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Introduction
[1] This is an application for leave to appeal against the quantum of damages
awarded to the respondent (plaintiff in the main action) in my judgment
handed down on 6 October 2025.
[2] At the hearing of the application, on 31 March 2026, I issued an order in the
following terms:
2.1. Condonation for the late filing of the application for leave to appeal is
granted;
2.2. Leave to appeal is refused with costs;
2.3. Written reasons for the judgment to be issued on or before 30 May
2026;
[3] I granted condonation, principally because the period of delay was minimal,
the explanation for the delay was satisfactory, and it would be the interest of
justice to grant condonation.
[4] The completion of the judgment by 30 May 2026 took slightly longer than what
I had initially anticipated. I apologise to the parties for any inconvenience this
may have caused.
The issue to be determined
[5] The applicant (the defendant in the main action) is not challenging the legal or
factual findings in the judgment. Leave to appeal is sought only in respect of
the quantum of damages awarded to the respondent.
Analysis of the applicant’s grounds of appeal
[6] In his application for leave to appeal, the applicant states that I misdirected
myself by placing too much emphasis on the extent of the injuries suffered by
the respondent, the assault and his period of detention. In relation to the
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respondent’s detention, the applicant points out that he was only in custody
for one day, following his release on bail.
[7] The awarding of damages is an exercise of judicial discretion, guided by
established legal principles 1 on the one hand, and the specific circumstances
of each case, on the other.
[8] When a party seeks to challenge the exercise of judicial discretion, on appeal,
he is required to demonstrate that the discretion was not exercised judicially.
In Colett v Commission for Conciliation, Mediation & Arbitration & others 2 the
Court confirmed the test adopted in Mabaso v Law Society, Northern
Provinces & another 3, it said:
“[29] A court of appeal will not lightly interfere with the exercise of a
judicial discretion by a lower court. An appellant who challenges the
exercise of a judicial discretion will have to show that such discretion
was not exercised judicially . More specifically the appellant will have
to show that the court a quo either —
29.1 failed to bring an unbiased judgment to bear on the matter;
29.2 did not act for substantial reasons;
29.3 exercised its discretion capriciously or arbitrarily;
29.4 exercised its discretion upon wrong principle;
29.5 committed a misdirection of such a serious nature and
degree as to justify a conclusion that it acted improperly or
unreasonably.
[30] The legal position was summarized as follows by the Constitutional
Court:
'It is trite law that a court considering whether or not to grant
condonation exercises a discretion. The discretion must, of course
be exercised judicially on a consideration of all the facts and "in
essence it is a matter of fairness to both sides". It is clear that the
SCA may decide an application for condonation without considering
the merits of the case, though it does so only where there is a gross
and flagrant failure to comply with the rules. Ordinarily, the
approach of an Appellate Court to the exercise of such a discretion
is that it will not set aside the decision of the lower court "merely
is that it will not set aside the decision of the lower court "merely
because the Court of appeal would itself, on the facts of the matter
before the lower court, have come to a different conclusion; it may
interfere only when it appears that the lower court had not
exercised its discretion judicially, or that it had been influenced by
wrong principles or a misdirection on the facts, or that it had
1 Melane v Santam Insurance Co Ltd 1962 (4) SA 531
2 (2014) 35 ILJ 1948 (LAC)
3 2005 (2) SA 117 (CC)
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reached a decision which in the result could not reasonably have
been made by a court properly directing itself to all the relevant
facts and principles. ’
[9] The applicant continues, stating that I erred in having awarded damages that
far exceeds a standard that other courts have upheld in relation to the
assessment of damages. In this regard I was referred to the following
authorities: Daniel Malebadi Motladile v Minister of Police, Police [SACR
274(SCA) 12 June 2023, [2023]; Ngwenya v Minister of Police (924/2016)
[2019] 3 ZANWHC 3 (February 7. 2019); Spannenberg and Another v Minister
of Police: Case Number 2993/2019 (24 February 2022); Mocumi v Minister of
Police and Another, CIVAPP9/2021, (3 December 2021); Motladile v Minister
of Police (414/2022) [2023] ZASCA 94, 2023 (2) SACR 274 (SCA) 12 June
