Page |1
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
Case Number: 16/13227
REPORTABLE: No
OF INTEREST TO OTHER JUDGES: No
08 May 2023
DATE SIGNATURE
In the matter between
LUNGA MILTON KHANYI
Plaintiff
AND
THE MINISTER OF POLICE Defendant
NUETRAL CITATION: Lunga Milton Khanyi vs The Minister of Police (Case
Number:13227/2016) [2023] ZAGPJHC 434 8 May 2023.
Delivery: The judgment was delivered electronically through the email to the legal
representatives and shall be uploaded on the caselines. The judgment shall be deemed to
be delivered on 08 May 2023.
JUDGMENT
MOLAHLEHI J
Introduction
[1] The plaintiff, Mr Khanyi, instituted action proceedings against the Minister of
Police for his unlawful arrest and detention by members of the South African Police
Page |2
Services (SAPS) on 13 September 2014. He claimed the sum of R600,000, which is
made up of the following heads:
(a) General damages – unlawful arrest and detention = R450,000.00.
(b) General damages – malicious arrest and detention= R150,000.00.
[2] The defendant filed its notice to oppose the claim and a plea denying the
allegation of unlawful arrest and detention of the plaintiff.
[3] The plaintiff's case, as stated above, is that he was arrested by members of
the SAPS on 13 September 2014 around 10h30 in Soweto. At the time of his arrest,
the plaintiff was on his way to catch public transport to travel to Sandton City, where
he would have met with his friends to travel the following morning to Cape Town.
They were travelling to Cape Town to participate in a culinary competition as a
group. At the time the police confronted him the plaintiff had a bag containing his
clothes and other personal items. The police requested to search his bag for which
he did not object but requested that they do it expeditiously as he was in a rush to
Sandton City.
[4] It would appear that the police were offended by the plaintiff’s response
which they regarded as reflecting a negative attitude on his part and thus informed
him that the search would be conducted at the police station. Before putting him at
the back of the van, they informed him that he appeared like someone who smokes
dagga.
[5] The police drove to the Jabulani police, where they detained the plaintiff in
the police cell. According to the plaintiff, there were eleven other people in the cell,
which number increased later to twenty.
[6] There were two witnesses who testified in support of the plaintiff's claim. The
first witness was the plaintiff himself. He testified as follows; after being taken to the
police station, he was placed in a dirty cell and provided with blankets and a sponge
infested with lice. There were no beds in the cell. The toilet was not working properly.
He avoided using it on the first day of the detention. He had no option on the second
day but to use it. There was no basin in the toilet to wash their hands. The plaintiff
Page |3
was taken to the magistrate court on the fourth day of his detention but never
appeared in court. He was released without being told as to what wrong he had
done. The other complaint that the plaintiff has is that consequent to the arrest, his
relationship with his friends, who were supposed to travel with them to Cape Town,
broke down because they blamed him for their failure to attend the competition. The
other consequence of his arrest was that members of the community treated him
with distrust and suspicion, as they regarded him as a criminal.
[7] The plaintiff conceded during cross-examination that the police gave him the
document, notice of his rights after the arrest. He also conceded having signed the
document but contended that he could not read the document properly because he
was confused and thus did not understand the contents thereof.
[8] The second witness who testified in support of the plaintiff's case was his
cousin, Mr Johannes Sithole. He testified that he visited the plaintiff's mother, his
aunt, to attend some family ceremony which took place on that particular day. He
was informed on arrival by the plaintiff's mother that the plaintiff had been arrested.
She gave him R20.00 for taxi fares to visit the plaintiff at the prison.
[9] On arrival at the police station, he inquired as to why the plaintiff was arrested
and was informed that it was in connection with dagga. He testified further that he
and the plaintiff did smoke dagga some time back.
[10] The defendant's case, as indicated earlier, is that the plaintiff's arrest was not
unlawful even though the arrest was effected without a warrant of arrest. The
defendant did not, however, present any evidence to support this contention.
The legal principles
[11] It is common cause that the plaintiff was arrested without a warrant of arrest.
Therefore, the onus to show that the arrest was lawful rested on the police in terms
of section 40 of the Criminal Procedure Act (CPA) 1. Section 40 of the CPA provides
as follows:
1
51 of 1977
Page |4
"(1) A peace officer may, without warrant arrest any person-
(b) whom he reasonably suspects of having committed an offence
referred to in Schedule 1, other than the offence of escaping
from lawful custody."
[12] The jurisdictional facts which the Minister would have to satisfy to succeed in
relying on the provisions of section 40(1) of the CPA is to establish that, at the time
the arrest was effected: (i) the arrestor was a police officer; (ii) the arrestor
entertained a suspicion; (iii) the suspicion was that the suspect was committing or
had committed an offence under a law governing the supply, possession of
conveyance of dependence-producing drugs; and (iv) the suspicion rested on
reasonable grounds.
