There exists a substantial body of South African case law that articulates the principles governing unlawful arrest and detention. The jurisprudence also canvasses the manner in which claims for damages arising therefrom are adjudicated. In two recent matters, the South African Supreme Court of Appeal ("SCA") and the North West Division of the High Court of South Africa, Mahikeng ("Mahikeng High Court"), have applied these established principles.
The underlying principles
In Areff v Minister of Police, the South African Appellate Division, as it was known then, held that the unlawful deprivation of liberty constitutes a grave wrong and is a serious inroad into the freedom and rights of a person. The South African Constitutional Court in Mahlangu and Another v Minister of Police held that the rights to freedom and security are sacrosanct and are safeguarded by the Constitution.
In Thandani v Minister of Law and Order, the Eastern Cape Division of the High Court's judgment held that unlawful arrest and detention constitute an inroad into the freedom and rights of an individual.
Individuals who are subjected to unlawful arrest and detention often claim damages from the State. In Minister of Safety and Security v Tyulu, the SCA held that the purpose of awarding damages is not to enrich an aggrieved party. Instead, it is to offer the individual solatium for their injured feelings.
When the courts deal with the assessment of a damages claim, it must be done on a case-by-case basis, with the facts of the particular case being scrutinised. Although prior cases may be of assistance to a court, in Minister of Safety and Security v Seymour, the SCA held that few cases are directly comparable.
Various factors exist to determine the assessment of damages. In Diljan v Minister of Police, the SCA highlighted these factors:
- 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;
- Awards made in previous cases; and
- Other relevant factors peculiar to the case under consideration.
Van der Nest NO v Minister of Police Judgment
Ms Magopi was taken into custody by the arresting officer, who informed her that the reason for her arrest was the possession of stolen property. The arrest which was witnessed by Ms Magopi's partner and neighbours, left Ms Magopi feeling embarrassed and humiliated. She was placed in the back of a police van, where a rifle lay and the police drove at a high speed through potholes causing pain in her right leg due to a previous injury.
Ms Mogapi was taken to the Pudimoe Police Station, which was approximately 98 kilometres from her home where her detention lasted around 20 hours. She was not provided with any food or water, or a mattress, and the cell was in an unhygienic state with an out of order toilet. Although she was alone in the cell, Ms Mogapi had no privacy. There were male detainees in a nearby cell who could see her and often insulted and hurled profanities at her.
The High Court ordered the State to pay the sum of ZAR15 000 for Ms Mogapi's unlawful arrest and detention. In making this award, the High Court seemed to follow a previous case in which ZAR15 000 per day of detention was awarded. The SCA, however, disproved of this approach and warned about adopting a mechanical approach. The SCA applied the aforementioned underlying principles and replaced the High Court's order with an order directing the State to pay Ms Mogapi ZAR50 000 in damages.
Khorae v Minister of Police Judgment
Two police officers arrived at Mr Khorae's home and handed documents to him, contending that he contravened an interim harassment order. The applicant in the harassment proceedings was Mr Khorae's late neighbour. Mr Khorae enquired about the status of the assault charge he had filed against his late neighbour. Rather than providing him with an answer, the two officers proceeded to arrest Mr Khorae.
Mr Khorae's partner, children and additional family members witnessed the arrest and he was taken to the Huhudi Police Station. At the Huhudi Police Station, Mr Khorae's rights were not read to him. Instead, he was handed a "Notice of Rights" document, which was also not explained to him.
Subsequently, Mr Khorae was taken to the Pudimoe Police Station, which was 30 kilometres from his home. He was detained at the Pudimoe Police Station for 8 days in a cell with 7 other detainees. The shower and toilet were not in a working condition, he was not provided with a mattress, no medication was provided to him and he was not given access to any reading material. The other detainees coerced him into cleaning the cell and washing the blankets and they also confiscated his meals. Due to lack of transportation and the distance between their home and the Pudimoe Police Station, his partner was unable to visit him.
The Mahikeng High Court remarked that the cell conditions were inhumane. In applying the aforementioned underlying principles, the court ordered the State to pay the sum of ZAR220 000 together with costs on Scale B.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
