Khecahne and Another v Commissioner of Police and Others (CIV/T/133/2000)

Case No: 
Media Neutral Citation: 
[2001] LSHC 92
Judgment Date: 
24 September, 2001




In the matter between:-










This is a matter in which plaintiffs claim damages against defendants for wrongful or unlawful acts allegedly committed against plaintiffs by defendants' subordinates.

-3- This matter is opposed by the defendants.

Page 2

The definition of "damages" given in Halsbury in LAWS OF ENGLAND, 3rd ed, Vol II Para 383, and dicta to the same effect in FOUND BISHARH JAB HOUR VS. STATE OF ISRAEL, (1954) 1 ALL E.R. 145 at p. 150, and HALL BROTHERS S.S.CO., LTD V. YOUNG 1939 (1) KB 748 at p. 765 was defined as follows:-

"damages may be defined as the pecuniary compensation which the law awards to a person for the injury he has sustained by reason of the act or default of another, whether such act or default is a breach of contract or a torts; or, put more shortly, damages are the recompense given by process of law to a person for wrong that another has done to him."



It is submitted that the court has a duty to award plaintiffs a specific amount of damages.



This Honourable Court is also referred to the well-known dictum in JANSEN V. PIENAAR 1881 SC 276, where it was said:- "The summons set out an infringement of a right and alleges specific damages. But the plaintiff proved a wrong - as soon as he proved the enticing away, he was entitled to some damages though he did not prove one thing of actual damages."

Page 3


The following facts are common cause:-

  1. That Counter Crime Unit (CCU) is made up of members of the
    Lesotho Mounted Police Service and members of the Lesotho
    Defence Force.

  2. That plaintiffs were arrested by members of CCU on the 9th
    October, 1999 and detained in the cells at the Police
    Headquarters, Maseru.

© That a search without a warrant was conducted by CCU. at the 2nd plaintiffs home on the same day.

(d) That Plaintiffs were detained in police custody at P.H.Q. from the

9th October, 1999 to 11th October, 1999 and that while in custody plaintiffs were interrogated.

(e) That when the members of C.C.U. effected the arrest, search,

detention and conducted interrogations they were acting during the course of their employment and within the scope of their duties.

(f) That when plaintiffs were released from the cells on the 11th

October, 1999 they consulted a doctor at St. Joseph Hospital, Roma and they were accordingly examined and found to have some injuries.

Page 4


The defendant's defence is a bare denial e.g. that the police or members of C.C.U. did not assault, torture or cause any injuries whatsoever on the plaintiffs.


The law as regards the drawing of inferences is to be found in the much quoted South African case of R V. BLOM 1939 AD 188 at 202/3 and is expressed as follows:

"(1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.

"(2) The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct."


It is submitted that this Honourable Court should draw only one inescapable inference that the injuries that plaintiffs sustained were caused by nobody but the police or members of C.C.U. while plaintiffs were in custody. This Honourable Court should do so taking into account the following factors:-

(i) Plaintiffs' father and 2nd plaintiff's wife testified

Page 5

that when the plaintiffs were arrested on the 9th October, 1999 they did not have any injuries.

(ii) Defence witnesses agreed with one another that before Plaintiffs were locked up they were thoroughly searched to make sure that they did not have any weapons or dangerous items with them.


Plaintiffs claim the amount of M50,000-00 for unlawful or wrongful arrest, detention, pain and suffering.

The following factors are taken into account when fixing the quantum of damages:-

(a) Status, position and reputation of plaintiffs (p. 506 of
Attached authorities).

(b) Standing of plaintiffs and other factors (p. 506).
© Humiliation and malice (p. 506).

  1. Nature and effect of assault (p. 506).

  2. Award to express disapproval of the nature and effect
    of treatment (p. 507). and P504

  3. Nature of suffering (p. 508).

Page 6

li­ lt is therefore submitted that regard being had to the nature of treatment plaintiffs received in the hands of the police and the fact that an attempt was made to murder the plaintiffs by suffocating them with a tube the amount of M50,000-00 is not even enough to compensate plaintiffs adequately. We therefore submit that may it please this Honourable Court an award of M50,000-00 should be made in favour of the plaintiffs.





