---

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 PROVINCIAL DIVISION, MAHIKENG

CASE NO.: 1251/2019

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between:

MOTSOMI ALBANUS RAMOTSHELA                           PLAINTIFF

And

MINISTER OF POLICE                                                   DEFENDANT

JUDGMENT

MASIKE AJ

INTRODUCTION:

[1] This is a claim for unlawful arrest and detention of the plaintiff for a period of five days and four nights from 3 to 7 January 2018 (“Claim A”), loss of income in the amount of R 106 916.00 (“Claim B”) and for an order directing the defendant to repair the motor vehicle to wit Mercedes Benz C200 with registration number J[...], the motor vehicle which belongs to the plaintiff (“Claim “C”).

[2] The trial was heard by this court on 24 July 2024. The plaintiff, Mr. Motsomi Albanus Ramotshele was represented by Advocate Ntsamai (“Mrs. Ntsamai”) an Advocate of the North West Bar on instructions of Molope Attorneys care of Ntsamai Attorneys. At the commencement of the trial, Mrs. Ntsamai informed the court that the plaintiff would no longer be persisting with Claim “B” and Claim “C”, and what remained to be determined was the merits and quantum in the claim for the alleged unlawful arrest and detention.

[3] The matter is defended, and the defendant filed a plea. When the matter was called there was no appearance for the defendant. The court noted that the matter had been on the roll for an extensive time, from the perusal of the court file it appeared the matter had been certified trial ready as far back as 3 August 2021 by Hendricks DJP (as he was known then). The court further on 13 February 2024, per Petersen ADJP postponed the matter to 24 July 2024, for trial on merits and quantum.

[4] When the matter was heard by Petersen ADJP the defendant was represented by Mr. Sekgota from the office of the State Attorney. Mrs. Ntsamai informed the court that she had contacted the office of the of the State Attorney in confirmation of the matter as set down before this court. I am satisfied that the State Attorney is aware thereof that the matter is set down for trial. It is not in the interest of justice for matters to be delayed for no reason. In casu no representative from the Office of the State Attorney saw it fit to attend court and defend the matter. On that basis I made a ruling that the matter would proceed on a default basis.

[5] The plaintiff was called to testify, and his evidence was tendered on both the issue of liability and quantum. As directed by this court Mrs. Ntsamai submitted written heads of judgment.

PLAINTIFF’S CASE:

[6] The plaintiff testified that he is a pensioner, and a farmer aged 70 (seventy) years of age. At the time of his arrest, he was 63 (sixty-three) years of age, just shy of his 64^th birthday. On the day of 3 January 2018, the plaintiff received a phone call from a person who identified himself as Pule. Pule informed the plaintiff that members of the South African Police Service (“SAPS”) had found stolen cattle on the plaintiff’s farm, and he should report to Phokeng Police Station. At the time of the call, the plaintiff was in Soweto.

[7] The plaintiff travelled from Soweto to Phokeng on 3 January 2018 and on his arrival at the Phokeng Police Station he met with a person who identified himself as Pule. The full names and rank of Pule are unknown to the plaintiff. Pule informed the plaintiff that he was under arrest. No warrant of arrest was presented, and the plaintiff was not given an opportunity to make a statement or to make a phone call to his family to let them know that he had been arrested. The plaintiff was held in custody at the Phokeng Police Station cells.

[8] The plaintiff testified that he was not taken to court on Thursday 4 January 2018 and Friday 5 January 2018. On Saturday 6 January 2018 he was still kept in the Police Station cells at Phokeng Police Station, he was released from the Phokeng Police Station cells on Sunday 7 January 2018 by a police officer whose names and ranks are to the plaintiff unknown with no explanation given for the reason of his arrest and subsequent release.

[9] The plaintiff testified as to the conditions of the police cells. The cell was overcrowded, he was the only elderly person in the cell, and he was with young men who did not harm him but he was scared that they would harass him. The plaintiff witnessed the young men in the cell taking the clothes of another young man.

[10] The plaintiff estimated the cell to be 5 x 4 paces large, it had a toilet which was not working, the toilet was blocked with a small basin next to it. He did not take a bath for the whole time of his detention because there was no privacy in the cell. The plaintiff said he slept on the floor which was made of cement with a single blanket. He was given food, but the food was not good. The plaintiff said he was on treatment for high blood pressure, he requested his medication, but his request was refused by employees of the defendant.

[11] At the time of his arrest, the plaintiff was a farmer, he was divorced and had 5 (five) major children. Plaintiff testified that his family did not know about the arrest. He told his children about his arrest after his release. The relationship with his children has changed due to the arrest. Prior to the arrest, they would call him to check up on him, but after the arrest the children do not call him as often as they used to.

