Nemudzivhadi and Others v Minister of Safety and Security and Others (02/2012) [2023] ZALMPTHC 15 (14 December 2023)

IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO LOCAL DIVISION, THOHOYANDOU

CASE NO: 02/2012

(1) REPORTABLE: NO/YES

(2) OF INTEREST TO OTHER JUDGES: NO/YES

(3) REVISED.

DATE: 14/12/2023

SIGNATURE

In the matter between:

TSHIMANGADZO WALTER NEMUDZIVHADI First

Plaintiff

TSHIFHIWA SAMUEL MASHAMBA

Second Plaintiff

TSHILIDZI PHINEAS SIGWADI

Third Plaintiff

ALUWANI STANLEY MULAUDZI

Fourth Plaintiff

and

THE MINISTER OF SAFETY AND SECURITY

First Defendant

THE NATIONAL DIRECTOR

OF PUBLIC PROCECUTION

Second Defendant

M.R MATHIVHA

Third

Defendant

JUDGMENT

RAVELE AJ

Introduction

[1] Mr. T.S Nemudzivhadi (First Plaintiff), Mr. T.S Mashamba (Second Plaintiff), Mr. T.P Sigwadi (Third Plaintiff) and Mr. A.S Mulaudzi (Fourth Plaintiff), issued summons in this Court against the Minister of Safety and Security (First Defendant), National Director of Public Prosecutions (Second Defendant) and Control Prosecutor of Vuwani Magistrate Court, Mr. Mathivha (Third Defendant) claiming damages for unlawful arrest and detention arising from their arrest and subsequent imprisonment for 53 (Fifty three) days. The Plaintiffs’ also claim legal costs[1] expanded in applying for bail as well as loss of income[2]. A separate combined summons were issued on 3 January 2012. The Plaintiff’s particulars of claim were carbon copies of each other.

[2] The actions instituted against the Defendants arose from an unlawful arrest and detention of the Plaintiffs by the members of the South African Police Services who were there and then acting in their official capacity as employees of the First Defendant. The actions of all the Plaintiffs are based on the same incident.

[3] The actions were heard together after consolidation of the Plaintiffs’ actions. When this matter came before this Court on 9 October 2023, the parties settled the issue of liability in respect of the First Defendant. The tender on liability was accepted by the Plaintiffs[3]. In premise, this Court made an order which reads as follows:

i. The Defendant admits liability for the unlawful arrest and subsequent detention of the Plaintiffs of the period of 3 April 2011 to 26 May 2011.

ii. The trial is to be proceed on the issue of general damages in respect all Plaintiffs.

iii. The issue pertaining to loss of income in respect of the First Plaintiff is separated in terms of Rule 33 (4) and postponed sine die. [4]

Background and common cause facts

[4] On 3 April 2011, the Plaintiffs were at Lwamondo Mirunzini lodge drinking when they heard that Mr. Bongani Maboya (Mr. Maboya) was assaulted by certain unknown person who later was identified as Mr. Johannes Mulaudzi (the deceased). They went with the group that included Mr. Maboya to the deceased’s place of residence to confront him. At the deceased place of residence, they were told the deceased was not there but was at another place.

[5] The Plaintiffs left the deceased place of residence with the group but did not follow Mr. Maboya to the place where the deceased was said to be. After that, they went to Mr. Maboya’s place of residence where they did not find him. They then went to the Third Plaintiff’s place of residence where they slept inside the car.

[6] The following morning, the Second, Third and Fourth Plaintiffs went to the Second Plaintiff’s brother. As they were hungry, they then cooked and ate food after that they went to Second Plaintiffs’ place of residence at Tshalovha where they found the Second Plaintiff’s sister who was braiding and/or plaiting hair on the

other lady. The Plaintiffs were arrested by Warrant Officer Mudogwa. A day after they were arrested, they were subjected to an identification parade and Mr. Maboya was identified and none of them were identified. They were detained at Levubu Police station, Vuwani Magistrate Court cells and Matatshe Prison from the 3 April 2011 to 26 May 2011 (53 days).