Law of Damages through the Cases




Blur LLM (RAU) LLM (Harvard) LLD (Unisa) 1993

Juta & Co, Ltd


Ramakulukusa v Commander Venda National Force[164] 503

Mr. Davidson, who appeared for the defendants conceded, correctly in my view, that the plaintiff had suffered an injuria and that the only issue was the guantum of damages which should be awarded. In their plea the defendants, whilst denying liability, tendered the plaintiff the sum of £50 together with costs on the appropriate magistrate's court scale up to the date of the tender.

It is necessary, however, before fixing the sum to be awarded, to determine the precise nature of the injury inflicted upon the plaintiff. The mere unauthorised nature of injury publication of photographs does not necessarily in itself entitle the aggrieved party to damages, and the question whether such publications constitute an aggression upon a person's dignitas will depend upon the circumstances of each case, the factors to be considered nature [372] of the photograph, the personality of the plaintiff, his station in life, his previous habits with reference to publicity and (he like. (O'Keeffe v.Argus Printing and Publishing Co. Ltd. and Another, 1954 (3) S.A. 244 (C).) The remedy should be given only when the words or conduct complained of involve an element of degradation, insult or contumelia. . . .

[The court examined the evidence and continued:]

The plaintiff was, as I have said, a schoolteacher and he is presently studying for the degree of Bachelor of Arts. He stated that he has never sought publicity of any kind and that he is well known in the neighbourhood in which he lives. It is in all these circumstances [373] that I have come to the conclusion that the tender of £50 made in the plea is clearly inadequate. There was in the present case an invasion of the plaintiff's privacy which, because of the article to which the photographs formed a background, constituted an aggression upon his dignitas, and this invasion was deliberately designed without any regard to the feelings of deliberate conduct the plaintiff. Mr. Davidson conceded that in cases such as the present the damages are to some extent punitive. I have also to take into account the fact that the punitive damages publication was, according to the evidence, widely circulated throughout the whole country. In my view the justice of the case will be met by an award of the sum of of £150 as damages.

Note: See Visser & Potgieter Damages 423; Skadevergoeding 435; Neethling Persoonlikheidsreg 53, 225, 240, 241, 256, 257, who points out (that contumelia, in the sense of insult or degradation, is not a requirement for every form of infringement of personality interest, Van der Merwe & Olivier Onregmatige Daad 450, 459.



[164] Ramakulukusha v Commander, Venda National Force

1989 (2) SA 813 (V)

The plaintiff was assaulted by members of the Venda police, during the course of which assault he was struck with clenched fists, thrown against a wall, submerged in a bath of water with a soapy bag pulled over his head. The assault was particularly reprehensible in that it was directed at entrapping the plaintiff in a confession of his part in a murder in which, on the evidence available to the police, he was not invoked. The assault took place over a number of hours and was particularly vicious, leaving the plaintiff with numerous contusions, fractures of the fingers of the left hand, the mallcolus of the left leg and the vertebrae of the neck, as well as a laceration of the toe. The assault caused the plaintiff to suffer a great deal of pain, discomfort,


Law of Damages through the Cases

distress and anxiety because of his submersion and (he inhalation of soapy fluid. The court further held chat, when the police hold prisoners in detention and then resort to the kind of treatment which was meted out to the plaintiff, causing considerable injury, indignity, discomfort, fear and anxiety, the court should make an award which in money terms expresses its disapproval of the seriousness, brutality and humiliating effect of such treatment-

The court remarked that, in its researches of the case law on the quantum of damages in cases involving the infringement of personality rights it had noted with some surprise the comparatively low and sometimes almost insignificant awards made in southern African courts for infringement of personal safety, dignity, honour, self-esteem and reputation. The court commented that it was of the opinion that courts are charged with the task, nay the duty, of upholding the liberty, safety and dignity of the individual, especially in group-orientated societies where there appears to be an almost imperceptible but inexorable decline in individual standards and values. (Of, however, Argus Printing & Publishing Co Ltd v Inkatha Freedom Party 1992 (3). SA 579 (A) at 590 where the Appellate Division remarked that an action for defamation has been seen by our Courts 'as the method whereby a plaintiff vindicates his reputation, and not as a road to riches'.) It was relevant, in assessing damages in the present case, that the plaintiff, a man of good standing in the whole of Venda and beyond the borders of Venda, was the victim of an unwarranted infringement of his personal liberty, safety, freedom, dignity and enterprise. The court made, inter alia, the following awards: for wrongful arrest—R15 000; for unlawful detention-R20 000; for assault—R15 000;for malicious prosecution—R30 000.

