Maetso v Minister of Police of the Republic of South Africa and Another (3115/2023) [2025] ZANWHC 61 (28 March 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

Plaintiff

and

THE MINISTER OF POLICE OF THE REPUBLIC OF

SOUTH AFRICA, IN HIS OFFICIAL CAPACITY

First Defendant

THE MINISTER OF JUSTICE OF THE REPUBLIC OF

SOUTH AFRICA, IN HIS OFFICIAL CAPACITY

Second Defendant

Coram: Titus AJ

Reserved: 24 March 2025

Delivered: 28 March 2025

ORDER

It is ordered that:

(a) The plaintiff’s application for condonation for the late delivery of his notice in terms of section 3(4) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 is condoned.

(b) The first defendant shall pay the plaintiff the sum of R650 000.00 in respect of the plaintiff’s unlawful arrest and detention.

(c) The first defendant shall pay interest on the aforesaid amount at the applicable legal rate of interest a tempore morae from the date of summons to date of payment.

(d) The first defendant shall pay the plaintiff’s costs of suit, including the costs of the plaintiff’s counsel, taxable on Scale A.

JUDGMENT

TITUS AJ

Introduction

[1] In this matter, the defendants are barred from pleading. They have not taken up an opportunity to make an application to uplift the bar and to deliver their plea. This then is an application for judgment

in default of a plea.

[2] The applicant is an unemployed, married, 57-year-old male who claims damages for his unlawful arrest by members of the South African Police Services on 19 May 2021. He alleges that he was unlawfully arrested without a warrant, on suspicion of cable theft, and unlawfully detained for 43 days. The Court is called on to determine both the merits of his claim and quantum.

[3] At the hearing, the plaintiff was represented by Advocate C Wessels, instructed by HG Aucamp Attorneys, and the defendants by Mr Letsoalo of the State Attorney who placed himself on record, it must be noted,

only after the start of proceedings.

Background

[4] Prior to the institution of the action, the plaintiff caused the requisite formal notice to be served on the defendants, in the prescribed manner, informing them of the institution of these proceedings[1]; albeit that these notices were delivered late. The notices were subsequently followed up with service on the defendants of the

summons in the matter care of the Office of the State Attorney.

[5] On 24 January 2024, the defendants served their notice to defend on the plaintiff. They however failed to deliver their respective pleas in good time and, accordingly, on 15 March 2024 the plaintiff formally called on them to deliver their respective pleas within five days of the notice, failing which they would be barred from doing so.

[6] The defendants failed to heed the so-called ‘notice of bar’ and they were consequently ipso facto barred from delivering their respective pleas[2]. The plaintiff thereafter applied for judgment to be entered against the defendants in default of their pleas.

[7] On 4 September 2024, the application for judgment by default was postponed by this Court, at the instance of the defendants, to 24 March 2025 to give them time to deliver their applications to uplift the bar and their respective pleas.

[8] When this application served before this Court on 24 March 2025, the defendants had yet to deliver their respective applications and pleas. Mr Letsoalo applied for a further postponement of proceedings for the defendants to deliver their respective applications and pleas. He informed the Court that the defendants had made application for upliftment of the bar earlier this year. He however had no such application, or pleas for that matter available, nor it must be said, were the relevant applications filed of record. Ms Wessels also informed the Court that the plaintiff had not received service of any application to uplift the bar nor any plea.

[9] The Court stood proceedings down to after the lunch break to allow Mr Letsoalo to produce the defendants’ application and their pleas. As it turned out, neither those applications nor the pleas nor Mr Letsoalo made an appearance after the lunch adjournment. The proceedings continued in his absence.

The evidence

[10] The plaintiff testified on the merits. His evidence was as follows. He is a layman with a Grade 12 qualification with no tertiary, professional or other specialised knowledge or learning. On or about 19 May 2021, and between Makwassie and Wolmaranstad, while a passenger in a vehicle, he was arrested without a warrant by approximately four members of the South African Police Services (‘SAPS’). He was detained in the police cells at Makwassie Police Station on suspicion of theft. At all relevant times, the members of the SAPS acted within the course and scope of their employment with the first defendant.