[7] On 8 April 2011, Limpopo Mirror Newspaper published an article relating to the tragic incident that led to the shooting of the deceased. The names and pictures of the Plaintiffs were also attached. On 25 May 2011, the Deputy Director of Public Prosecution Limpopo High Court, withdrew the charges of murder against the Plaintiffs on 26 May 2011, Adv. D.B Manyuwa, Deputy Director of Public Prosecution Limpopo High Court issued a certificate in terms of Section 60 (11) (a) of Criminal Procedure Act 51 of 1977 confirming that Mr. Maboya will be arraigned in the High Court on the charge of murder referred to in Schedule 6.

The Plaintiffs’ evidence on quantum

[8] The First Plaintiff testified during trial that when he was arrested, he was going to Mr. Maboya’s place of residence. He was working with him in an accounting business on a part-time basis. Upon his arrival at Mr. Maboya’s place of residence, he found several police officers. At the time of his arrest, he was working at First National Bank as a teller and had been working as a teller since 14 August 2006. His accounting job was a job which relates to auditing of schools and pre-schools.

[9] The police did not find Mr. Maboya and Mr. Maboya’s sister informed the police that the previous night the First Plaintiff was in the company of Mr. Maboya. The police asked him to go and show Mr. Maboya’s vehicle as the latter was still at Masisi. When the police did not find Mr. Maboya, they informed him that they were also looking for the Second Plaintiff. The police drove to the Second Plaintiff ‘s place of residence with the First Plaintiff where they arrested him together with the Third and Fourth Plaintiffs.

[10] The police proceeded to Levubu Police Station with him inside the police vehicle while uncuffed. At Levubu Police Station, one police officer asked why he was not cuffed. He was immediately cuffed and not told the reason for his arrest. After being cuffed, he waited at reception until Bongani came, and together with other Plaintiffs, they were detained at the police cell.

[11] The Second Plaintiff testified that he is 48 years old and when he was arrested in 2011, he was 36 years old. He has 5 (five) children and has been employed at Transnet since 1 August 2000. In the early hours of 3 April 2011, he was in company of the Third and Fifth Plaintiffs drinking at Mirunzini lodge.

[12] The following morning, police came to his homestead while he was sleeping. He was told that he was arrested for murder. He enquired whom did he kill. They told him that he will speak at the Police Station. He was arrested in front of his 2 (two) sisters and 1 (one) lady whose hair was being braided and/or plaited by his sisters. The neighbour stated that he must go and rot in jail. He was arrested with the Third and Fourth Plaintiffs. When the police came to arrest him, they came with the First Plaintiff. Together with the other Plaintiffs, they were taken to Levubu SAPS. The police waited for a while until he arrived, they took his statement, and he was detained together with other Plaintiffs.

[13] When he was taken to the cell, the police stated that: “here are those similar to you”. The blankets which they were given were itchy and smelly. They bathed with cold water. The toilet was opened. If you are using it other cellmates could see you. The toilet did not work all the time. The cell reminded him of his grandmother’s pigsty. All the time when he in custody, he was thinking of his work and his children.

[14] It was not the first time he was arrested. He was arrested for assault Grievous Bodily Harm (GBH) case which was later withdrawn. He has no previous conviction. It took him a week to believe that he was arrested. He could not sleep during the night. He would only sleep during the day. He was subjected to an identification parade. He was not pointed out. Mr. Maboya was pointed out. When he was taken to Court, the case was postponed for further investigation and bail. The Court was not informed that he was not pointed out at the identification parade. The charges were withdrawn during bail proceedings. At Matatshe, they were ordered to open their legs and squat. This was done when they were stripped naked. In the process, prison official would comment about their manhood.

[15] At Matatshe, he did not sleep as he heard many stories about the place. Another boy told him that he should share the bed with him. He was never assaulted nor raped. When he returned to his workplace, the treatment was dissatisfactory as they were looking at him as someone who is alleged to have murdered someone. The story of his arrest reached Witbank.

[16] Presently he cannot keep friends. The arrest traumatised him because when the public looks at him, they see a criminal. He became aware of Mirror newspaper article when his sister visited him at Levubu Police Cell. His mother came while he was still at Levubu Police cell and told him that she is disappointed. He knew that she was angry, and she even cried. After he was released from prison, he attended sessions with a psychologist at work regarding his arrest and detention.