Van der Spuy AJ: [After dealing extensively with (he evidence and having recorded its findings of fact (817-47), the court continued:] [847]

10.0 The quantum of damages

When researching the case law on the quantum of damages, I took note with some lo w awards surprise of the comparatively low and sometimes almost insignificant awards made in Southern African Courts for infringements of personal safety, dignify, honour, self-esteem and reputation. It is my respectful opinion that courts are charged with the task, nay the duty, of upholding the liberty, safety and dignity of the individual, especially in group-orientated societies where there appears to be an almost imperceptible but inexorable decline in individual standards and values. In this case plaintiff a man of good standing in the whole of Venda and beyond the borders of Venda, was the victim of an unwarranted infringement of his personal liberty, safety, freedom, dignity and enterprise. The facts relating to the invasion of those rights have been set out in my findings in paras 8.0 and 9.0 above. In the light of those remarks I must now consider the various cases quoted to me by counsel on both sides on the quantum of damages which I should award to plaintiff.

10.1 Wrongful arrest

case law In the matter of Areff Minister van Polisie 1977 (2) SA 900 (A) the facts were that plaintiff was a 41 year-old director of companies and a businessman. He was humiliated by an arrest and the taking of fingerprints. As against this there was no proof of any vexatious or malicious conduct towards him. He was detained for only two hours and there was no publicity attached to his arrest. The learned Judge awarded him R1 000 as a fair and reasonable measure of compensation (see at 915A). For reasons later set out that award would today be in the region of R2 700. But the facts there are clearly distinguishable from the facts in the present case. In the matter of May v Union Government 1954 (3) SA 120 (N) plaintiff was awarded a El 000 (ie R2 000 on a straight conversion) for wrongful arrest and detention lasting a lew hours the matter having received extensive publicity. It

Ramakhulukusha v Commander, Venda National Force[164] 505

was submitted by defendant's counsel that that case was more serious than the present one, since the plaintiff was a prominent advocate. It must also be taken into account, so it is submitted, that both the arrest and detention were compensated by the judge. No suggestion was made what the comparable award would have been today for advocate May. Having regard to the accepted devaluation of currency, one would expect that that award would over a period 33 devaluation of currency years have escalated on the basis stated below at least 4 times, which would make the award in the neighbourhood of R35 000-R40 000 at the present time in respect of the arrest and the detention taken together. In Minister van Polisie en 'n Ander v Gamble en 'n Ander 1979 (4) SA 759 (A) R1 000 was granted to plaintiff for wrongful

arrest and detention for six hours. There was in that case no evidence of maltreatment by the police. A comparable [848]award would at present have been about R2 500. In Minister Wet Orde Van den Heever 1982 (4) SA 16 (C), plaintiff was arrested and detained for 4½ days. The plaintiff was a man with a 'reasonable standing in his community' and he was awarded R1 500 for wrongful arrest and detention. On the case law quoted above, defendant's counsel submits that, on a reasonable comparison with the various cases, to suggest that plaintiff should be awarded the sum of between R30 000 and R50 000, as was suggested by plaintiff's counsel, Mr Luitingh, is completely wrong. As to escalation of awards, reference is made to the 1978 case of Mostert v Shield escalation of awards Insurance Co Ltd II Corbett and Buchanan The Quantum of Damages 751 (E) where Smalberger J states at 756:

'Thus the present value today of the award in Geldenhuys case, where R25 000 was awarded in 1962, would be approximately R67 000. That in Naidoo's case, a case substantially similar to the present, where RI5 000 was awarded in 1968, would be approximately R34 000. In Madolo's case, where R10 000 was awarded in 1969, it would be approximately R22 000 and in Gonya'j case, where R25 000 was awarded in 1972, :he amount would be about R48 000. These examples are illustrative of the remarkable extern to which the value of money has diminished over the years.'

I accept for purposes of my judgment the remarks of Smalberger J and I in fact apply a doubling of the cost of living (which is the reverse of a halving of the value doubling of cost of of currency) about every six to seven years. living about every 6 to 7 years

I agree that the escalation proposed by plaintiff's counsel is unreal and excessive and that one is mindful of awarding, on the facts of May's case, about R35 000-R40 000 in 1987 for both arrest and detention and not R30 000-R50 000 for arrest alone as is submitted by Mr Luitingh. With reference to the matter of AA (Onderlinge Assuransie Assosiasie Bpk v Sodams 1980 (3) SA 134- (A) at 141C, defendant's counsel submitted

'that very little value can be attached to an award which is made during 1954. This can certainly not be done without proper evidence mm to economic circumstances in 1987.'

