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Latest amended version: 18 March 2025

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

CASE NO.: 1436/2021

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

 

 

In the matter between:

 

HENDRICK SONYANA LEKALAKALA                         PLAINTIFF

 

And

 

MINISTER OF POLICE                                                   1^st DEFENDANT

 

NORTH WEST PROVINCIAL

COMMISSIONER (SAPS)                                               2^nd DEFENDANT   

 

CIVIL TRIAL

 

CORAM: MASIKE AJ        

ORDER

 

(i)           The first defendant is ordered to pay the plaintiff an amount of R 120 000-00 (One Hundred and Twenty Thousand Rands) in respect of unlawful arrest and detention of the plaintiff from 23 August 2019 to 26 August 2019;

 

(ii)          The first defendant is ordered to pay interest on the amount referred to in paragraph (i) above at the prescribed rate, same to be calculated from the date of service of the summons on the first defendant to date of final payment

 

(iii)        The first defendant is ordered to pay the costs of suit on a party and party scale, scale “B”.

JUDGMENT

 

MASIKE AJ

 

INTRODUCTION

  

[1]        On 14 August 2024, Madam Justice Reid made an order in the following terms:

 

“1. THAT:       The Defendant hereby accepts 100% liability on the Merits.

 

2. THAT:        The matter be and is hereby postponed to 29^th JANUARY 2025 for trial on Quantum.

 

3. THAT:        Costs in the cause.” 

 

[2]        The trial on quantum was heard by this Court on 29 January 2025. After hearing the evidence of the plaintiff, the Court made an order in the following terms:

 

“1. THAT:       The matter is postponed to 11^th FEBRUARY 2025.

 

2. THAT:        The Plaintiff to file heads of argument on or before the 03^rd FEBRUARY 2025.

 

3. THAT:        The Defendant to file heads of argument on or before 07^th FEBRUARY 2025.

 

4. THAT:        Costs in the cause.”

 

[3]        Heads of argument for the plaintiff were filed timeously on 2 February 2025. Heads of argument for the defendant were filed timeously on 7 February 2025.  

 

EVIDENCE OF THE PLAINTIFF

 

[4]        The plaintiff, Mr. Hendrick Sonyana Lekalakala, a major male person residing at house number 3[...], Moragogathaba Section Kraalhoek Moruleng, was arrested by members of the South African Police Services (SAPS) whose names and ranks are to the plaintiff unknown on 23 August 2019 between the hours 17H00 and 18H00.

 

[5]        The arrest was affected in the presence of his wife and son. The plaintiff was further manhandled by the members of SAPS in the presence of his wife, son and neighbors. No explanation was given for the arrest of the plaintiff.

 

[6]        After the arrest of the plaintiff, the plaintiff was taken to Mogwase Police Station and held in in cell 7. There were 6 inmates in the cell. The inmates told the plaintiff what they were detained for. The inmates told the plaintiff that they were dangerous people. The plaintiff could not sleep at night. He was held in custody from Friday, 23 August 2019 until Monday 26 August 2019 at around 12h00.

 

[7]        The plaintiff testified that for the duration of his detention, he washed with cold water, with a facial cloth he found in the Mogwase Police Station Cells. He slept on a small thin sponge with a small blanket which had a terrible smell.

 

[8]        There was food but because of the condition that the plaintiff found himself in, he could not eat. He was heartbroken because he could not see his wife. During the period of incarceration, the plaintiff did not receive any visits from family or friends.

 

[9]        The plaintiff needed medication for heartburn. The plaintiff testified that he drinks one tablet a day in the morning for heartburn. The tablets were not there. The plaintiff testified that when the members of SAPS were affecting the arrest, he informed the members of SAPS that he was on medication and requested the members of SAPS to allow him to take his medication and they refused.   

 

[10]      On 26 August 2019, at around 12h00, the plaintiff was taken to court.  The plaintiff was released without appearing in court.

 

[11]      The plaintiff testified that his reputation has been ruined, even when he goes to weddings or funerals, he feels less valuable. No members of SAPS have apologised for the unlawful arrest.  

 

[12]      Under cross examination, the plaintiff testified that he was dragged by his belt from his house to the police van. His neighbors were watching as he was being arrested. From the date of his arrest until he was released from custody, he did not know the reason for his arrest.

 

[13]      The plaintiff only came to know of the reason for his arrest after his release. He was arrested for attempted murder, and he was accused of having a fire–arm. The plaintiff vehemently denied that he was involved in an attempted murder matter or that he had possessed a fire–arm.