[17] The Third Plaintiff testified that at the time of his arrest, he was 32 (thirty-two) years old. He was not employed. He now works at Lwamondo Circuit as a Security Officer. Before this incident, he had never been arrested nor convicted. He testified that before he was arrested, the police came and asked who the Second Plaintiff was. He showed them who was the Second Plaintiff. The police arrested him after they had arrested the Second and Fourth Plaintiffs. He was not told of the reason of his arrest. He was taken to Levubu Police Station where after administration work was prepared, he was taken to the cell. He also deposed a warning statement before the police.

[18] The cell was full, dirty, and dusty. There was an unusual smell caused by the toilet and those cellmates smoking. They bathed with cold water, the toilet was inside the cell and was opened. He could see a person when he is inside the toilet. He was not able to sleep. The blankets were itchy. He was taken for identification parade before his first appearance and he was not pointed out, Mr. Maboya was pointed out.

[19] During bail application, the criminal charges were withdrawn. At Matatshe Prison, they were searched naked in front of other inmates. His bath soap was stolen. They were transferred from Matatshe to Levubu Police Station every time they had to attend Court. After he was released, the community was not treating him as they previously had and often make statements such as: “here is the murderer”. He lost his piece jobs because of his arrest and detention.

[20] The Fourth Plaintiff was the last witness to testify. His evidence was that at the time of his arrest, he was 21 years old doing grade 12 at Gwamasenga Secondary School. He had no previous encounter with the police. He has no previous conviction. While he was at the Second Plaintiff homestead, the police came and asked who Tshifhiwa Mashamba was. They woke the Second Plaintiff up as he was sleeping. The police told him that he was under arrest.

[21] The police did not inform him of his rights. He was taken to Levubu Police Station. At Levubu Police Station, they waited at the charge office until Mr. Maboya arrived, where after they were taken to the cell. He was detained in the same cell with Second, Third Plaintiffs and other cellmates. The cell was full. When he entered the cell, he was scared as he was face to face with the scariest people he had ever encountered. The police told other inmates that big criminals are coming. The condition at the cell was bad. It was stinky, dusty and the blankets were infested with lice and inching. The cell had a toilet which they sleep next to. The water was cold, and inside the cell they would eat while close to the toilet which he found to not

be healthy for him to eat next to the toilet. He never enjoyed the food.

[22] The second day after his arrest, he was taken to an identification parade. At the identification parade, he was not pointed out. Mr. Maboya was pointed out by 3 (three) people. On his first appearance at Court, he applied for bail which was not granted. He was released before the bail proceeding was finalised.

[23] At Matatshe, they were striped and searched naked and were given sheets which were already used by other inmates. He was threatened at the cell. In the middle of the night, he could hear other inmates practicing sodomy. Another inmate approached him and wanted to have sexual intercourse with him. He reported him to the police, and he was moved to another cell. At Matatshe, he became sick as he had sinus and headache and was not taken to clinic.

[24] After his release, he had to go back to school. At school, other learners would surround him and mock him, saying that the murderer is back. He failed grade 12 and passed through supplementary exam. The Mirror newspaper article was also published on Facebook. He felt unwelcomed amongst the community members. His parents no longer trusted him.

The law

[25] As a starting point, police, like any other state functionary in the country for that matter, are constrained by the principle of legality imposed by the Constitution and may not exercise any power nor perform any function beyond that conferred upon them by law. That is a basic component of the rule of law and one of the founding values of our Constitution.[5]

[26] It is important to remember what the Supreme Court of Appeal said in Tyulu v Minister of Safety and Security:[6]

‘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 case and to determine the quantum of damages on such facts….’

[27] In Rahim and 14 others v Minister of Home Affairs[7] the Supreme Court of Appeal stated the following when it listed factors relevant when determining the amount of damages to award for the deprivation of liberty:

‘The deprivation of liability is indeed a serious matter. In cases of non-patrimonial loss where damages are claimed the extent of damages cannot be assessed with mathematical precision. In such cases the exercise of a reasonable discretion by the court and broad general considerations plays a decisive role in the process of quantification. This does not, of course absolve a plaintiff of adducing evidence which will enable a court to make an appropriate and fair award. In cases involving deprivation of liability the amount of satisfaction is calculated by the court ex aequo et bono. Inter alia the following factors are relevant: circumstances under which the deprivation of liability took place;

