum
[20] Mr Slabber, submitted that the plaintiff should be awarded a global figure
of between R500 000.00 and R570 000.00, having regard to the comparable
case of Ndlovu v Minister of Police,2 where the plaintiff was similarly assaulted
and electrocuted after his arrest. The plaintiff was awarded an amount of
R286 836.00 for the assault, amongst other damages awarded, not relevant in
casu.
2 Ndlovu v Minister of Police - 2018 JDR 2034 (GJ).
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[21] In Poswa v Minister of Safety and Security,3 the plaintiff was awarded a
globular figure for general damages arising from the assault and torture with
their sequelae in the amount of R353 697.00. In Fisa v Minister of Police ,4 on
appeal, the plainti ff was awarded an amount of R473 895.00 for general
damages arising from the assault and torture.
[22] Mr Slabber submitted that the facts in Fisa (supra) are more similar to the
facts in casu. Further, that the plaintiff in casu should be awarded more because
the assault took place in the sanctity of the plaintiff’s home where the plaintiff
was supposed to feel safe.
[23] Ms Dlamini, on the other hand, submitted that the amount proposed by
Mr Slabber was unreasonably high, having regard to the amounts awarded in
the cases relied upon by the plaintiff. Ms Dlamini contended that the court
should bear in mind that the award is not to make the plaintiff rich but is given
as solatium for the damage s suffered as a result of the incident. Ms Dlamini
relied, in this regard, on the Supreme Court of Appeal case of S v Tyulu 5 , and
to that end, Ms Dlamini submitted that a global figure of R150 000.00 would be
a fair and reasonable amount.
3 Poswa v Minister of Safety and Security 2011 JDR 1260 (ECP)
4Fisa v Minister of Police - 2016 JDR 0769 (ECGEL)
5 Minister of Safety and Security v Tyulu 2009 (2) SACR 282 (SCA) para 26.
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[24] Ms Dlamini also sought to argue that the plaintiff did not have expert
reports for the damages claimed and as such, submitted that there is no proof
that the plaintiff suffered the damages claimed. Ms Dlamini’s argument
appeared to suggest that the court would not be in a good position to award this
type of damages in the absence of expert opinions.
[25] There is no legal basis for Ms Dlamini’s contention. The court is in a
position to award this type of damages, which it often does, based solely on the
plaintiff's testimony . It is trite that the amount of general damages to be
awarded is within the discretion of the court , taking into account comparable
cases to assist the court in coming to a fair and reasonable amount , bearing in
mind the particular facts of the case before it. Hence, the amounts awarded in
those cases do not bind the court in exercising its discretion on awarding the
amount as to it seems meet . Accordingly, Ms Dlamini’s submission in this
regard is baseless.
[26] The plaintiff must have endured a harrowing night on that day .
Considering the period for which the plaintiff was detained, which is between
three to four hours, most of which entailed the assault and torture of the plaintiff.
In addition, the plaintiff had to endure the invasion of his privacy by the unlawful
search of his home at the early hours of the morning , whilst the plaintiff was
asleep with his wife, where he lived with his elderly parents . Thereafter, driven
around at that time, wearing only a short trouser/ pyjama without a top, dropped
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off in some veld and told to walk back home, approximately 1,5km away, must
have been a very traumatic day for the plaintiff.
[27] The physical scars on the plaintiff’s forehead are still visible,
approximately four years later, and the emotional trauma could be detected
from the plaintiff’s voice as he recounted that ordeal in every minute detail,
including the pain he felt when he was electrocuted, describing it as feeling like
someone was cutting him in half. The nightmares that the plaintiff explained he
was still having about that day which to some extent, were confirmed by his wife
that the plaintiff is restless at night and that his sleeping pattern ha d changed
as he now wakes up multiple times a night.
[28] It is true that no amount of money can compensate the plaintiff for the
trauma that he went through that night and the aftereffects that he experiences
even now. I agree with Ms Dlamini that the amount to be awarded is solatium
for the injury caused to the plaintiff and not to make the plaintiff rich , as was
held in Tyulu. However, t he award should nevertheless reflect that the court
considers what happened to the plaintiff that night to be serious and that it
acknowledges his pain and suffering.
[29] To that end, the following order is made:
(1) The defendant is vicariously liable for the actions of his members
on that day, to wit, the police officers.
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(2) The defendant to pay the plaintiff a globular figure for all heads of
the damages claimed by the plaintiff in the amount of
R480 000. 00.
(3) The defendant pay the plaintiff's costs of suit at High Court Scale,
8.
Appearances :
Counsel for the Plaintiff:
Instructed by:
Email Address:
Counsel for the Defendant:
Instructed by:
Email Address:
Date of hearing:
Date of judgment:
Mr Slabber
PL NOBANDA
ACTING JUDGE OF HIGH COURT ,
MPUMALANGA , MBOMBELA
Slabber Attorneys Inc
mp@fslaw.co.za I deon@fslaw.co.za
Ms Dlamini
NZ Dlamini attorneys
nzdlaminiattorneys@gmail.co .za
05 June 2025
19 March 2026
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