Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (3)

• Pages: 169-190
• Date: 17 November 2021
• Published date: 17 November 2021
• DOI: https://doi.org/10.47348/SACJ/v34/i2a1
• Author: Okpaluba, C.
• Citation: (2021) 34 SACJ 169

Quantication of damages for

unlawful arrest and detention:

South Africa, Namibia and

Eswatini/Swaziland (3)

CHUKS OKPALUBA*

Having concentrated in the last two parts on the South African jurisprudence

on quantication of damages for unlawful arrest and detention wherein a

wealth of decided cases were encountered dealing with both the liability

question and the quantication exercise, it is the preserve of this third part

to discuss the developments in Namibia and Eswatini (Swaziland). Among

the cases that stand out for discussion in the Namibian jurisdiction are:

Gabriel v Minister of Safety and Security 2010 (2) NR 648 (HC); Iyambo v

Minister of Safety and Security 2013 (2) NR 562 (HC); Sheefeni v Council

of the Municipality of Windhoek 2015 (4) NR 1170 (HC) and Lazarus v

Government of the Republic of Namibia 2018 (1) NR 38 (HC). Similarly, the

most important cases from the Eswatini jurisdiction include Mfanafuthi

Mabuza v Commissioner of Police (39/06) [2006] SZSC 25 (16 November

2006), which concerned detention classied in the Swazi criminal law as a

‘non-bailable offence’. The other two are Zulu v Government of Swaziland

(656/2004) [2016] SZHC 99 (24 June 2016) and Myeni v COP (3064/2007)

[2017] SZHC 259 (14 December 2017) where extensive deliberations on

quantication and awards were made on different heads of damage.

6 Recent Namibian awards

Quite early in the life of the constit utional democracy in Namibia i n

1990, which made a break from the apartheid system of government

to a constitutional democracy, the courts i n the new republic had

emphasised the right to personal liber ty, human dignity and fair

trial as the cornerstone of the democ ratic society1 and entrenched

in the Constit ution.2 However, it was pointed out in Hipandulwa v

* LLB, LLM (Lo ndon), PhD (West Indies), Research Fellow, Centre for Human Rights,

University of the Free St ate.

1 See those earlier judgments of Mo hamed AJ and later Chief Jus tice of Namibia

discussed by C Okpa luba in ‘Constitut ionality of legi slation relating to the exerci se

of judicial power: the Na mibian experience i n comparative perspe ctive (part 1)’

(2002) 2 TSAR 308–332 esp. at par a [1] fn 3.

2 See arts 7, 8 and 12 of the Constitution of Na mibia 1990.

https://doi.org/10.47348/SACJ/v34/i2a1

169

(2021) 34 SACJ 169

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Kamupunya3 that the constitutiona l guarantee of the liber ty of the

individual does not mean that the qua ntum of damages in the event

of a breach should increase. While the assessment of qu antum is

often difcult when clai ms are made under separate headings, such

as where a chain of events consisting of several barbar ic acts had

taken place; it is impossible to separate and identify the plainti ff’s

degree of humiliation or sufferi ng for each act. In addition, the

seriousness or otherwise of t he nature of the injury sus tained,4 as well

as previous awards and the peculiar fact s or circumstances of each

case must be taken into account.5 The inference one draws from the

cases is that courts a re always guided by the general principle that a

wrongdoer cannot escape liability b ecause calculation of quantum is

not necessarily accurate. Meanwhile, the Supreme Cour t of Namibia

had not only made awards, but had ensured that the awards are not

unnecessari ly excessive.6

It must be noted in these instances th at it is only the conduct of the

arresting ofcer, the investigating ofcer and the prosecutor t hat could

attract state liabilit y, bearing in mind that at common law, judicial

ofcers are not servants of the st ate, and so there can be no vicarious

liability of the state for judicial conduct in adjudication.7 Thus, in South

Africa, an appellant’s claim agai nst the magistrate for negligently

cancelling his release on warni ng failed as a matter of legal policy

on account of the judicial ofcer’s immunity f rom liability, personally

or vicariously. This is notwithstand ing the fact that the appellant had

alleged that he was thereby deprived of his liber ty under s12 of the

1996 Constitution of South Afr ica. In a similar vein, the Supreme

Court of Namibia has held that the ‘essence of the common law is

that delictual liabil ity for damages by a judicial ofcer require s not

only wrongful conduct causing damages, but a wrongf ul act or acts

done mala de and/or fraudulently by such judicial ofcer’.8 Miller AJ

recently held for the majority of the Full Bench of the Mai n Division

of the High Court of Namibia i n Visagie v Gov ernment of the Republic

of Namibia,9 that the law is well settled as it held individua l judicial

ofcers delictually li able for damage suffered in the exercise of their

judicial function. That presupposes t hat the plaintiff establi shed the

3 1993 NR 254 (HC).

4 Engelbrecht v Minister of Prison s and Correctional Serv ices 2000 NR 230 (HC).

5 Getachew v Governmen t of the Republic of Namibia 2006 (2) NR 720 (HC).

6 Minister of Basic Education, S port and Culture v Viv ier NO 2012 (2) NR 613 (SC)

atpara [41].

7 Cf Maharaj v Attorne y General of Trinidad an d Tobago [1977] 1 All ER 411 (PC),

aleading Commonwealt h authority on thi s subject.

8 Visage v Government of Namibia 2 017 (2) NR 488 (HC).

9 Visagie supra (n8) at paras [29]–[30 ].

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