2023;Daniel Malebadi Motladile v Minister of Police, Police [SACR 274(SCA)
12 June 2023, [2023]; Mocumi v Minister of Police and Another CIV
APP9/2021 (Dember 2021) (NW), Tobashe v Minister of Police and Another
CIV APP MG 10/2021 (3 Dember 2021) (NW) and Thandani v Minister of law
and order 1991(1) SA 702 at 707A-B,
[10] I have considered the authorities referred to and will discuss them below. The
import of these authorities, the applicant sought to advance, are the following:
10.1. Since the SCA in Motladile awarded damages for unlawful arrest and
detention in the amount of R260 000 (having substituted that amount
with the damages of R60,000.00 awarded by the trial Court), that I
should have awarded the respondent an amount in that range;
10.2. the award of damages granted in the present matter far exceeds that
standard that other courts have upheld in relation to the assessment
of damages, where amounts averaging between R15,000.00 and
R18,000.00 were awarded for each day that the person was in
custody;
10.3. An amount of R15,000.00 per day is a reasonable amount to be
awarded;
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10.4. In as much as there are also differences in amounts awarded by the
SCA as compensation or solatium, there is of late an attempt to strive
for similarity of conformity, but that each case must however be
decided on its own facts, merits and circumstances;
10.5. The courts have generally awarded R45,000.00 per day for each day
that the person was in custody.
[11] For completeness sake, I consider it important to revisit the authorities relied
on by the applicant.
[12] Motladile, a matter on appeal at the Supreme Court of Appeal, concerned an
award of R60 000 granted by the High Court (North-West Division) arising
from the plaintiff’s unlawful arrest and detention for a period of four days. The
court of first instance followed a “mechanical” approach adopted in the
division in cases of this nature, and simply awarded R15 000 for each day of
the unlawful arrest. The SCA rejected this approach as overly rigid, holding
that it failed to consider the full context of each case beyond the duration of
detention and, consequently, that the court had not exercised its discretion
properly.
[13] The court emphasised that a proper assessment of damages requires
consideration of multiple factors, such as the circumstances of the arrest and
detention, the presence or absence of malice or improper motive, the conduct
of the defendant, the nature of the deprivation of liberty, the plaintiff’s status,
any apology or explanation offered, comparable awards, publicity surrounding
the arrest, concurrent infringements of rights, and any contributory conduct by
the plaintiff. Having had regard to these factors, the court found that an award
of R200 000, together with interest at 7% per annum from the date of service
of summons to the date of payment, was appropriate, and accordingly
substituted the order of the court a quo with that amount, including costs.
[14] The facts in Ngwenya, were the following. He was arrested, without a warrant
by members of the South African Police Service, for alleged malicious injury to
by members of the South African Police Service, for alleged malicious injury to
property after he cut a fence during a dispute over a stand of land. The fence
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was allegedly cut on 5 August 2015. The police interacted with him on 7
August and again on 17 August 2015 but did not affect an arrest on those
occasions. On 28 August 2015, while he was erecting a shack on the disputed
property, the was arrested. He was detained for four days. The Minister of
Police argued that the arrest was lawful under section 40(1)(b) of the Criminal
Procedure Act because the police reasonably suspected that the plaintiff
committed a Schedule 1 offence.
[15] The Court found Ngwenya’s arrest was unlawful and that his subsequent
detention was also unlawful. It held the Minister of Police liable for 100% of
the plaintiff’s proven damages. A later judgment on quantum awarded the
plaintiff: R45 000 damages for unlawful arrest and detention and costs on the
Magistrates’ Court scale.
[16] Spannenberg concerned a case of two men who were unlawfully arrested and
detained by members of the South African Police Service. The North-West
High Court found their arrest and detention to be wrongful, awarding each
plaintiff R18,000 in damages plus interest and costs. The Court reaffirmed that
police officers must have a lawful basis for arrest under the Criminal
Procedure Act, and that the failure to do so rendered both the arrest and
detention unlawful, entitling victims to damages. The Court awarded R18,000
each to the plaintiffs, emphasising constitutional protections against arbitrary
deprivation of liberty.