[12] The plaintiff’s relationship with other family members remains good despite the family members being aware of the arrest. His relationship with the members of the community is also good despite the community members having knowledge of the arrest. The plaintiff is a member of a church, and the church members became aware of his arrest but the relationship with other church members is still good. The plaintiff does not hold a senior position in the church, and aside from the plaintiff being an elder in in the community, he does not hold a senior or leadership position in the community. After leading the evidence of the plaintiff, Mrs. Ntsamai closed the case of the plaintiff. 

[13] In the pleadings before the court the lawfulness of the arrest was defended. It was pleaded that the arrest of the plaintiff was lawful in terms of Section 40(1)(b) of the Criminal Procedure Act, in that the plaintiff was arrested by a peace officer, the peace officer reasonably suspected that the plaintiff to have committed an offence listed in Schedule 1 of the Criminal Procedure Act 51 of 1977, to wit stock theft. 

ANALYSIS:

[14] Any arrest or detention is prima facie wrongful. It is accordingly not necessary for the plaintiff to allege and prove wrongfulness, the defendant must allege and prove the lawfulness of the arrest or detention. (See: Minister of Law and Order v Hurley and Another 1986 (3) SA 568 (A) at page 587 – 589)

[15] The duty was on the defendant to lead evidence as to the lawfulness of the arrest and detention of the plaintiff. An arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems to be fair and just to require that the person who arrested or caused the arrest of another person should bear the onus of proving that his action was justified in law. (See: Minister of Law and Order v Hurley and Another supra at page 589E – G; Zealand v Minister of Justice and Constitutional Development [2008] ZACC 3; 2008 (2) SACR 1 (CC) paras 24 and 25).

[16] In the matter before this court, there is no evidence to justify the necessity of arresting and detaining the plaintiff. I accordingly find in the absence of an explanation for the arrest and detention by the employees of the defendant, that the arrest and detention of the plaintiff was unlawful.

QUANTUM:

[17] 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).”

[18] In Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A) at page 535G – 536B the then court 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.”

[19] In the matter of 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)

[20] Mrs. Ntsamai has referred me to the writings of Visser and Potgieter’s Law of Damages 2^nd Edition Page 475 on factors that the court should consider when making a determination on the question of a fair and just quantum to be awarded in matters of this nature. Those factors are the following:

(a) “The circumstances under which the deprivation of liberty took place;

(b) The presence or absence of improper motive or malice on the part of the defendant;

(c) The harsh conduct of the defendants;

(d) Duration and nature of the deprivation of liberty;

(e) Status, standing, age and health of the plaintiff;

(f) The extend of publicity given to the deprivation of liberty;

(g) The presence or absence of an apology or satisfactory explanation of the events by the defendants;

(h) Awards of previous comparable cases;

(i) The fact that in addition to physical freedom other personality interests such as honor and good home have been infringed;

(j) The high value of the right to physical liberty;

(k) The effect of inflation;

(l) And the fact that action injuriarum also has punitive function”

[21] Mrs. Ntsamai has further submitted that the employees of the defendant breached the plaintiff’s rights under Section 35(1)(d) of the Constitution of the Republic of South Africa.

[22] Mrs. Ntsamai has referred me to the case of Motladile v Minister of Police (414/2022) [2023] ZASCA 94 (12 June 2023) a matter in which the plaintiff was awarded R 200 000-00 for unlawful arrest and detention for a period of four days. Mrs. Ntsamai argues that: “Based on the principle of stare decisis this case is a useful guide to be followed, although the circumstances differ as well as the period of unlawful detention.” I agree with Mrs. Ntsamai that Motladile v Minister of Police supra on the issue of the award to be considered, is a guide, a very useful guide at that. Mrs. Ntsamai overlooks a trite principle of the law that past awards are a useful guide to what other courts have considered to be appropriate, but they have no higher value than being a useful guide. (See: Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) at Paragraph 17). I understand the Seymour judgment to mean that past awards are not binding authority in that each matter is to be determined on it own individual facts.

[23] Mrs. Ntsamai has submitted that an award of R 300 000-00 (three hundred thousand rands), being in respect of unlawful arrest and detention would be just and fair.

[24] In arriving at what I consider to be an appropriate award, I have considered the heads of argument submitted by Mrs. Ntsamai, the authorities referred to therein, past awards by the court and the astute observations of Makaula AJA in Diljan v Minister of Police (Case no 746/2021) [2022] ZASCA 103 (24 June 2022) at paragraph 18, “the acceptable method of assessing damages includes the evaluation of the plaintiff’s personal circumstances; the manner of the arrest; the duration of the detention; the degree of humiliation which encompasses the aggrieved party’s reputation and standing in the community; deprivation of liberty; and other relevant factors peculiar to the case under consideration.” All of the factors referred to by Makaula AJA have been recorded herein above.

