SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA DIVISION, MBOMBELA (MAIN SEAT)
In the application between:
CASE NUMBER: 5542/24
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED YES/NO
DATE __28 July 2026__
SIGNATURE H.F. FOURIE
N[...] M[...] FIRST PLAINTIFF
N[...] M[...] SECOND PLAINTIFF
obo S[...] N[...] T[...]
And
THE MINISTER OF POLICE FIRST RESPONDENT
______________________________________________________________
JUDGMENT
______________________________________________________________
FOURIE AJ
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INTRODUCTION:
[1] The First Plaintiff instituted action in the current matter both in her personal
capacity as well as in her representative capacity of her minor child,
resulting, as the Plaintiff alleges, from an unlawful arrest and detention by
members of the South African Police Service.
BACKGROUND:
[2] After service of the Summons , an electronic Notice of Intention to Defend
was served by the Defendant’s legal representatives on 31 January 2025 ,
which was subsequently set aside by an application under Rule 30 of the
Uniform Rules of Court, after which the Plaintiff proceeded in the current
action on an undefended basis.
[3] It is important to highlight that, at the hearing of the matter and after
evidence was led and argument presented by counsel appearing on behalf
of the Plaintiff, Advocate Makhubele, a note was passed to him from the
gallery by one Mr. Matsane who the Court is informed is a candidate
attorney employed by the State Attorney and which note indicates simply
that the State Attorney has not gotten hold of the Plaintiff’s attorneys
telephonically as the Plaintiff’s attorneys’ phone, seemingly resultant from
being in Court was switched off, and similarity that the Defendant has not got
access to the matter on Case Lines.
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[4] The Court was not confronted with any approach by the Defendants
themselves in respect of the matter; the Defendants were not present when
the matter was heard, nor was an application for postponement brought.
The Defendant’s legal representatives knew exactly where the Plaintiff’s
legal representatives were, as it is in the Courtroom, in the presence of
myself, that the Plaintiff's legal representatives were approached. The
approach by the Defendant’s legal representatives was brought to my
attention, I considered same, and I do not believe it has any influence on the
outcome of the matter, as the matter remains undefended.
FACTS:
[5] The only witness testifying in the matter was the First Plaintiff.
[6] Me M[...] testified that around 23h00 on 8 March 2024, she was arrested due
to a domestic violence dispute with the father of the minor child in question ,
the Second Plaintiff.
[7] After being arrested by members of the SAPS, she was detained by the
members of the SAPS, who instructed her to gather the belongings of her
minor child, who at that stage was 6 months old, including clothes and
blankets, for the 6-month-old baby to be taken with Me M[...] to the Police
station to be arrested.
[8] The evidence presented is indicative that, when she was arrested
Me M[...] was with friends and family.
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[9] The evidence led indicates that Me M[...] was detained in the police cells at
least from 02h00 on 9 March 2024 until she was taken to Court on
11 March 2024, where, without a trial, she was released with no charges
brought against her, at around 14h00 on the stated date. During the
detention of Me M[...], the minor child was at all stages with her.
[10] During the detention , Me M[...] testified that the cell they were kept in was
filthy, the conditions were unhygienic, and the blankets being utilised were
full of dirt.
[11] During their detention, Me M[...] and the minor were kept in a cell together
with another parent and her child, and at a certain stage two other
individuals.
[12] The Court accepts the evidence of Me M[...] to be truthful and
uncontradicting.
[13] The testimony of the Plaintiff , however, made no mention of any distress the
minor child experienced during the detention other than the obvious
uncomfortable position that the minor child would have been confronted with
given the nature of the detention.
[14] Although there are several portions of evidence which the Court would have
expected to receive in respect of the matter, the Court cannot disregard the
testimony of the Plaintiff herself , which evidence stands uncontested when
the matter was ultimately heard.
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[15] The evidence presented by the Plaintiff has met the threshold for all the
relevant elements for Judgment to be granted against the Defendant and in
favour of the Plaintiff in respect of the merits.
LEGAL PRINCIPLES:
[16] The legal principles pertaining to arrest and detention are settled in that an
arrest is prima facie unlawful and an invasion of a person’s constitutional
rights to freedom and liberty, and once an arrest is proven, the onus is on
the Defendant to justify the lawfulness of the arrest [1].
[17] Similarly, the Constitutional Court in Zealand v Minister of Justice and
Constitutional Development and Another [2], held that:
“It has long been established in our Common Law that every
interference with physical liberty is prima facie unlawful. Thus, once
the Claimant establishes that an interference has occurred, the burden
falls upon the person causing the interference to establish a ground of
justification.”
