Maetso v Minister of Police of the Republic of South Africa and Another (Leave to Appeal) (3115/2023) [2025] ZANWHC 121 (22 July 2025)

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH WEST DIVISION, MAHIKENG)

Case No: 3115/2023

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

MOSHA MOSES MAETSO Applicant / Plaintiff and THE MINISTER OF POLICE OF THE REPUBLIC OF SOUTH AFRICA, IN HIS OFFICIAL CAPACITY 1st Respondent / First Defendant THE MINISTER OF JUSTICE OF THE REPUBLIC OF SOUTH AFRICA, IN HIS OFFICIAL CAPACITY 2nd Respondent / Second Defendant

Coram: Titus AJ

Heard: 4 July 2025 – the application for leave to appeal was heard

virtually on the Microsoft Teams digital platform.

Delivered: 22 July 2025 – This judgment was handed down electronically by circulation to the parties' representatives by email and by release to SAFLII. The date and time for hand-down is deemed to be 15H00 on 22 July 2025.

ORDER

It is ordered that:

(i) The Plaintiff’s application for leave to appeal against the quantum of damages awarded, is dismissed with costs.

JUDGMENT [APPLICATION FOR LEAVE TO APPEAL]

Titus AJ:

[1] The parties are as referred to as in the main action. The Plaintiff is the Applicant in this application for leave to appeal and the First and Second Defendants are the First and Second Respondents respectively.

[2] As it appears from the Plaintiff’s notice of application for leave to appeal, leave to appeal is confined to ‘the correctness of the amount contained in paragraph (ii) of the order’,

specifically challenging the correctness of the quantum of damages awarded. The application is not opposed.

[3] Ms Wessels appeared for the Plaintiff. There was no appearance for the Defendants.

[4] The application for leave to appeal advances twelve grounds of appeal. In essence, these may be distilled into five principal points. First, it is alleged that this Court misdirected itself on both the factual and legal issues. Second, this Court is said to have erred by excluding the amount recommended by the expert witness for future medical expenses from the damages awarded. Third, it is contended that this Court failed to apply relevant precedent, either correctly or at all. Fourth, the Plaintiff avers that this Court adopted a ‘mechanical approach’ by awarding a standard amount of R15 000 per day of detention, without regard to context. Fifth, it is submitted that this Court neglected to consider all material facts, particularly the duration of detention which extended to 43 days.

[5] The test for deciding applications of this nature is set out in subsection 17(1)(a)(i) of the Superior Courts Act 10 of 2013 (‘the Act’), and it provides that leave to appeal may only be given

where the judge concerned is of the opinion that ‘the appeal would have a reasonable prospect of success’. This test is a marked shift from the test that has gone before. The shift from ‘might’ (under the repealed Supreme Court Act 59 of 1959) to ‘would’ in the Act reflects a higher threshold.

[6] In Mont Chevaux Trust v Tina Goosen, LCC 14R/2014 (unreported), the Land Claims Court held (in an obiter dictum) that the wording of this subsection raised the bar of the test that now has to be applied to the merits of the proposed appeal before leave should be granted. The word ‘would’ in the subsection implies a measure of certainty, not mere possibility or speculation.

[7] This view has now been endorsed by the SCA in the unreported judgment of Shongwe JA in Notshokovu v S, case no: 157/2015 [2016] ZASCA 112 (7 September 2016). In that matter the SCA remarked that an appellant now faces a higher and a more stringent threshold, in terms of the Act compared to that under the provisions of the repealed Supreme Court Act. What is clear from these authorities is that a liberal approach to granting leave to appeal is discouraged as being inconsistent with section 17 of the Act[1].

[8] Where general damages are concerned, as is the case here, it is trite that a trial court has a wide discretion when it comes to determining the quantum of general damages. An appeal court will therefore be slow to interfere with an award of a trial court and impose its own subjective quantum. The Constitutional Court in Dikoko v Mokhatla held that:

‘. . . [S]hould an appellate Court find that the trial court had misdirected itself with regard to material facts or in its approach to the assessment, or having considered all the facts and circumstances of the case, the trial court’s assessment of damages is markedly different to that of the appellate court, it not only has the discretion but is obliged to substitute its own assessment for that of the trial court. In its determination, the Court considers whether the amount of damages which the trial Court had awarded was so palpably inadequate as to be out of proportion to the injury inflicted.’[2]

[9] In assessing the quantum of damages, the SCA in Motladile v Minister of Police[3] re-affirmed the specific considerations in the process of assessment as follows:

‘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.”

