Motladile v Minister of Police

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mbatha JA, Gorven JA, Nhlangulela AJA, Kathree-Setiloane AJA and Mali AJA
• Judgment Date: 12 June 2023
• Citation: 2023 (2) SACR 274 (SCA)
• Hearing Date: 05 May 2023
• Counsel: AB Rossouw SC (with JHP Hattingh) for the appellant. ME Mmolawa for the respondent.
• Docket Number: 414/22 [2023] ZASCA 94
• Court: Supreme Court of Appeal

Kathree-Setiloane AJA (Mbatha JA, Gorven JA, Nhlangulela AJA and Mali AJA concurring):

[1] This appeal concerns the question of whether damages in the amount of R60 000 awarded by the North West Division of the High Court, Mahikeng, per Mahlangu AJ (the High Court), to the appellant, arising from his unlawful arrest and detention, are fair and reasonable having regard to the circumstances of the case.

Background

[2] On 23 December 2014 Mr DM Motladile (the appellant), who was, at the time, in the business of transporting passengers, was requested by

Kathree-Setiloane AJA (Mbatha JA, Gorven JA, Nhlangulela AJA and Mali AJA concurring)

a man whom he did not know to transport him to a farm to purchase cattle, which he did. The man purchased the cattle, but unbeknown to the appellant the man had apparently defrauded the seller of the cattle. On reporting the incident to the police, the seller approached the appellant for his contact details, as he considered him to be a potential witness in his criminal case against the man who defrauded him.

[3] On 24 December 2014 the appellant travelled to Gaborone (Botswana) to attend the wedding arrangements of his sister-in-law. The wedding was to take place two days later, on 26 December 2014. On the same day W/O Ngkodi (the investigating officer), from the Mahikeng Police Station (the police station), visited the appellant's home. On being advised by his wife, Mrs Motladile, that the appellant was in Gaborone, the investigating officer provided her with his telephone number and asked that the appellant call him on his return. On his return from Gaborone that evening, the appellant called the investigating officer and arranged to meet him the next morning (Christmas Day) at the police station.

[4] On Christmas morning the appellant travelled to the police station where he expected to be of assistance in the investigation. But instead, on his arrival at the police station at 08h30, the investigating officer promptly arrested and detained the appellant for the offence of theft under false pretences. The appellant attempted to explain his version of events to the investigating officer, but it was to no avail. The investigating officer advised the appellant that he would not be released until he had pointed out the man who allegedly defrauded the complainant. The appellant was unable to do this, as he did not know the man.

[5] The appellant managed to inform his wife and brother of his arrest and detention. They attempted to visit the appellant in the police cells, but were not allowed to see him or communicate with him for the duration of his detention. The appellant's brother instructed a lawyer, at his own expense, to apply to court for the appellant's release on bail. The bail application could not be brought as the investigating officer did not permit the appellant to consult with the lawyer.

[6] The appellant spent the following four days (and nights) in detention in the police cells. On the morning of 29 December 2014 the appellant was taken to the magistrates' court, where he was detained in the holding cells for the rest of the day. The appellant did not appear in court, as the prosecutor refused to enrol the case. He, however, remained in detention in the holding cells until 17h45 that evening, when he was transported back to the police station. The appellant was released from detention at around 18h00 that evening without receiving an explanation. As a result of his detention, the appellant had remained in custody for five days and four nights.

[7] According to the appellant's unchallenged testimony, during the period of his detention he shared a filthy cell with five other inmates, who

Kathree-Setiloane AJA (Mbatha JA, Gorven JA, Nhlangulela AJA and Mali AJA concurring)

assaulted him and stole his food. He did not report this to the police, as he feared further assaults. He was severely traumatised by his arrest and detention in the police cells.

[8] As a consequence of his incarceration, the appellant and his wife were unable to attend his sister-in-law's wedding in Gaborone. As elders, the appellant and his wife had a particular standing at the wedding. His failure to attend the wedding due to his arrest and detention was a source of great embarrassment to him and his family. It was also traumatic for him not to spend Christmas with his wife and children. He broke down and cried while in detention and was unable to eat or sleep. The appellant's wife and children were also traumatised by the appellant's arrest and subsequent detention.

[9] The appellant was a traditional healer who enjoyed the respect of his community. Once his arrest and detention became known to his community, he lost their respect. The appellant felt 'undermined and degraded' by his arrest and detention, and this has affected him psychologically.

[10] As a result of his unlawful arrest and detention, the appellant instituted an action against the Minister of Police (the respondent), in June 2016, for damages in the amount of R250 000. On 26 November 2020 the High Court, after making an order in terms of rule 33(4) of the Uniform Rules of Court separating the determination of the merits from the quantum, made an order that the respondent is liable for the appellant's proven or agreed damages arising from his unlawful arrest and detention. It postponed the determination of the quantum of damages to 5 May 2021.

[11] The appellant and his wife testified at the trial in support of his case on the issue of quantum. The respondent elected to lead no evidence at the trial. The High Court made an order awarding the appellant damages in the amount of R60 000 plus costs on the magistrates' court scale. It reasoned as...