 

[14]      The plaintiff testified under cross examination that for the period of his incarceration, he slept during the day. He could not sleep at night because he was scared of the inmates in the cell. The plaintiff insisted that he could not eat the food that was offered to him in the Police Cells because of the pressure of the situation he found himself in. The plaintiff further testified that the medication for his heartburn was prescribed by a doctor and he received a tablet supply for a period of 3 months.

 

[15]      The plaintiff closed his case without calling other witnesses and the defendant closed its case without calling any witnesses.

 

THE LAW

 

[16]      In the matter of Minister of Safety and Security v Tyulu 2009 (5) SA (SCA) at paragraph 26, the Supreme Court of Appeal held as follows:

 

“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 concede that it is impossible to determine an award of damages for this kind of injuria with any kind of mathematical accuracy. Although it is always helpful to have regard to awards made in previous cases to serve as a guide, such an approach if slavishly followed can prove to be treacherous. The correct approach is to have regard to all the facts of the particular case and to determine the quantum of damages on such facts (Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) 325 para 17; Rudolph & others v Minister of Safety and Security & others (380/2008)  [2009] ZASCA 39 (31 March 2009) (paras 26-29).”

 

[17]      In Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A) at page 535G – 536B the then appellate division held as follows:

 

“It should be emphasised, however, that this process of comparison does not take the form of a meticulous examination of awards made in other cases in order to fix the amount of compensation; nor should the process be allowed so to dominate the enquiry as to become a fetter upon the Court's general discretion in such matters. Comparable cases, when available, should rather be used to afford some guidance, in a general way, towards assisting the Court in arriving at an award which is not substantially out of general accord with previous awards in broadly similar cases, regard being had to all the factors which are considered to be relevant in the assessment of general damages. At the same time it may be permissible, in an appropriate case, to test any assessment arrived at upon this basis by reference to the general pattern of previous awards in cases where the injuries and their sequelae may have been either more serious or less than those in the case under consideration.” (my underlining)

 

[18]      In Pitt v Economic Insurance Co Ltd 1957 (3) SA 284 (N) at page 287E the court held as follows: “…the Court has to do the best it can with the material available, even if, in the result, its award might be described as an informed guess. I have only to add that the Court must take care to see that its award is fair to both sides - it must give just compensation to the plaintiff, but must not pour our largesse from the horn of plenty at the defendant's expense.”  (own underlining)

 

[19]      In Motladile v Minister of Police (414/2022) [2023] ZASCA 94 (12 June 2023) at paragraph 17 the Supreme Court of Appeal said the following:

 

“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. 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.”

           

[20]      In Thandani v Minister of Law and Order 1991 (1) SA 702 (E) at page 707A – B, Van Rensburg J said the following:

 

 “In considering quantum sight must not be lost of the fact that the liberty of the individual is one of the fundamental rights of a man in a free society which should be jealously guarded at all times and there is a duty on our Courts to preserve this right against infringement. Unlawful arrest and detention constitutes a serious inroad into the freedom and the rights of an individual.”  

 

ANALYSIS

 

[21]      The evidence of the plaintiff is uncontested as it relates to how the members of SAPS affected the arrest of the plaintiff on 23 August 2019, the refusal by members of SAPS to allow the plaintiff to collect his medication, the state of the cell in which the plaintiff was detained and the inability of the plaintiff to sleep and eat during his period of detention and the date on which the plaintiff was released.

 

[22]      The right to liberty is a precious right, consequently a high premium is placed on the right to freedom. The supreme law of our country enshrines this and failsafe’s the right of everyone to freedom and security of person and the right not to be deprived of freedom arbitrarily or without just cause and not to be treated in a cruel, inhuman or degrading way as provided in s 12(1)(a) of the Constitution. (See: Minister of Home Affairs v Rahim 2016 (3) SA 218 (CC))

 

[23]      The plaintiff under cross examination on how the arrest was affected on him was undaunted. The plaintiff came across to the Court as a reliable witness, he could have exaggerated facts surrounding his arrest but did not do so. He maintained from his evidence in chief and under cross examination that he was manhandled by members of SAPS in the presence of his wife, son and his neighbors.

 

[24]      The plaintiff testified regarding the unhygienic blanket he used to sleep. That he washed with cold water and used a washcloth that he found in the cell to wash himself. The picture drawn by the plaintiff of what he went through in the police cell is terrifying at best and horrifying at worst.