[11] Approximately 48 hours after his arrest, he appeared in the Makwassie Magistrates Court where the proceedings against him were postponed to a later date. He was remanded into custody pending his next court appearance. The plaintiff ultimately made several appearances in court over the ensuing weeks and he spent 43 days in total in custody before the criminal matter against him was withdrawn.

[12] The plaintiff alleges that he had been arrested and detained, during these 43 days, unlawfully and without good cause. He complains that during his period in detention, he was subjected to very cold conditions in his holding cell that he shared with others. He also had no proper bedding, no warm clothes and no hot water. The plaintiff further complains of unpleasant detention conditions and, without any corroborative medical evidence it must be noted, that he had developed a throat infection as a result which in turn caused permanent damage to his vocal chords.

[13] The Court further heard that the plaintiff was an unemployed truck driver and he has been so unemployed since the national ‘lockdown’

in March 2020. This evidence differs however from the version he gave to his Clinical Psychologist, Ms Moyra Tsambos (‘Tsambos’).

In her report, Tsambos recorded that the plaintiff had informed her that ‘he was working as a truck driver in the Katu mines prior to his untimely arrest.’[3]

[14] Tambos was the second witness for the plaintiff. She testified that she undertook a comprehensive psychological assessment of the plaintiff and that she compiled a medico-legal report of her findings. Her report was received into evidence. Tsambos testified that her assessment was to ascertain whether the plaintiff presents with any psychiatric and/or psychological sequelae resulting from his arrest. She concludes that the plaintiff suffers from post-traumatic stress disorder, with a comorbidity of major depressive disorder. Tsambos recommends therapy for the plaintiff that she estimates would cost R176 100.00.

[15] The plaintiff accordingly claims damages in the amount of R650 000.00 for his unlawful arrest and detention and, additionally, R650 000.00 for his loss of freedom, distress, inconvenience, humiliation and injured dignity. He also makes application for condonation for the late delivery of his statutory notices[4].

The Legal Principles

[16] It is trite that the Bill of Rights guarantees the right of security and freedom of the person which includes the right ‘not to be deprived of freedom arbitrarily or without just cause’. As far back as 1986, the Appellate Division (as it then was) in Minister of Law and Order v Hurley [1986] 2 ALL 428 (A) held, per Rabie CJ, that:

“ (a)n arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems fair and just to require the person that the person who arrested or who caused the arrest of another person should bear the onus of proving that his actions was justified in law’

[17] More recently, in JE Mahlangu and Another v Minister of Police[5] the Constitutional Court held that once it is established that the constitutional right not to be deprived of one’s physical

liberty has been interfered with, the deprivation is prima facie unlawful, the infringer bears the onus to prove that the interference was justified.

[18] The plaintiff’s evidence that he was unlawfully arrested and detained by members of the SAPS, and that he was so detained for 43 days, stands uncontested. In the premises, absent any evidence to the contrary, this Court finds that the plaintiff has discharged the onus to prove, on a balance of probabilities, that his arrest and detention by the members of the SAPS was indeed unlawful. The first defendant, as their employer, is vicariously liable[6] for their conduct as the relevant members were executing their duties as police officers.

[19] The plaintiff claims damages also against the second defendant for his alleged unlawful detention. Whether or not the second defendant is so liable should be determined on the ordinary principles of legal causation[7]. This Court has found that the plaintiff was arrested and detained unlawfully by the police. The arresting officers must have foreseen, and reconciled themselves to that fact that absent any evidence to the contrary from them, their arrest and detention of the plaintiff would be unlawful. So too, as a consequence, any subsequent judicial detention. For this reason the first defendant is also liable to the plaintiff for his judicial detention.

[20] Turning to the plaintiff’s claim for damages, the general approach regarding the amount of damages for unlawful arrest and detention was appropriately captured by Bosielo AJ in Minister of Safety and Security v Tyulu[8], the Judge remarked thus:

" (i)n 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”.

[21] 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. Our Courts have

cautioned that previous awards in a claim for damages of this nature should only serve as a useful guide and should not be followed

slavishly. In Minister of Safety and Security v Seymour[9], Nugent JA remarked that:

"…(t)he assessment of awards of general damages with reference to awards made in previous cases is fraught with difficulty. The facts of a particular case need to be looked at as a whole and few cases are directly comparable. They are a useful guide to what other courts have considered to be appropriate but they have no higher value than that".

