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

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 a rising from unlaw ful arrest and dete ntion

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

concern of this series o f articles. When viewed from t he perspective of the

courts, the issue of qu antication of damage s is denitely a burdensome

exercise; and to the victim, it i s shrouded with uncerta inty. It is not easily

ascertainable whet her this is the reason why, in spite of there bei ng 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 damage s is one area of adjudication where the tr ial judge

has discretion to make a value judg ment and an obligation to make an

award that is fair, just and appropriate havi ng regard to the circumst ances

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 c an do so, the types of

physical, emotional and psychological da mages caused in the process of

arrest and detention. Ot herwise, how could a tria l judge possibly remedy

the tricky issues of p ersonal libert y deprivations; the physical injur ies; the

humiliation, ta rnished reputation, and the t rauma that afic t the plaintiff

as a result of the wrongfu l arrest and detention; or, the economic da mage

– loss of income from employment or business; medic al expenses incur red

or to be incurred in t he future? These problem s are accordingly scrut inised

in this series, i ncluding the factors the cour ts take into account in maki ng

the awards; the actual a mounts awarded; and the reason s for making the

awards. In carr ying out this onerous ta sk, the trial cour ts are guided by

the principles outlined by t he appellate courts. The enor mous amount of

materials available in t hese three Southern Africa n jurisdictions investigated

herein, inform the adopt ion of a three-par t serialisation.

1 Introduction

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

not only are liability issues a nd quantication of damages two dis tinct

* LLB, LLM (Lo ndon), 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 determ ination of the liability question. T he explanation

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

court concerns itself with t he interpretation and application of the

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

the Crimina l Procedure Act 51 of 1977 of South Africa and Namibia

(CPA )3 or, the Criminal P rocedure 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cat ion

of damages where there is neither a constitutiona l nor statutory

enabling source.5 There is hardly a ny regulatory instru ment setting

out the guidelines or regulating how the cour ts should carry out the

quantication exercise. It then stands to reason t hat in quantifyi ng the

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

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

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 com mon refrain runn ing through the judgments.

1 See per Bennie J, Beals v Saldanha [20 03] 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 (200 0) SLR 143 (SCSC) where the courts i n Seychelles emphasised

and reiterated the di fferences in the approache s to the assessment of bot h the

constitutiona l and delictual damages awards.

2 For instance, the rights of the ar rested and detaine d persons are gua ranteed in

s 35(1) and (2) of the 1996 Constitut ion of South Afr ica whereas the rights a gainst

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 Bellochum v Minister of Police (EL669/2018) [2019]

ZAECEL LC 29 (29 October 2019).

4 See also CPEA, 1981 (Lesotho).

5 While there is no mention of compensat ion along with the right s guaranteed i n

ss12 or 35(1) and (2) or of any provision in the South Af rican Bill of R ights, the

right to receive compensat ion where a person has been u nlawfully a rrested or

detained is entr enched in the home-mad e but Westminster-t ype Constit utions of

Lesotho 1993, s 6(6) (replicating s 6(6), 1966 Constit ution); 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). Although s 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 a n aggrieved person i n consequence of any unlaw ful denial

or violation of any entrenched r ight or freedom. Agai n, while there is no ment ion

of compensation or dam ages in the enforcement pr ovisions of s 38(1) of the South

African Bi ll of Rights, th rough a generous and pur posive interpretat ion, the courts

have recognised that t he award of damages is enc apsulated in the “appropri ate

relief” clause of t hat 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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