(a) the conduct of the defendants; and

(b) the nature and duration of deprivation …”

[28] In Visser & Potgieter, Law of Damages[8], the following are other factors that a Court must consider:

“'In deprivation of liberty the amount of satisfaction is in the discretion of the court and calculated ex aequo et bona. Factors

which can play a role are the circumstances under which the deprivation of liberty took place; the presence or absence of improper motive or 'malice' on the part of the defendant; the harsh conduct of the defendants; the duration and nature (e.g. solitary confinement or humiliating 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; the presence or absence of an apology or satisfactory explanation of the events by the defendant; awards in previous comparable cases; the fact that in addition to physical freedom, other personality interests such as honor and good name as well as constitutionally protected fundamental rights have been infringed; the high value of the right to physical liberty; the effects of inflation; the fact that the plaintiff contributed to his or her misfortune; the effect an award may have on the public purse; and, according to some, the view that the action iniuriarum also has a punitive function”.

[29 In Masisi v Minister of Safety and Security,[9] the following was stated:

“[10] The purpose of an award for general damages in the context of a matter such as the present is to compensate a claimant for

deprivation of personal liberty and freedom and the attendant mental anguish and distress.” And

“[18] The right to liberty is an individual's most cherished right, and one of the foundational values giving inspiration to an ethos premised on freedom, dignity, honor and security. Its unlawful invasion therefore strikes at the very fundament of such ethos. Those with authority to curtail that right must do so with the greatest of circumspection, and sparingly. In Solomon v Visser and Another 1972 (2) SA 327 (C) at 345A it was remarked that where members of the police transgress in that regard, the victim of abuse is entitled to be compensated in full measure for any humiliation and indignity which result. To this I add that where an arrest is malicious, the plaintiff is entitled to a higher amount of damages than would be awarded, absent malice.”

[30] In Olga v Minister of Safety and Security,[10]Jones J remarked:

‘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 affront to his dignity and his sense of worth, These considerations should be tempered with restraint and proper regard to the value of money to avoid the motion of an extravagant distribution of wealth from what Holmes J called the ‘“horn of plenty” at the expense of the defendant’.

[31] The Constitution imposes a duty on the Defendants not to perform any act that infringes the Plaintiffs rights, such as rights to human dignity and freedom and security of person.[11] Police officers may interfere with the exercise of individual freedoms only to an extent provided for by law.

Amendment

[32] During oral argument, the Second, Third and Fourth Plaintiffs sought to amend the amounts reflected in the particulars of claim to reflect an amount of R 1 600 000.00 (one million six hundred thousand rands only) for general damages. In Macduff and Co. (In Liquidation) v Johannesburg Consolidated Investment Co, Ltd,[12] Stratford J said the following regarding application for amendment of pleadings:

‘My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, so that by his blunder he has done some injury to his opponent which could not be compensated for by costs or otherwise.’

[33] It has been held by our Courts in a number of cases, that the aim in allowing amendment to pleadings is to do justice between parties by deciding the real issues between them. In Rosenberg v Bitcoin,[13] it was held that our Courts should be in favour of an amendment whenever such amendment facilitates the proper ventilation of a

dispute between the parties.

[34 The proposed amendment should be allowed, as it does not create a new cause of action, nor does it change the disputed cause of action. There is no prejudice or injustice that will be suffered by the Defendants because of permitting an amendment as proposed. Having regard to the submission by the parties, I am satisfied that the application for leave to amend the pleadings must succeed.

Applying the law to the dispute in this case

[35] The First Plaintiff contends that the suitable award for damages is the sum of R 2 000 000.00 (two million rand), while the Second, Third and Fourth Plaintiffs contended, in their written closing and oral submission, that the reasonable amount should be the amount of R 1 590 000.00. The First Defendant contends that this Court should award damages which are fair and reasonable in the circumstances.

[36] I have considered a vast array of matters for comparison of award submitted by parties’ legal representatives in their comprehensive heads of argument. None of the matters fall squarely within the purview of the current facts under consideration to be an accurate guide.

[37] In Skhumbuzo Mfanafuthi Mthethwa v The Minister of Police[14], the Plaintiff was in custody for 42 days and on appeal, the Durban High Court awarded R 200 000.00 for unlawful arrest and detention.

