Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (1)

• Author: Okpaluba, C.
• Date: 03 November 2020
• Published date: 03 November 2020
• Pages: 320-347
• Citation: (2020) 33 SACJ 320

Quantication of damages for

unlawful arrest and detention:

South Africa, Namibia and

Eswatini/Swaziland (1)

CHUKS OKPALUBA*

ABSTRACT

The investigation of the quant um of damages which the courts h ave awarded

as compensation for the injuries arising from unlawful arrest and detention

by police ofcers and other law en forcement agents of the State is the m ajor

concern of this series of articles. When viewed from the perspective of the

courts, the issue of quantication of damages is denitely a burdensome

exercise; and to the victim, it is shrouded with uncertainty. It is not easily

ascertainable whether this is the reason why, in spite of there being an

avalanche of case law, yet there appear to be far less academic deli berations

or debate in this volatile asp ect of the law of government liability. Certain ly,

the assessment of damages is one area of adjudication where the trial judge

has discretion to make a value judgment and an obligation to make an

award that is fair, just and appropriate having regard to the circumstances

of the case. It is clear, however, that courts do not pretend to be in a

position to repair, except to the extent that money can do so, the types of

physical, emotional and psychological damages caused in the process of

arrest and detention. Otherwise, how could a trial judge possibly remedy

the tricky issues of personal liberty deprivations; the physical injuries; the

humiliation, tarnished reputation, and the trauma that afict the plaintiff

as a result of the wrongful arrest and detention; or, the economic damage

– loss of income from employment or business; medical expenses incurred

or to be incurred in the future? These problems are accordingly scrutinised

in this series, including the factors the courts take into account in making

the awards; the actual amounts awarded; and the reasons for making the

awards. In carrying out this onerous task, the trial courts are guided by

the principles outlined by the appellate courts. The enormous amount of

materials available in t hese three Southern Africa n jurisdictions investigated

herein, inform the adoption of a three-part serialisation.

1 Introduction

These articles are a clear ma nifestation of the well-known aphorism that

not only are liability issues and quantication of damages two distinct

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

University of the Free St ate.

320

(2020) 33 SACJ 320

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and separate issues1 but that quantication is by far, a more difcult

task than the determination of the liability question. The explanation

for so asserting is not far-fetched. For, in determining liability, a

court concerns itself with the interpretation and application of the

right(s) allegedly breached which are stipulated in the Constitution,2

the Criminal Procedure Act 51 of 1977 of South Africa and Namibia

(CPA)3 or, the Criminal Procedure and Evidence Act 67 of 1938 (CPEA)4

of Eswatini/Swaziland, or indeed, under any other legislation or the

common law. This is quite the opposite in the case of quantication

of damages where there is neither a constitutional nor statutory

enabling source.5 There is hardly any regulatory instrument setting

out the guidelines or regulating how the courts should carry out the

quantication exercise. It then stands to reason that in quantifying the

damages to be awarded a successful plaintiff in any given case, the

court is apparently on its own; it must gure out the factors to take

into account and the amount to award in the circumst ances of the case.

Invariably, judicial value judgment predominates the quantication of

damages such that the amount awarded is solely at the discretion of

the court; this is a common refrain running through the judgments.

1 See per Bennie J, Beals v Saldanha [2003] 3 S.C.R. 416 (SCC) at para [110]. See

also Charles v At torney General [2001] 2 LRC 169 (SCC) and Canaya v Gover nment

of Seychelles (2000) SLR 143 (SCSC) where the courts in Seychelles emphasised

and reiterated the differences in the approaches to the assessment of both the

constitutiona l and delictual damages awards.

2 For instance, the rights of the arrested and detained persons are guaranteed in

s 35(1) and (2) of the 1996 Constitution of South Africa whereas the rights against

arbitrary a rrest or detention are careful ly itemised in art 11 of the 1990 Consti tution

of Namibia.

3 Section 40 of the CPA. See eg Bellochumv Minister of Police (EL669/2018) [2019]

ZAECELLC 29 (29 October 2019).

4 See also CPEA, 1981 (Lesotho).

5 While there is no mention of compensation along with the rights guaranteed in

ss12 or 35(1) and (2) or of any provision in the South African Bill of Rights, the

right to receive compensation where a person has been unlawfully arrested or

detained is entrenched in the home-made but Westminster-type Constitutions of

Lesotho 1993, s 6(6) (replicating s 6(6), 1966 Constitution); Botswana, s 5(4), 1966;

Swaziland, s5(6), 1968 (see now s 16(8), 2005 Constitution); s 5(5), Zimbabwe 1980

(see now s 50(8), 2013 Constitution).Althoughs 25(4) of the Constitution of Nam ibia

1990 makes simila r provisions, it is worded differently hence wider i n its coverage.

It provides that the cour t’s power to award monetary compensation extend s to any

damage suffered by an aggrieved person in consequence of any unlawful denial

or violation of any entrenched right or freedom. Again, while there is no mention

of compensation or damages in the enforcement provisions of s 38(1) of the South

African Bill of Rights, through a generous and purposive interpretation, the courts

have recognised that the award of damages is encapsulated in the “appropriate

relief” clause of that subsection – Fose v Minis ter of Safety and Security 1997 (3) SA

786 (CC).

Quantication of damages for unlawful arrest and detention:

South Africa, Namibia and Eswatini/Swaziland (1) 321

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