[10] In assessing the amount of damages to award the Plaintiff, I am satisfied that I did not err in my discretion and that I exercised it judicially and reasonably. I considered all the relevant factors and the law appropriately. The arrest, in this matter was not malicious nor, in its execution, humiliating. There is no complaint of excessive force nor of public humiliation. The Plaintiff, a 57-year-old unemployed male, was arrested on suspicion of cable theft. He was not arrested arbitrarily. He was subsequently detained for 43 days during which time he made several appearances at Makwassie Magistrates Court before the criminal matter against him was withdrawn. There is no suggestion of improper motive or malice or harsh conduct on the part of members of the Defendants. This Court’s award reflects the appropriate solatium for the Plaintiff’s claim for general damages. It is commensurate with the proven harm suffered and accords with constitutional values protecting individual freedom.

[11] In broadly comparable recent cases, judgments reflect widely varying awards. In Minister of Safety and Security v Seymour[4], the SCA considered a series of cases before noting that there was no ‘discernable pattern other than that our courts are not extravagant in compensating the loss’[5] and that in the process of quantifying non-patrimonial loss, principles of fairness and conservatism play a decisive role in assessing damages[6].

[12] In J E Mahlangu and Another v Minister of Police [2021] ZACC 10, the two applicants sought damages for their unlawful arrest and detention for the period 30 May 2005 to 10 February 2006. They

were arrested without a warrant and without reasonable suspicion and detained unlawfully. The Minister was ordered to pay an amount of R550 000 to Mr Mahlangu and R500 000 to Mr Mtsweni with costs as appropriate solatium for the 8 months and 10 days of their detention.

[13] In Minister of Safety and Security v Tyulu[7], a Full Bench award of R50 000 was reduced on appeal to the Supreme Court of Appeal to only R15 000, on consideration of the totality of facts (including a short period of detention, and despite the social and professional standing of the respondent, who was a magistrate, and the improper motive for the arrest). The Court summarised the correct approach to the assessment of damages for unlawful arrest and detention 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.” (references omitted)

[14] By comparison, in Peterson v Minister of Safety and Security[8], Plasket J awarded R60 000 for unlawful arrest and detention despite the plaintiff only having been in custody for eight hours, on the basis of the indignity of the situation. The plaintiff was arrested in a state of undress, observed by people in the street and subjected to malicious conduct on the part of his arrestor.

[15] In the light of the abovementioned authorities, the award made in this matter is contextually justified. While Ms Wessels cites a list of authorities to justify a higher award, the facts in those authorities are not analogous to the facts of this matter. Unlike the authorities cited, the Plaintiff was, by way of example, not held in inhumane conditions, not withheld from contact with his family, not assaulted, not tortured, not held in solitary confinement and did not lose any employment, or suffer any patrimonial loss, due to his incarceration.

[16] Ultimately, the determination of damages remains a matter within the judicial discretion of the Court, to be exercised judiciously and with due regard to fairness. The quantification is not governed by rigid formulae but is guided by principles of equity and reasonableness, assessed in light of the specific facts and circumstances of each case (ex aequo et bono).

Conclusion

[17] As for the award of R650 000 in respect of the Plaintiff’s general damages, I remain of the view that, all things considered, and bearing in mind the purpose of awarding damages, the award is just and fair to all concerned. I am not persuaded that another court is likely to award an amount different to that awarded by me. I am therefore of the view that there is no reasonable prospect that the appeal would succeed, and I am also not persuaded that it is in the interests of justice that the appeal should be heard. The application stands to be dismissed, with costs.

Order

[18] Consequently, the following order is made:

(i) The Plaintiff’s application for leave to appeal against the quantum of the general damages awarded, is dismissed with costs.

TITUS AJ

Acting Judge of the High Court

North West Division

Mahikeng

Appearances:

For the Plaintff: Adv C Wessels

Instructed by: Nienaber & Wissing Attorneys

For the Defendant: no appearance

[1] See for example Mothuloe Inc Attorneys v The Law Society of the Northern Provinces and Another (213/16) [2017] ZASCA 17 (22 March 2017)

[2] Dikoko v Mokhatla 2006 (6) SA 235 (CC); 2007 (1) BCLR 1 (CC) paragraph 57

[3] Motladile v Minister of Police [2023] ZASCA 94 at paragraph 17

[4] 2006 (6) SA 320 (SCA) at 326

[5] Visser and Potgieter The Law of Damages (3rd Ed) 547 at fn 421

[6] Ibid at 500

[7] 2009 (5) SA 85 (SCA)

[8] [2009] ZAECGHC 65