[17] In Mocumi the facts were the following. On 29 January 2020, Mr. Papakie
Frans Mocumi and his colleagues were working at the Mafikeng Mental
Hospital rendering landscaping/gardening services, when three marked police
vehicles arrived. He and one of his colleagues, Mr. Joseph Tobase Khukwane
were accused of having stolen a plasma television set. He was arrested and
transported to the Mafikeng Police Station where he was detained for three
days. He never appeared in Court. He was later released, and told to ‘go
home and do not look back’ . Aggrieved by the treatment he received, he
home and do not look back’ . Aggrieved by the treatment he received, he
decided to take action against the police.
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[18] On appeal the High Court, having considered all the facts and circumstances
of his case, as well as the personal circumstances of the appellant, awarded
an amount of R15 000.00 per day, totaling R45 000.00, as reasonable and
appropriate solatium.
[19] The facts in Thandani, were the following. He was unlawfully arrested by
members of the South African Police. Following his arrest, the police handed
him over to the Ciskei authorities. He was then detained by the Ciskei police
for approximately 59 days without lawful justification. Thandani instituted a
damages claim against the Minister of Law and Order, arguing that the
unlawful arrest by the South African police ultimately caused the entire period
of his detention.
[20] The case of the respondent (plaintiff in the main action) is on the whole
distinguishable from the referenced authorities. Those cases are not
comparable to what the the plaintiff, in the matter before me, was subjected to.
The individuals in the cases cited were not subjected to continuous and
sustained physical assault, in handcuffs, in the presence of other police
officers, nor were they refused medical treatment.
[21] The applicant correctly cites Minister of Safety and Security v Seymour where
it was held that -
“The assessment of awards of general damages with reference to awards
made in previous cases is fraught with difficulty. The facts of a particular
case to be looked as a whole and few cases are directly comparable. They
are useful guide to what courts have considered to be appropriate, but
they have no higher value than that” .4 (Own emphasis)
[22] The applicant also laments the issue of comparable awards as a basis to
suggest that I have exercised my discretion on the wrong facts and the law. I
disagree. In Protea Assurance Co. Limited v Lamb 5 the Court held:
“The Court may have regard to comparable cases. It should be
emphasised, however, that this process of comparison does not take the
form of a meticulous examination of awards made in other cases to fix the
form of a meticulous examination of awards made in other cases to fix the
4 (2006) (6) SA 320 (SCA) at para 17. Ibid para 8 Caselines 017 – 21.
5 (1971) (1) SA 530 (A) at 535H – 536B.
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amount of compensation ; nor should the process be allowed so to
dominate the enquiry as to become a fetter upon the Court's general
discretion in such matters. Comparable cases, when available, should
rather be used to afford some guidance, in a general way, towards
assisting the Court in arriving at an award which is not substantially out of
general accord with previous awards in broadly similar cases, regard
being had to all the factors which are considered to be relevant in the
assessment of general damages. At the same time, it may be permissible,
in an appropriate case, to test any assessment arrived at upon this basis
by reference to the general pattern of previous awards in cases where the
injuries and their sequelae may have been either more serious or less
than those in the case under consideration.” (Own emphasis)
[23] When exercising its discretion, a Court is not reduced to engaging in a
mechanical exercise, it encompasses a consideration of a number of
interrelated factors as confirmed by the SCA in Motladile, it stated a t
paragraph 17 of that judgment:
‘The assessment of the amount of damages to award a plaintiff who was
unlawfully arrested and detained, is not a mechanical exercise that has
regard only to the number of days that a plaintiff had spent in detention.
Significantly, the duration of the detention is not the only factor that a
court must consider in determining what would be fair and reasonable
compensation to award. Other factors that a court must take into account
would include (a) the circumstances under which the arrest and
detention occurred; (b) the presence or absence of improper motive or
malice on the part of the defendant; (c) the conduct of the defendant; (d)
the nature of the deprivation; (e) the status and standing of the plaintiff; (f)
the presence or absence of an apology or satisfactory explanation of the
events by the defendant; (g) awards in comparable cases; (h) publicity
given to the arrest; (i) the simultaneous invasion of other personality and
given to the arrest; (i) the simultaneous invasion of other personality and
constitutional rights; and (j) the contributory action or inaction of the
plaintiff.’