[38] In Stayela Bhekinkosi Ngubane v Minister of Police[15] the Plaintiff was in custody for 44 days and was awarded the amount of R 400 000.00 while Onwuchewa v Minister of Police and Another[16] for the same number of days (44 days), the Plaintiff was awarded R 600 000.00. In Sinovuyo Godlo v Minister of Police[17], the Plaintiff was detained for 64 days and was awarded damages in the amount of R 650 000.00.

[39] In Phistos Pheloane v Minister of Police[18], the Plaintiff was awarded an amount of compensation of R350, 000.00 for unlawful arrest and detention for 55 days which would be worth R 444, 154.37 in September 2023.

[40] In Moloi v Minister of Police[19], North West Division ordered the Defendant to pay the amount of R550 000.00 for the Plaintiff who was arrested and detained for 2 (two) months and 6 (six) days. He was arrested dressed up in SAPS uniform in front of his colleagues and members of committee. In Lefa v Minister of Police,[20] the Plaintiff was arrested and detained for a period of 3 (three) months and 6 (six) days, and the court found an award of general

damages in the sum of R600 000.00 suitable.

[41] In Woji, the Supreme Court of Appeal took into account the following: the cells where the Plaintiff was kept were overcrowded, dirty and there were insufficient beds to sleep on, he was subjected to the control of a gang who raped other prisoners, he suffered the appalling, humiliating and traumatic indignity of being raped on 2 (two) occasions which he did not report to the authorities

for fear of retaliation from the gang members. The Plaintiff was incarcerated for a period of 13 (thirteen) months and the court found an award of R500, 000.00 suitable.

[42] In De Klerk[21], the Constitutional Court considered the fact that the Applicant was detained from 20 December 2012 to 28 December 2012. It also considered the fact that the Applicant had provided precedent for the quantum of the general damages he sought and the fact that the Respondent did not put up a serious fight in that respect.

It awarded damages in the amount of R300 000.00 for the 8 (eight) days’ deprivation of freedom.

[43] In Mahlangu[22], the Constitutional Court considered the fact that the relevant factors were that Mr. Mahlangu was tortured by several police officers before he made the confession that led to the deprivation of his liberty. The investigating officer did not disclose the torture and assault to the prosecutor, nor did he inform the prosecutor that the confession was engineered by the assault and torture. In addition, the Plaintiffs were placed in solitary confinement for 2 (two) months. It awarded the First Applicant the amount of R550 000.00 (present value at R 637 755.07) and the Second Applicant, total compensation in the amount of R500 000.00 (present value R 579 691.44).

[44] In this case, the Plaintiffs description of their experiences and conditions they endured whilst in detention were not seriously disputed by the Minister’s legal representative when they were cross-examined. The circumstances under which they were detained were unpleasant. No evidence was tendered by the Minister to contradict any of the Plaintiffs allegations. The Plaintiffs were detained for 53 (Fifty-three) days and suffered humiliation and degrading experiences. The humiliation they endured at the time of their arrest was exacerbated by the presence of neighbors and family members. The arrest and detention deprived them of their constitutional rights to liberty and dignity. The Plaintiffs had not committed the crime they were accused of, yet they received neither an apology nor a satisfactory explanation for their arrest and detention. The Plaintiffs’ arrest and detention received media coverage.

[45] In this case, I considered that the period of arrest and detention of the Plaintiffs was lesser than in Mahlangu and Woji and was not accompanied by assault when extracting statements from the Plaintiffs. The Plaintiffs’ legal representatives correctly

conceded that at the time of arrest of the Plaintiffs, there was no improper motive or malice on the part of police that was proven. The Plaintiffs were not placed in solidarity confinement. I, however, accept that no amount of damages can undo the humiliation and violation suffered by the Plaintiffs.

