Lehubu and Others v Minister of Police (2023/013524) [2025] ZAGPJHC 172 (11 February 2025)

THE

HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

Case 2023-013524

(1) REPORTABLE: / No

(2) OF INTEREST TO OTHER JUDGES: / No

(3) REVISED: Yes ☐

21 February 2025

In the matter between:

MAPHETO

JOHANNES LEHUBU First Applicant

AVASHONI

GRANNY MAFHEGE Second Applicant

MASHUDU

MAFHEGE Third Applicant and

MINISTER

OF POLICE Respondent

Heard on: 20 February 2025

Decided on: 21 February 2025

This judgment has been delivered by uploading it to the CaseLines digital data base of the Gauteng Division of the High Court of South Africa, Johannesburg, and by email to the attorneys of record of the parties. The deemed date and time of the delivery is 10H00 on 21 February 2025.

JUDGMENT

DU

PLESSIS J

[1] The Plaintiffs seek default judgment against the Defendant, the Minister of Police, for damages arising from an unlawful assault, malicious damage to property, and emotional shock caused by members of the South African Police Service ("SAPS") acting in the course and scope of their employment.

[2] The first plaintiff, Mr Lehubu, is an adult male resident of Gauteng who was allegedly assaulted by members of the SAPS at his place of residence. The second plaintiff, Ms Mafhenge, is the spouse of the first plaintiff and claims emotional shock and psychological trauma resulting from witnessing the incident. She also claims on behalf of her two minor children. The third plaintiff, Mr Mafhungu, is the adult son of the first plaintiff and similarly claims damages for emotional shock and psychological trauma.

[3] The plaintiffs allege that on 24 July 2022, SAPS officers forcibly entered their residence in Springs without presenting a valid warrant. During the entry, doors and windows were broken, resulting in significant property damage. They also threw three teargas canisters inside the family home.

[4] The first plaintiff was physically assaulted by SAPS members, causing bodily injuries that required medical treatment. The assault took place in the presence of the Second and Third Plaintiffs and two minor children, leading them to suffer severe emotional and psychological trauma.

[5] A social worker's report confirms that the second and third plaintiffs exhibit symptoms of post-traumatic stress disorder (PTSD), anxiety, and ongoing psychological distress as a direct result of the incident.

[6] The plaintiffs initially sought R5,000,000 but later amended their claim to R1,600,000 (R350 000 for the first plaintiff and R300 000 for the other four plaintiffs, plus R50 000 for the damages to the house) in their heads of argument. Thus, the court must assess the amount to be awarded to the plaintiffs. Courts have discretion in determining general damages, ensuring fairness to both parties.[1]

[7] The SAPS officers broke doors and windows while forcibly entering the plaintiffs' home, causing patrimonial loss. The plaintiffs submitted an assessment report detailing the cost of repairing the damaged property. I am inclined to award the R50 000 as per the particulars of claim.

[8] The first plaintiff's claim is for assault. Section 12(1)(c) of the Constitution guarantees freedom from all forms of violence. In Minister of Safety and Security v Xaba,[2] the court held that a wrongful assault by a police officer constitutes a delict, justifying an award of damages. The question is

how to determine damages. In this case, the first plaintiff was not arrested. Still, in Olgar v Minister of Safety and Security[3] the court warned that

'In modern South Africa a just award for damages for wrongful arrest and detention should express the importance of the constitutional right to individual freedom, and it should properly take into account the facts of the case, the personal circumstances of the victim, and the nature, extent and degree of the affront to his dignity and his sense of personal worth. These considerations should be tempered with restraint and a proper regard to the value of money, to avoid the notion of an extravagant distribution of wealth from what Holmes J called the "horn of plenty", at the expense of the defendant.'