[25] For the sake of completeness, I summarize the factors that I took into account in arriving at a just and fair quantum for the unlawful arrest and detention of the plaintiff

(a) I have noted that the plaintiff cooperated with Pule, since he travelled from Soweto to Phokeng SAPS out of his own volition;

(b) The employees of the defendant did not explain the reason for the arrest of the plaintiff and his detention;

(c) The plaintiff did not have an opportunity to address the allegations, if any, against him;

(d) The conditions of the cells from the description by the plaintiff were inhumane and unhygienic;

(e) The employees of the defendant failed to do the bare minimum, that is provide the plaintiff with his medication;

(f) The Constitutional rights of the plaintiff in terms of Section 12(1)(a) and Section 35(1)(d) were willfully trampled by the employees of the defendant, the very people who were tasked with defending the Constitutional Rights of the plaintiff;

(g) The Constitution jealously guards the freedom of the freedom of the individual and this court will be remiss in not making an award which is commensurate with the damages suffered by the plaintiff;

(h) A balance has to be struck between granting the plaintiff much needed solatum and is in commensuration with the iniuria suffered by the plaintiff.

[26] Having regard to the abovementioned factors, I consider an amount of R 175 000-00 to be a just and fair amount of compensation to the plaintiff for his unlawful arrest and detention suffered at the hand of the employees of the defendant

INTEREST:

[27] Mrs. Ntsamai submitted that the interest on the amount awarded is to run from date of service of summons on the defendant, same being 26 April 2019.

[28] The plaintiff’s claim against the defendant is an unliquidated claim. A court may make such an order as appears just in respect of the payment of interest on an unliquidated debt, the rate at which interest shall accrue, and the date from which interest shall run. (See: Drake Flemmar and Orsmond Inc and another v Gajjar NO 2018 (3) SA 353 (SCA) at paragraph 67.

[29] I have taken note that the plaintiff initially claimed R 2 500 000-00 (two million five hundred thousand rands) in respect of Claim “A” when the summons was issued. When the heads of argument were prepared by Mrs. Ntsamai, the amount claimed was dramatically reduced to R 300 000-00 (three hundred thousand rands), no explanation has been advanced in the heads of argument of the plaintiff for the reduction in the claimed amount.

[30] I deem it pertinent for me to quote what the court stated in Diljian vs Minister of Police supra at paragraph 20: “A word has to be said about the progressively exorbitant amounts that are claimed by litigants lately in comparable cases and sometimes awarded lavishly by our courts. Legal practitioners should exercise caution not to lend credence to the incredible practice of claiming unsubstantiated and excessive amounts in the particulars of claim. Amounts in monetary claims in the particulars of claim should not be ‘thumb-sucked’ without due regard to the facts and circumstances of a particular case. Practitioners ought to know the reasonable measure of previous awards, which serve as a barometer in quantifying their clients’ claims even at the stage of the issue of summons. They are aware, or ought to be, of what can reasonably be claimed based on the principles enunciated above.”

[31] In the event that I align myself with the submission made by Mrs. Ntsamai, interest in the amount of R 300 000-00 to run from 26 April 2019. However, the amount of R 300 000-00 was demanded for the first time in the heads or argument dated 29 July 2024. I am of the view it will not be just or fair to order the interest on the amount to be awarded to run from the date of issue of the summons, but fairness would dictate that the interest should commence from the date of judgment. This is on the basis that the amount of R 300 000-00 was claimed for the first time in the heads of argument dated 29 July 2024 and clearly the initial claimed amount of R 2 500 000-00 was “thumb – sucked” by the attorneys of the plaintiff without due regard to the facts and circumstances of the plaintiff’s case.

ORDER:

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

(i) The arrest and detention of the plaintiff for the period of 3 to 7 January 2018 at Phokeng SAPS by employees of the defendant is declared unlawful;

(ii) The defendant is to pay the plaintiff an amount of R 175 000-00;

(iii) Interest on the amount referred to in (ii) herein above is to be calculated at the prescribed interest rate from date of judgment to date of final payment;

(iv) Defendant is to pay the costs of suit on a party and party Scale, Scale “A”.

T MASIKE

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

APPEARANCES
Date of Hearing:	24 July 2024
Date of Judgment:	19 August 2024
For the Plaintiff:	Adv O. Ntsamai
Instructed by:	Molope Attorneys C/O Ntsamai Attorneys
For the Defendant:	No appearance
Instructed by:	State Attorney Mahikeng

---