[46] I had to consider if the Plaintiffs career opportunities were impacted because of their arrest and detention. The claim for loss of income and/or loss of earning capacity was not before this Court. Ordinarily, the breach of a personal legal interest does not reduce the individual’s estate and does not have a readily determinable or direct monetary value. Moseneke DCJ in Van der Merwe v Road Accident Fund and Another[23] stated that: “non-patrimonial damages, which also bear the name of general damages, are utilized to redress the deterioration of a highly personal legal interests that attach to the body and personality of the claimant. However, ordinarily the breach of a personal legal interest does not reduce the individual’s estate and does not have a readily determinable or direct monetary value. Therefore, general damages are, so to speak, illiquid and are not instantly sounding in money. They are not susceptible to exact or immediate calculation in monetary terms. In other words, there is no real relationship between the money and the loss. In bodily injury claims, well-established variants of general damages include “pain and suffering”, “disfigurement”,

and “loss of amenities of life.”

[47] In assessing the appropriate amount for damages for the Plaintiffs’ unlawful arrest and detention, I also consider what is fair and reasonable to both Plaintiffs and the First Defendant with due regard to public policy. I am also astute to the fact that the public purse is not a horn of plenty. Guided by the recent decision of the Supreme Court of Appeal in Diljan v Minister of Police[24], it is my finding that the Plaintiffs are claiming excessive amounts for general damages. Makaula AJA in Diljan, addressed exorbitant claims in particulars of claims as follows:

[20] A word has to be said about the progressively exorbitant amounts that are being 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 a ‘thumbsuck’ without due regard to the facts of the 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 above principles enunciated above.”

[48] Whilst regard may be had to comparable cases and the awards made therein, I have also considered that comparable cases referred to above are nothing more than a useful guide to what this Court should consider to be appropriate on the facts of this case: that previous awards are not to be followed slavishly, and should not be “allowed to dominate the enquiry so as to become a fetter upon the Court’s general discretion in such matters.”[25]

[49] Having considered all the factors, and circumstances relevant to the assessment of damages referred to earlier in this judgment, having considered past awards, and the steady decline in the value of money,[26] I consider an amount of R 550 000.00 for each Plaintiff an appropriate award of damages. In arriving at this amount, I have derived guidance from the awards made in Phistos Pheloane, Moloi, Lefa, De Klerk and Mahlangu, referred to above.

[50] I have also considered that the High Court’s decisions in Ngubane, [27] Onwuchekwa, Goglo were decided some years before the Constitutional Court decision in Mahlangu. The High Courts in those matters did not enjoy the benefit of reasoning in Mahlangu. The High Courts may have viewed the assessment of appropriate damages differently had they had opportunity to consider the reasoning in Mahlangu.

Interest

[51] The Plaintiffs claim for interest in the particulars of claim on the amount of damages a tempore morae. The First Defendant was served with the letters of demand on the 2 August 2011. The Second, Third and Fourth Plaintiffs in their heads of argument relying on the decision of Blything v Minister of Safety and Security17contended that the First Defendant should be liable for the interest from the date of the demand.

[52] The Prescribed Rate of Interest Act[28] as amended provides that interest on unliquidated debt runs from date of service of demand or summons whichever date is the earlier. In Minister of Safety and Security and others v Janse van der Walt and Another[29] and Woji, the Supreme Court of Appeal ordered the First Defendant to pay the interest on the amount of damages awarded at the rate of 15.5% per annum from the date of demand to the date of payment. Similarly, the Constitutional Court in De Klerk and Mahlangu ordered the First Defendant to pay interest at the rate of 15.5 % per annum a tempore morae from date of demand to date of payment.[30]

[53] Respect for precedent requires this Court to follow above mentioned decisions of higher Courts. The Constitutional Court noted in Camps Bay Ratepayers’ and Residents’ Association, the doctrine of precedent is “not simply a matter of respect for courts of higher authority. It is a manifestation of the rule of law itself, which in turn is a founding value of our Constitution”.[31] Similarly, in Ruta,[32] the Constitutional Court held:

“Respect for precedent, which requires courts to follow the decisions of coordinate and higher courts, lies at the heart of judicial

practice. This is because it is intrinsically functional to the rule of law, which in turn is foundational to the Constitution.

Why intrinsic? Because without precedent, certainty, predictability and coherence would dissipate. The courts would

operate without map or navigation, vulnerable to whim and fancy. Law would not rule.”[33]

[54] As I am bound by the principle set in the above cases, I find that the interest is to accrue from the date of letter of demand to date of payment subject to the in duplum rule.[34] There are no facts or circumstances in this matter to justify a deviation from the default position of the rate of interest. This is so because the First Defendant was aware that it could not defend the Plaintiffs ‘claim on merit and none of the party could be blame for the delay in finalisation of the matter.