[13] The requirements of reasonable suspicion in terms of section 40(1) (b) of the
CPA were dealt with in Mabona and Another v Minister of Law and Order and
Others 1988 (2) SA 654 (SE) at 658E-H,2 as follows:
"The test of whether a suspicion is reasonably entertained within the meaning of s
40(1)(b) is objective (S v Nel and Another 1980 (4) SA 28 (E) at 33H). Would a
reasonable man in the second defendant's position and possessed of the same
information have considered that there were good and sufficient grounds for
suspecting that the plaintiffs were guilty of conspiracy to commit robbery or
possession of the stolen property, knowing it to have been stolen? It seems to me
that in evaluating his information, a reasonable man would bear in mind that the
section authorises drastic police action. It authorises an arrest on the strength of
suspicion and without the need to swear out a warrant, i.e. something which
otherwise would be an invasion of private rights and personal liberty. The reasonable
man will therefore analyse and assess the quality of the information at his disposal
critically, and he will not accept it lightly or without checking it where it can be
checked. It is only after an examination of this kind that he will allow himself to
entertain a suspicion which will justify an arrest. This is not to say that the information
at his disposal must be of sufficiently high quality and cogency to engender in him a
conviction that the suspect is in fact, guilty. The section requires suspicion but not a
certainty. However, the suspicion must be based on solid grounds. Otherwise, it will
be flighty or arbitrary and not a reasonable suspicion."
2
1988 (2) SA 654 (SE) at 658E-H
Page |5
[14] As indicated earlier, the police provided no evidence to contradict the
allegations made by the plaintiff. It follows, therefore, that in the absence of evidence
explaining why the arrest was effected without a warrant, and having regard to the
plaintiff’s version, the arrest has to be regarded as unlawful.
[15] The plaintiff's pleaded case is that he suffered damages as a consequence of
the unlawful arrest and detention. He, has a result of the illegal conduct of the police,
suffered damages because he was deprived of his freedom and liberty.
[16] It is trite that the deprivation of liberty is a serious matter which would entitle
the affected person to claim damages. In Rahim and 14 Others v Minister of Home
Affairs,3 the Supreme Court of Appeal held that:
"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 reasonable discretion by the
court and broad general considerations play 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: '
27.1 circumstances under which the deprivation of liability took place;
27.2 the conduct of the defendants; and
27.3 the nature and duration of deprivation …"
[17] The next issue for determination once it has been established that the arrest
was unlawful is that of determining what compensation should be awarded to the
plaintiff for the injury suffered. In other words, the court has to determine a just and
fair compensation to be awarded to the plaintiff for the wrongful arrest.
[18] In Olga v Minister of Safety and Security,4 the court 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
3
2015 [4] SA 433 at paragraph 27.
4
2008 JDRJ582E paragraph 6 (ECD case number 608/207).
Page |6
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.”
[19] As indicated earlier, the plaintiff claims R600,000.00 for damages arising from the
unlawful arrest by the police. The approach to adopt with regard to the assessment of
damages was stated as follows in Minister of Safety v Tyulun: 5
"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 injury with any kind of mathematical
accuracy.”
[20] The authorities are in agreement that 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.6
[21] In the present matter, as stated earlier, the plaintiff was detained from 13
September to 15 September 2014. The seriousness of the unlawful conduct by
members of the SAPS in detaining the plaintiff is aggravated by the fact that he was
arrested in a public place where members of the public observed the incident. He
was thereafter placed in a dirty cell and served with stale food.
5
2009 [5] SA 85 (SCA).
6
Minister of Safety and Security v Seymour2006 (6) SA 320 (SCA) 325 para 17and Rudolph & others
v Minister of Safety and Security & others (380/2008) [2009] ZASCA 39 (31 March 2009) (paras 26-
29).
Page |7
[22] In contending that he was entitled to the relief sought in the particulars of
claim, the plaintiff relied on other comparable cases, which would serve as
guidelines in assessing the reasonableness of the damages claimed. 7 The defendant
argued that if the plaintiff was entitled to compensation, it will only be in the sum of
R80,00.00.
[23] Considering the facts and the circumstances of this case, I am of the view
that a fair and just compensation for the plaintiff is R250,000.00.
Costs
[24] The defendant's Counsel argued that because of the amount claimed, the
plaintiff's case fell within the jurisdiction of the magistrate court and, therefore the
costs to be awarded to the plaintiff, if successful, should be on the magistrate court
scale. The submission made was that the magistrate's court scale as at 27 March
2014 was at R400 000.00.
[25] In my view, even if the claim fell within the jurisdiction of the magistrate court
scale, this is a matter where the circumstances involving the unlawful conduct of the
police are of such a nature that the plaintiff was justified in approaching the High
Court. The matter involves a breach of the fundamental rights of the plaintiff and the
police failing to account as to why the arrest was effected and secondly as to why
they detained the plaintiff for the period they did when it was not necessary to bring
him before the court. They failed to also provide any justification as why they could
not have summoned him to report at the police station.
Order
[26] In the circumstances, the following order is made:
1 The arrest and detention of the plaintiff without a warrant of arrest was
unlawful.
7
In Van der Laarse v Minister of Police and Another (31378/2012) [2013] for instance the court
awarded R 280 000.00 to the plaintiff for three nights in jail and in Keitumetsi Letlalo v Minister of
Police, (28575/12) [2014] ZAGPJHC 72 (28 March 2014) the plaintiff, a hairdresser, photographed
with his cell phone, when the police officers assaulted two persons. The police demanded the phone,
when he refused he was arrested and detained for twenty four hours. He was kept in appalling
circumstances. He was awarded R110 000-00.
Page |8
2 The defendant is ordered to pay the plaintiff damages in the sum of R250
000.00.
3 The defendant shall pay the prescribed interest calculated from the date of the
issue of the summons.
E MOLAHLEHI
Judge of the High Court,
Gauteng Local Division,
Johannesburg
Appearances:
Counsel for the applicant: Adv. Z Buthelezi
Page |9
Instructed by: Madeleine Gowrie Attorneys
Counsel for the defendant: Adv. DF Makhubele
Instructed by: The State Attorney
Hearing date: 16 January 2023
Delivery date: 8 May 2023