[9] With this in mind, the R350 000 claimed seem excessive, especially when compared to other cases. In Xaba and Another v Minister of Police[4], R100 000 was awarded for unlawful detention and assault spanning one day. In Peterson v Minister of Safety and Security,[5] R 120 000 was awarded for assault where a plaintiff was pepper-sprayed and locked in a cell for 8 hours. In Poswa v Minister of Safety and Security,[6] Beshe J awarded damages in the amount of R170 000 to a plaintiff who developed depression and post-traumatic stress after being assaulted by police officers. In Fisa v Minister of Police[7] R 300 000 was awarded for a plaintiff who was severely assaulted for almost 6 hours. In Woite v Minister of Safety and Security[8] R50 000 was awarded for wrongful arrest and detention of 13 hours, along with assault causing minor injuries. An amount of R50 000

for the assault seems warranted.

[10] The South African law of delict recognises claims for emotional shock where the claimant has suffered psychological harm as a result of a wrongful act. In Bester v Commercial Union,[9] the court held that a psychiatric injury constitutes a "bodily injury" for delictual liability. Similarly, R K v Minister of Basic Education[10] confirmed that emotional shock linked to a detectable psychiatric condition is actionable.

[11] The second and third plaintiffs' claims for emotional shock are thus legally recognised. In Bester v Commercial Union,[11] the Supreme Court of Appeal held that emotional shock from witnessing a traumatic event is compensable in delict.

[12] In Majiet v Santam Limited[12], R35 000 was awarded for a plaintiff's major depressive disorder after witnessing her child being fatally struck by a motor vehicle. In Allie v Road Accident Fund,[13] the plaintiff was awarded R132 000 (current value R274 000), witnessing his wife dying due to a motor vehicle accident. There is a host of other case law dealing with emotional shock claims where family members saw their loved ones dying in motor vehicle accidents, ranging between R180 000 – R300 000.

[13] In this case, the plaintiffs did not witness any deaths. Evidently, the plaintiffs' sense of well-being and safety in their own home was affected by the defendant's wrongful actions. Considering the case law and awards previously made in other courts, an amount of R100 000 per plaintiff for the other four plaintiffs seems justified.

[14] The Constitutional Court has recognised that damages may be awarded where state action violates fundamental rights.[14] However, I agree with the court in R K v Minister of Basic Education[15] that where a person has been compensated for the damages suffered because of psychiatric injury, further damages would only compensate for a breach of a right already granted.[16]

Conclusion

Order

[15] The following order is made:

1. The defendant shall pay an amount of R200 000 for damages in respect of the first plaintiff for unlawful assault, malicious damage to property and emotional shock.

2. The defendant shall pay an amount of R100 000 for damages in respect of the first plaintiff for emotional shock.

3. The defendant shall pay an amount of R300 000 for damages in respect of the first plaintiff for emotional shock.

4. The defendant is ordered to pay interest on the aforementioned amounts at the applicable interest rate payable from date of judgment to date of payment.

5. The defendant is to pay the costs of suit (taxed as scale A) within 30 days from the date of taxation by the taxing master of the court to the date of payment.

WJ du Plessis

Judge of the High Court

For the Applicants:

BM Khumalo instructed by HC Makhubele Inc

For the Respondents:

The State Attorney, Johannesburg

[1] De Jongh v Du Pisanie NO 2005 (5) SA 457 (SCA).

[2] 2003 (2) SA 703 (D).

[3] 2008 JDR J582 (E) at para [16].

[4] [2023] ZANWHC 154.

[5] [2009] ZAECGHC 65.

[6] [2011] ZAECPEHC 41.

[7] [2016] ZAECELLC 1.

[8] [2014] ZAGPJHC 93.

[9] 1973 (1) SA 769 (A).

[10] [2019] ZASCA 192.

[11] 1973 (1) SA 769 (A).

[12] 1997 (4K3) QOD 1 (C).

[13] [2003] 1 All SA 144 (C).

[14] Fose v Minister of Safety and Security 1997 (3) SA 786 (CC)..

[15] [2019] ZASCA 192.

[16] See para 59.