[18] The Constitutional Court in Mahlangu and Another v Minister of Police
held that
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“[t]he prism through which liability for unlawful arrest and detention
should be considered is the constitutional right guaranteed in section
12(1) not to be arbitrarily deprived of freedom and security of the person.
The right not to be deprived of freedom arbitrarily or without just cause
applies to all persons in the Republic. These rights, together with the
right to human dignity, are fundamental rights entrenched in the Bill of
Rights. The state is required to respect, protect, promote and fulfil these
rights, as well as all other fundamental rights. They are also part of the
founding values upon which the South African constitutional state is
built.” [3]
[19] Section 12(1) of the Constitution of the Republic of South Africa, 1996
(‘Constitution’), provides that
‘Everyone has the right to freedom and security of the person, which
includes the right—
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial’.
[20] The Constitutional Court in De Klerk v Minister of Police held that
‘The deprivation of liberty, through arrest and detention, is per se prima
facie unlawful. Every deprivation of liberty must not only be effected in a
procedurally fair manner but must also be substantively justified by
acceptable reasons. … What matters is whether, substantively, there was
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just cause for the later deprivation of liberty. In determining whether the
deprivation of liberty pursuant to a remand order is lawful, regard can be
had to the manner in which the remand order was made’. [4]
[21] In the current matter, the Court is not only confronted with the arrest and
detention of the Plaintiff in her personal capacity but also that of a minor
child.[5]
“Section 28(1) of the Constitution provides that every child has the
right-
(i) to family care or parental care, or to appropriate alternative care
when removed from the family environment;
(ii) to be protected from maltreatment, neglect, abuse or degradation;
(iii) not to be detained except as a measure of last resort, in which
case, in addition to the rights a child enjoys under sections 12 and
35, the child may have be detained only for the shortest appropriate
period of time, and has a right to be kept separately from detained
persons over the age of 18 years and treated in a manner, and kept
in conditions that take account of the child’s age. Subsection (2)
provides that a child’s best interests are of paramount importance
in every matter concerning the child.”
[22] The Constitutional Court in the matter of Raduvha v Minister of Safety and
Security and Another [6] has confirmed that:
“The detention of a child should be a measure of last resort.”
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EVALUATION:
[23] Nothing before this Court indicates that the Defendants acted lawfully when
the Plaintiff was arrested, and the Plaintiff together with the minor child was
detained. As such, an order in favour of the Plaintiff is warranted.
[24] All that remains is the quantification of the Plaintiff’s damages.
[25] When evaluating the damages sustained by the Plaintiff, the Court is guided
by what was stated in Minister of Safety and Security v Tyulu [7] where
the Court stated as follows:
‘In the assessment of damages for unlawful arrest and detention, it is
important 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 ensure that damages awarded are commensurate with the
injury inflicted. However, 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 personal liberty is viewed in our law …’
[26] I align myself with what was stated by Newgent AJ in Minister of Safety
and Security v Seymour [8] where the Court stated that:
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“Money can never be more than a crude selatium for the deprivation of
what in truth can never be restored, and there is no empirical measure
for the loss.”
[27] It remains the prerogative of every Presiding Judge in every matter to make
a ruling on what would be just and equitable under the circumstances to
compensate a Plaintiff for the loss suffered due to the actions of being
unlawfully arrested and detained. Although the Court may be guided by
previous legal precedent, it would still be determined on a case -by-case
basis of what would be appropriate to be ordered , having regard to the facts
of each specific matter, and the trials the Plaintiff would have endured in
respect of such matter. In evaluating previous cases , however, the Court
finds some guidance in what was stated when Mocumie JA stated in Van der
Nest N.O v Minister of Police [9] that:
“From a survey of cases it is reasonable to conclude, without setting a
bar, that the Court has ordered damages ranging from R 15 000 –
R 30 000 per night with awards varying in light of the circumstances of
each case. The award must be just, reflecting the importance of the
fundamental constitutional right infringed, the right of freedom of
movement and residence, and in this instance the right to dignity and
privacy.”
[28] The case the Court could find that resembles most closely the current facts
was the matter of EA and Others v Minister of Police [10], which dealt with
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the incarceration of a mother together with twins, then being one -and-a-half
years old.
[29] In that matter , the evidence presented, however, indicated horrific
circumstances under which the Plaintiff and the minor children were kept,
and unthinkable ordeals that they encountered during their stay of detention.
[30] In the current matter, luckily , although the detention was in undesirable
circumstances, several of the ordeals as in the previous matter were not
present.
[31] In the matter referenced , the Court awarded R 250 000.00 to the Plaintiff in
her personal capacity, and R 100 000.00 to each of the minor children.