Costs

[55] When determining the scale on which to award costs, our Courts should accord the importance to the deprivation of a person’s liberty.[35] The Plaintiffs are substantially successful. They are entitled to costs of the action on High Court scale.

Order

[56] The following orders are made:

56.1. Leave to amend the Plaintiffs’ particulars of claim as set out in its Notice in terms of Rule 28(1) dated and signed on 26 October 2023 is hereby granted with no order as to costs;

56.2. The First Defendant is ordered to pay:

(i) An amount of R550 000 to the First Plaintiff;

(ii) An amount of R550 000 to the Second Plaintiff;

(iii) An amount of R550 000 to the Third Plaintiff;

(iv) An amount of R550 000 to the Fourth Plaintiff;

(iii) The above amounts are to be paid with interest at the prescribed rate from date of the of the demand, being 2 August 2011; and

(iv) The First Defendant is further ordered to pay the Plaintiffs’ costs of suit on High Court scale.

ACTING JUDGE: SO RAVELE

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA,

LIMPOPO LOCAL DIVISION, THOHOYANDOU

Appearances:

For the First Plaintiff: Adv. V T Moyo Instructed by: TJ Machete Attorneys For the Second, Third and Fourth Plaintiffs : Adv. CJS Kock Instructed by: Venter and Venter Inc For the First Defendant: Adv. Malange Instructed by: State Attorneys, Thohoyandou

[1] At the commencement of trial, the Plaintiffs withdrew their claim for loss of support.

[2] All Plaintiffs, except the First Plaintiff withdrew their claim for loss of income.

[3] This Court was satisfied that the compromise was competent and proper for it to be made an order of court as it met the requirements set out by the Constitutional Court in Eke v Parson [2015] ZACC 30; 2016 (3) SA 37 (CC) paras 25-26. See also Road Accident Fund v Taylor and other matter [2023] ZASCA 64; 2023 (5) SA 147 (SCA) para 40 -42.

[4]When separation was granted, this Court carefully considered whether it was convenient to adjudicated a separated

issue as directed by the recent Constitutional Court decision in Koch & Kruger Brokers CC and Another v financial Sector Conduct Authority and Others [2023] ZACC27; 2023 (11) BCLR 1329 (CC) (15 August 2023) and was satisfied that as the Second, Third and Fourth Plaintiffs have withdrawn their claim for loss of income, it will be convenient to decide the issue of general damages of all Plaintiffs.

[5] Masetlha v President of the Republic of South Africa [2007] ZACC 20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1 at para 80; Affordable Medicines Trust v Minister of Health [2005] ZACC 3; [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) at paras 49, 75 and 77 and Fedsure Life Assurance v Greater Johannesburg Transitional Metropolitan Council [1998] ZACC 17; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC) at para 58.

[6] Minister of Safety and Security v Tyulu [2009] ZASCA 55; 2009 (2) SACR 282 (SCA); [2009] 4 All SA 38 (SCA); 2009 (5) SA 85 (SCA) para 26 (Tyulu).

[7] Rahim v Minister of Home Affairs [2015] ZASCA 92; 2015 (4) SA 433 (SCA) (Rahim). 8 3 ed (2012) at 545- 548; HB Klopper Damages (2017) at 255 -259.

[7] Rahim v Minister of Home Affairs [2015] ZASCA 92; 2015 (4) SA 433 (SCA) (Rahim).

8 3 ed (2012) at 545- 548; HB Klopper Damages (2017) at 255 -259.

[9] 2011 (2) SACR 262 (GNP) paras 10 and 18.

[10] Olga v Minister of Safety and Security 2008 JDRJ582E paragraph 6 (ECD case number 608/207).

[11] Woji v Minister of Police [2014] ZASCA 108; 2015 (1) SACR 409 (SCA) para 28 (Woji). See also Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC) at paras 34-8 and 43-4. 11 1923 TPD 310.

[11] Woji v Minister of Police [2014] ZASCA 108; 2015 (1) SACR 409 (SCA) para 28 (Woji). See also

Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC) at paras 34-8 and 43-4. 11 1923 TPD 310.