[22] The Court went on and said at paragraph 20 that " …(m)oney can never be more than a crude solatium for the deprivation of what in truth can never be restored and there is no empirical measure for the loss .... It needs to be kept in mind when making such awards that there are many legitimate calls upon the public purse to ensure that other rights that are no less important also receive protection …”.

[23] Factors which usually play a role in assessing the quantum of damages are the circumstances under which the deprivation of liberty took place, such as the presence or absence of improper motive or 'malice' on the part of the defendant; the harsh conduct of the defendant; the duration and nature of the deprivation of liberty; the status, standing, age, health and disability of the plaintiff; the extent of the publicity given to the deprivation of liberty; awards in previous comparable cases together with the effect of inflation is also taken into account. In addition to deprivation of physical freedom, other personality interests such as a good name, reputation, and honour as well as constitutionally protected fundamental rights infringed must also be considered.

[24] On conditions of detention, section 35 (2) (e) of the Constitution provides that:

"everyone who is detained including every sentenced prisoner has the right to conditions of detention that are consistent with human dignity, including at least exercise and provision of adequate accommodation, nutrition, reading material and medical treatment at the state expense."

[25] The plaintiff suffered the indignity of an unlawful incarceration. He further testified to the general unpleasant conditions in his holding cell that he shared with many others and also the quality of the culinary options available there. In addition to the conditions of his detention, he complains also that, on his release from detention, he was shunned by his community who now view him with suspicion and call him a ‘skelm’[10].

[26] A troubling aspect of the plaintiff’s evidence in this Court is that his evidence of his employment status differs from that which he conveyed to Tsambos during his assessment by her. Further, his complaint of permanent damage to his vocal cords arising out of his detention is, as this Court notes before, not supported by any medical evidence nor, for that matter, did he report it to Tsambos when she recorded his medical history[11]. The alleged permanent damage to his vocal chords is a significant event which, for an unexplained reason, he neglects to relate to Tsambos. Instead, he only informs her of chest pains, painful legs and headaches. The plaintiff’s troubling evidence in this regard suggests that his evidence, or certainly some parts of it, are curated to simply exaggerate his condition.

[27] Be that as it may, Tsambos evidence qua expert that the unlawful arrest and detention caused the plaintiff the emotional and psychological harm alleged stands uncontested; the plaintiff’s exaggerated accounts notwithstanding.

[28] The Court has a discretion as to the amount to award as damages for unlawful arrest and detention of the plaintiff. The plaintiff seeks payment of R1 300 000.00 (one million three hundred thousand rand). However, having regard to the authorities, the purpose of awards of damages and the particular facts of this case, this Court finds that it would just and reasonable to instead award an amount of R650 000.00 to the plaintiff in respect of his unlawful arrest and subsequent detention for 43 days.

Order

[29] In the premises, the Court orders that:

(i) The plaintiff’s application for condonation for the late delivery of his notice in terms of section 3(4) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 is condoned.

(ii) The first defendant shall pay the plaintiff the sum of R650 000.00 in respect of the plaintiff’s unlawful arrest and detention.

(iii) The first defendant shall pay interest on the aforesaid amount at the applicable legal rate of interest a tempore morae from the date of summons to date of payment.

(iv) The first defendant shall pay the plaintiff’s costs of suit, including the costs of the plaintiff’s counsel, taxable on Scale A.

RR Titus

Acting Judge of the High Court

North West Division, Mahikeng

[1] Section 3(1) of the Institution of Legal Proceedings Against Certain Organs of State Act, 40 of 2002.

[2] Uniform Rule 26

[3] Bundle page 51, para 5

[4] Supra, note 1

[5] [2021] ZACC10 at para [32]

[6] F v Minister of Safety and Security 2012 (1) SA 536 (CC)

[7] See Bryan James De Klerk v Minister of Police 2020 (1) SACR 1 (CC), 2021 (4) SA 585 (CC)

[8] 2009 (5) SA 85 (SCA) at para 26

[9] (295/05) [2006] ZSCA 71

[10] A colloquial term referring to a dishonest person

[11] Bundle, page 51