[32] In the current matter, the Court finds no justification for the detention of a 6 -
month-old baby under circumstances where it is evident that other
arrangements in respect of this young child could have been made. The
detention of this young child was not a last resort but seems to have been
standard practice if regard is had to the fact that the current Plaintiff was
detained in a cell with another detainee facing a similar situation.
[33] Being subjected to the unlawful arrest and detention , an award in favour of
both Plaintiffs is warranted.
[34] I am of the view that an award in the amount of R 150 000.00 (one hundred
and fifty thousand rand) in respect of the Plaintiff in her personal capacity
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and R 150 000.00 (one hundred and fifty thousand rand) in respect of her
representative capacity is appropriate.
[35] During argument it was discussed with the Plaintiff’s legal representatives
that any award the Court might wish to make ought to be held in trust to the
benefit of the Second Plaintiff, which submission was accepted by counsel
appearing on behalf of the Plaintiff.
COSTS:
[36] Having found as aforesaid, the Court finds no reason to deviate from the
normal principles pertaining to costs and, under the circumstances, a Cost
Order on a party and party Scale B is justified.
ORDER:
[37] As a result, the following order is made:
[37.1] The Defendant shall pay damages to the Plaintiffs as follows:
[37.1.1] R 150 000.00 (one hundred and fifty thousand rand) to
the First Plaintiff; and
[37.1.2] R 150 000.00 (one hundred and fifty thousand rand) to
the Second Plaintiff.
[37.2] The First Plaintiff shall within 3 months of payment of the capital
amount due to the Second Plaintiff in terms of this Order do all
things necessary to achieve the establishment of a Trust and the
opening of a bank account of the Trust by the Trustees, and the
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Plaintiff’s attorneys shall do all things necessary to assist in
achieving this establishment of the Trust.
[37.3] Payment by the Defendant shall be made into a Trust of the
Plaintiff’s attorneys to be invested and held by them in a separate
interest-bearing account pending the establishment of the Trust and
the opening by the Trustees of a bank account.
[37.4] On the establishment of the Trust and the opening of a bank
account of the Trust, the Plaintiff’s attorneys shall pay the full
amount invested in such account as aforesaid, including the
accrued interest, into the Trust’s said bank account.
[37.5] The number of Trustees for the purpose of transacting the business
of the Trust (save for the appointment of the Trustees) shall be two
and such number for such purpose shall not be exceeded or
reduced.
[37.6] For purposes of the establishment of the Trust, the Trustees shall
be:
[37.6.1] The Plaintiff
[37.6.2.] Any attorney in the Plaintiff’s attorneys' office who is in
good standing with the Legal Practice Council.
[37.7] The terms and provisions of the Trust Deed shall not be amended
save with leave of the Court.
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[37.8] The Trustees shall provide security to the satisfaction of the Master
in terms of Section 9(2) of the Trust Property Control Act, 1988.
[37.9] The minor Plaintiff is exempted from furnishing security.
[37.10] The Trust beneficiary shall be the Second Plaintiff only.
[37.11] In respect of the action, the Defendant shall pay the costs on a
party and party Scale B.
________________________
H F FOURIE AJ
ACTING JUDGE OF HIGH COURT, MBOMBELA
Counsel for the Plaintiff: Adv DF Makhubele
Instructed by: Mathebula & Mathebula Attorneys Incorporated
Matter heard on: 27 July 2026
Judgement delivered on: 29 July 2026
______________________________________________________________
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[1] Maritz v Minister of Police 661/2021 [2025] ZANWHC 8 (15 January 2025)
[2] Zealand v Minister of Justice and Constitutional Development and Another
[2008] ZACC 3; 2008 (6) ZACC3; 2008 (6) DCLR 601 (CC) at paragraph 25
[3] Mahlangu and Another v Minister of Police 2021 (7) BCLR 698 (CC); 2021 (2)
SACR 595 (CC)
[4] De Klerk v Minister of Police 2019 (12) BCLR 1425 (CC); 2020 (1) SACR 1
(CC); 2021 (4) SA 585 (CC) para 62.
[5] E A and Others v Minister of Police [2019] ZAGPJHC 9; 2019 (7K6) QOD 462
(GSJ) (12 February 2019)
[6] Raduvha v Minister of Safety and Security and Another [2016] ZACC 24
[7] Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA) at para 26
[8] Minister of Safety and Security v Se ymour [2007] 1 All SA 558 (SCA) at
paragraph 12
[9] Van der Nest N.O v Minister of Police [2025] 2 All SA 655 (SCA) at
paragraph 33
[10] E A and Others v Minister of Police supra