 

[25]      To be taken in the presence of your loved ones with no explanation as to why you are being taken and for how long you will be away from your loved ones reminds this Court of what Majiedt described as “the utterly reprehensible manner in which persons were deprived of their liberty at will during the abominable apartheid era.” (See: Senwedi v The State [2021] ZACC 12 at paragraph 16).

 

[26]      I have considered the age of the plaintiff at the time of his arrest, his personal and social circumstances, the circumstances of his arrest, the duration of the detention of the plaintiff, the fact that no explanation was tendered to the plaintiff for the reason for his arrest and no apology has been tendered by SAPS for the unlawful arrest and detention. The fact that the plaintiff was released from custody without appearing in court. I have considered comparable case law and past awards as referred to me by counsel for the plaintiff and counsel for the first defendant.

 

[27]      I am alive to the fact that previous awards are a useful guide but they are not binding on me. Each case must be treated according to its own merits.

 

[28]      Counsel for the plaintiff has urged me to award an amount of R 220 000-00. Counsel for the defendant has urged me to make an award in the amount of R 80 000-00. The reasoning for R80 000-00 by counsel for the first defendant is because of the short duration of the detention, 2 days or 66 hours, that the plaintiff was never tortured and the conditions of the detention or police cell not being inhuman.

 

[29]      With respect I disagree with the assessment of counsel for the first defendant that the police cell was not inhuman. To sleep with a smelly blanket on a thin sponge and to wash with cold water because you have no other choice is in my view inhuman. 

 

[30]   I am of the view that a fair and appropriate award for damages for the plaintiff’s unlawful arrest and detention is an amount of R 120 000-00.   

 

COSTS

                  

[31]      Counsel for the first defendant has urged me to make a cost order on a magistrate’s court scale, because the plaintiff when instituting action against the first defendant, claimed R 500 000-00 for damages and now is seeking a reduced amount of R 220 000-00. Counsel for the first defendant further submitted that “This then brings the question of the plaintiff’s justification in approaching the High Court as opposed to the Magistrate’s Court. There is clearly no justification as to why the plaintiff approached the High Court in the first place.”

 

[32]      I once more with respect, disagree with the submission by counsel for the first defendant. In De Klerk v Minister of Police [2018] ZASCA 45 at paragraph 18 the Supreme Court of Appeal said the following regarding costs: “although the quantum awarded R30 000-00 is far below the jurisdiction of the high court, the appellant was justified in approaching the high court because the matter concerned the unlawful deprivation of liberty.”

 

[33]      The plaintiff was justified in bringing this matter before the High Court. The importance of freedom of the individual and not to be arbitrarily incarcerated justified the bringing of the action before this Court.

 

[34]      In arriving at an appropriate award as to costs, I have considered that the matter was not complex and it is of importance to the plaintiff.

 

[35]      Resultantly, the following order is made: -

 

ORDER:

 

(i)            The first defendant is ordered to pay the plaintiff an amount of R 120 000-00 (One Hundred and Twenty Thousand Rands) in respect of unlawful arrest and detention of the plaintiff from 23 August 2019 to 26 August 2019;

 

(ii)          The first defendant is ordered to pay interest on the amount referred to in paragraph (i) above at the prescribed rate, same to be calculated from the date of service of the summons on the first defendant to date of final payment;

 

(iii)         The first defendant is ordered to pay the costs of suit on a party and party scale, scale “B”.

 

 

T MASIKE

ACTING JUDGE OF THE HIGH COURT SOUTH AFRICA,

NORTH WEST DIVISION, MAHIKENG

 

 

APPEARANCES

 

DATE FOR HEARING                    :           29 JANUARY 2025

                                                            &         11 FEBRUARY 2025

 DATE OF JUDGMENT                 :           13 MARCH 2025

 

FOR PLAINTIFF                             :           ADV G.K SELEKA     

INSTRUCTED BY               :                    TLHAKU ATTORNEYS

C/O MOLEFAKGOTLA ATTORNEYS

          OFFICE 3 SHIPPARD STREET

           MAHIKENG

Email Address                                :          gofaonakabo@gmail.com             

                                                           

FOR FIRST AND

SECOND DEFENDANT                :           ADV. T MPAHLWA   

INSTRUCTED BY                           :           THE OFFICE OF THE STATE     

                                                                  ATTORNEY

          EAST GALLERY, FIRST FLOOR

          MEGA CITY COMPLEX

          CNR SEKAME ROAD & DR JAMES            

          MOROKA DRIVE 

Email Address                                :           MNkabini@justice.gov.za  

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