[12] Macduff and Co. (In Liquidation) v Johannesburg Consolidated Investment Co. Ltd 1923 TPD 310

[12] Macduff and Co. (In Liquidation) v Johannesburg Consolidated

Investment Co. Ltd 1923 TPD 310

[13] Rosenberg v Bitcoin 1935 WLD 115.

[14] Unreported judgment of the High Court of South Africa, Kwazulu-Natal, Durban, Case Number: AR 186/2019 (28 July 2020).

[15] Unreported judgment of the High Court of South Africa, Kwazulu-Natal, Durban, Case Number: 4113/2008 (Ngubane).

[16] [2015] ZAGPPHC 919 (Onwuchewa).

[17] Unreported judgment of the High Court of South Africa, Kwazulu-Natal, Durban, Case Number: 8631/2007 (4 July 2017)(Godlo).

[18] Northwest Division under case number 1359/14, delivered on 24 May 2018 (Phistos).

[19] [2023] ZANWHC 94.

[20] [2022] ZAGPJHC 795; [2023] 1 ALL SA 132 (GJ) (17 October 2022) (Lefa).

[21] De Klerk v Minister of Police [2019] ZACC 32; 2019 (12) BCLR 1425 (CC); 2020 (1) SACR 1 (CC); 2021 (4) SA 585 (CC) (De Klerk).

[21] De Klerk v Minister of Police [2019] ZACC 32; 2019 (12) BCLR 1425 (CC); 2020 (1) SACR 1 (CC); 2021

(4) SA 585 (CC) (De Klerk).

[22] Mahlangu and Another v Minster of Police [2019] ZACC 32; 2019 (12) BCLR 1425 (CC); 2020 (1) SACR 1 (CC) (Mahlangu).

[22] Mahlangu and Another v Minster of Police [2019] ZACC 32; 2019 (12) BCLR 1425 (CC); 2020 (1) SACR 1

(CC) (Mahlangu).

[23] Van der Merwe v Road Accident Fund and Another (CCT48/05) [2006] ZACC 4 para 39.

[24] Diljan v Minister of Police [2022] ZASCA 103 at para 20 (Diljan).

[25] Protea Insurance Co Ltd v Lamb 1971 (1) SA 530 (A) at 535 H – 536 B referred to with approval in Seymour at para 17.

[26] Motladile v Minister of Police [2023] ZASCA 94 (12 June 2023) at para 25.

[27] JDR 1653.

[28] Prescribed Rate of Interest Act 55 of 1975.

[29] [2014] ZASCA 174; 2015 (2) SACR 1 (SCA).

[30] (Blything). See also Van Rooyen v Minister of Police2013 JDR 1149 (GNP) para 41.

[31] [2010] ZACC 19; 2011 (4) SA 42 (CC); 2011 (2) BCLR 121 (CC) at para 28.

[32] Ruta v Minister of Home Affairs [2018] ZACC 52; 2019 (2) SA 329 (CC); 2019 (3) BCLR 383 (CC).

[33] Ruta above at para 21.

[34] In Standard Bank of South Africa Limited v 011ea11ate /11vestme11ts (PM Ltd (i11 liquidatio11) [1997] ZASCA 94; 1998 (1) SA 811 (SCA) at 827HZulman JA described the rule as follows: "It provides that interest stops running when the unpaid interest equals the outstanding capital. When due to payment, interest drops below the outstanding capital, interest again begins to run until it once again equals that amount." In Paulsen and Ano v Slip Knot Investments 777 (Pty) Ltd2014 (4) SA 253 (SCA) at para 17,Wallis JA held that: "It provides that arrear interest ceases to accrue once the sum of the unpaid interest equals the amount of the outstanding capital. ...

[35] See De Klerk v Minister of Police 2018 ZASCA 45; 2018 2 All SA 597 (SCA); 2018 (2) SACR 28 (SCA) paras 18 and 55, the Supreme Court of Appeal said - regarding costs - that although the total quantum awarded is R30 000.00 which is far below the jurisdiction of the High Court, the appellant was justified in approaching the High Court because the matter concerned his liberty. Also see Motladile v Minister of Police 2023 ZASCA 94.