[24] In L A Sefuthi v RAF 6 the court held that:
“When considering general damages, a court has a wide discretion to
award what it considers to be a fair and adequate compensation for the
injured party. In considering the amount to be awarded for g
eneral
damages it is acceptable to have regard to awards issued in comparative
cases, although it is immediately recognized that it is hardly possible to
find a case or cases that are on all fours with a particular set of facts.
Ultimately, in determining general damages a broad discretion is exercised
by the court based on what it considers fair and adequate compensation.
The nature, severity and permanency of the injuries sustained, together
6 (303/2019) 14 October 2022 FSHC (unreported) at para 35 – 37.
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with pain and suffering, disfigurement, permanent disability and the effect
thereof on the person’s lifestyle are aspects to be considered”.
[25] In Thandani v Minister of Law and Order 1991 (1) SA 702 (E) at 707A – B,
Van Rensburg J held as follows:
‘In considering quantum sight must not be lost of the fact that the liberty
of the individual is one of the fundamental rights of a man in a free
society which should be jealously guarded at all times and there is a duty
on our Courts to preserve this right against infringement. Unlawful arrest
and detention constitutes a serious inroad into the freedom and the
rights of an individual.’
[26] In our modern South Africa, a just award for damages for wrongful arrest and
detention should express the importance of the constitutional right to
individual freedom. As a country founded on constitutional norms, a person
ought to be protected by the police, not harmed. In dealing with what is
expected in a modern South Africa, the Court in Olgar v The Minister of
Safety and Security 2008 JDR 1582 (E) para 16, per Jones J, remarked as
follows:
‘In modern South Africa a just award for damages for wrongful arrest and
detention should express the importance of the constitutional right to
individual freedom, and it should properly take into account the facts of
the case, the personal circumstances of the victim, and the nature,
extent and degree of the affront to his dignity and his sense of personal
worth. These considerations should be tempered with restraint and a
proper regard to the value of money, to avoid the notion of an
extravagant distribution of wealth from what Holmes J called the 'horn of
plenty', at the expense of the defendant.’
[27] I have carefully considered the circumstances around the respondent’s arrest
and detention and persist with my conclusion that the basis for the award of
damages was sound.
[28] This brings me to the question whether the applicant made out a case for
leave to appeal. The test for leave to appeal has been settled in MEC for
leave to appeal. The test for leave to appeal has been settled in MEC for
Health, Eastern Cape v Mkhitha 7. The Court eloquently explained the effect
of the amendment of section 17(1)(a) as follows:
7 [2016] ZASCA 176 paras 16-18
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“Once again it is necessary to say that leave to appeal, especially to this
court, must not be granted unless there is truly a reasonable prospect of
success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it
clear that leave to appeal may only be given where the judge concerned
is of the opinion that the appeal would have a reasonable prospect of
success; or there is some other compelling reason why it should be
heard. An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance of on
appeal. A mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There must be a sound, rational basis to
conclude that there is a reasonable prospect of success on appeal. (Own
emphasis)
[29] The primary basis for leave to appeal is whether “a reasonable prospect of
success exists”. 8 The test remains whether or not there is a reasonable
prospect that another court may
come to a different conclusion.
[30] In S v Smith 9 the Supreme Court of Appeal further held that:
"What the test of reasonableness prospect postulates is a dispassionate
decision, based on the facts and the law, that a Court of appeal could
reasonably arrive at a conclusion different to that of a trial Court. In order to
succeed therefore, the defendant must convince this Court on proper
grounds that he has prospects of success on appeal and that those
prospects are not remote, but have a realistic chance of succeeding. There
must in other words be a sound, rationale basis for the conclusion that there
are prospects of success on appeal ".
[31] I have carefully considered the application for leave to appeal. it fails to
establish with any measure of certainty that another Court would differ from
the decision I have arrived at.
Conclusion
[32] In summary then. The applicant has failed to prove that I did not exercise my
discretion judicially. Accordingly the application for leave to appeal must fail.
discretion judicially. Accordingly the application for leave to appeal must fail.
[33] In the result, I confirm the following order:
8 Section 17(1)(a)(i) of the Act.
9 South African Criminal Law Reports 2012 (1) at page 576 para 7