Lesomo v Minister of Police

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Petersen ADJP
• Judgment Date: 12 September 2023
• Citation: 2023 JDR 3430 (NWM)
• Hearing Date: 07 August 2023
• Docket Number: 436/2017
• Court: North West High Court, Mafikeng

Petersen ADJP:

Introduction

[1]

This action comes before this Court to adjudicate the issue of quantum, following an order by Nonyane AJ on 29 April 2021, finding in favour of the plaintiff on the issue of merits.

[2]

The only evidence presented in the trial on quantum was from the plaintiff. The plaintiff claims damages in the particulars of claim, in the amount of R60 000.00 for his unlawful arrest and detention which extended from 2 December 2016 to 5 December 2016, a period of three (3) days.

The evidence of the plaintiff

[3]

The personal circumstances of the plaintiff adduced by way of oral evidence, is that he is presently thirty-seven (37) years old. At the time of his arrest on 2 December 2016 he was thirty (30) years old. He was, at the time of his arrest, employed at Thaba Thula Game Farm (although no proof of such employment was adduced). This employment was allegedly lost as a result of his arrest. He is presently a farmer selling pigs. The plaintiff resides in Vrede in the North West

2023 JDR 3430 p3

Petersen ADJP

Province. Whilst the plaintiff is not married he has six (6) children aged fifteen (15), thirteen (13), twelve (12), nine (9), seven (7) and four (4) years old respectively. He attends the Salvation Apostolic Church.

[4]

A message was left by one Mr Mabule at the plaintiff’s home for the plaintiff to contact him regarding a criminal charge which had been laid against him at Madikwe Police Station. On Friday, 2 December 2016, the plaintiff attended at Madikwe Police Station to report to Mr Mabule. He was informed by a colleague of Mr Mabule, Mr Nawe, that he was at Mogwase Magistrates Court. Mr Nawe made telephonic contact with Mr Mabule, who instructed him to arrest and detain the plaintiff, in his absence. Mr Nawe duly arrested the plaintiff and detained him at Madikwe Police Station. The plaintiff did not inform his family about his arrest.

[5]

The holding cell in which the plaintiff was detained was estimated on demonstration by the plaintiff, to be 4 x 4m. According to the plaintiff he shared the cell with five (5) other detainees who allegedly threatened him, without elaborating on the nature of the threats. There was no water available in the holding cell and he could not bath himself as a result. There were no beds or mattresses on which to sleep and the detainees had to sleep on the floor with blankets. The food provided was not up to standard, except for the meal which was provided on the Sunday (4 December 2016).

2023 JDR 3430 p4

Petersen ADJP

[6]

According to the plaintiff he was taken to court on Monday (5 December 2016) where he was released from detention, without appearing in court.

The approach to assessment of the plaintiff’s damages

[7]

The assessment of damages in actions for unlawful arrest and detention predicated on deprivation of liberty is a matter left to the discretion of the Court which must be exercised judicially, having regard to the peculiar circumstances of the matter.

[8]

In a recent judgment of the Supreme Court of Appeal, Motladile v Minister of Police [1] , Kathree-Setiloane AJA (Mbatha and Gorven JJA and Nhlangulela and Mali AJJA concurring), with reference to the judgment of Dikoko v Mokhatla [2] , and the locus classicus, Minister of Safety and Security v Tyulu [3] of the Supreme Court of Appeal, reiterated the approach to be adopted in the assessment of damages:

“[17]

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.

2023 JDR 3430 p5

Petersen ADJP

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 constitutional rights; and (j) the contributory action or inaction of the plaintiff.

[18]

It is as well to remember what this Court said in Tyulu v Minister of Police:

‘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 the 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. I readily...