But in the case of Sodoms all that Botha AJA decided, at the passage referred to, is that he was of the opinion that the learned trial Judge's approach to general damages was subject to criticism on the one hand in that he took an award for (he year 1974 for a comparable injury and then extrapolated it on an arithmetical basis which could not be justified and on the other hand that he assumed the figures of the consumer price index to be correct In the unreported judgment of Margo J in the matter of Newman v Prinsloo and Another (14 November 1973—WLD) Newman, a prominent businessman of Johannesburg, who was arrested on 30 September 1971 'but released on the same day, on a charge of contravening the Companies Act, was awarded 'substantial damages' in the sum of R6 000 for arrest (see Newman's case reported in 1975 (1) SA 481 (A) at 491C—although described as 'substantial' the damages were not dealt with on appeal). A comparable award in 1987 would be in the neighbourhood of R30 000. I am not guided solely by the cases quoted above, save by the approach of Margo J


Law of Damages through the Cases

status,positions and in Newmans case supra, and having regard to the status of plaintiff, his position in reputation of plaintiff society, his reputation in Venda and beyond and all other relevant circumstances [849] outlined by me, 1 find that the sum of R15 000 is a sum which is adequate and reasonable in respect of plaintiff's claim for wrongful arrest which was in any event totally unnecessary. (See Newmans case, on appeal 1975 (1) SA at 501A-B.)

10.9 Unlawful detention

In this regard counsel for the defence quoted the single case Donono v Minister of Prisons 1973 (4) SA 259 (C), in which an amount of R500 was awarded for wrongful detention for four days. It was submitted that I should take into account the standing standing of plaintiff and of plaintiff, conditions at the time of his detention and the circumstances surrounding other factors his detention. It was submitted that in the light of the fact that plaintiff was a prominent businessman and he was arrested on a most serious charge and the publicity was given to the arrest and to the detention, 'a relatively big amount should be awarded to plaintiff if he were successful'. It was then suggested that R2 500 would be appropriate under the circumstances. I find that wholly unacceptable for the detention of a man of the standing of plaintiff in the particular circumstances outlined above. In addition he was subjected to the humiliation of being escorted by the police to close his businesses and whilst I specifically exercise caution against compensating him for any possible loss of custom in respect of which claims 6 and 7 were humiliation and malice abandoned, I nevertheless take account of the humiliation to which he was subjected by the police and the malice that their conduct generally evinced towards him. In addition bail was resisted on frivolous and vexatious grounds and based on false evidence. I'must add that, as I remarked with reference to the wrongful arrest, the detention was totally unnecessary vindictive and malicious (see Wessels JA's remarks in the Newman case on appeal at 1975 (I) SA at 501A-B). Having regard to all the circumstances of his detention, I award damages under this head in the sum of R20 000. 10.3


It has been submitted that it is the duty of the Court to assess the damages of plaintiff as best it can, provided the Court was satisfied that all the available evidence was put before it. It was further submitted that the damages will be affected by the fact that the plaintiff's version was exaggerated and not, as Dr De Villiers found, based entirely on realities with regard to the number of times that plaintiff was immersed in the water and the number of times he claimed he had lost consciousness. He would have been killed, so it was submitted, if his version was the truth. I have made allowances for this, but yet I find that the assault was particularly reprehensible in that it was directed to entrap plaintiff in a confession of his part in a murder which, on the evidence available to the police, he was not nature and effect of involved in and, if involved therein, then only indirectly. The assault took place assault over a number of hours and it was particularly vicious, leaving the plaintiff with numerous contusions as well as with fractures of the fingers of the left hand, the malleolus of the left leg, the vertebrae of the neck and a laceration of the toe. He suffered a great deal of pain, discomfort, distress and anxiety because of his comparison with other submersion and the inhalation of the soapy fluid. It is difficult to compare this cases difficult matter with any of the other cases which have been cited to me. Reference was [850] made to the case, decided in 1984, of Naidu v Gengiah and Another III Corbett and Buchanan 472 (D). That case was concerned with plaintiff who had sustained a bullet wound causing him multiple injury, hospitalisation for three weeks, permanent weakness in the right leg and extreme pain in the back and so forth for which the sum of R10 000 was awarded. A comparable award today would be in the neighbourhood of R15 000. In the case of Krugell v Shield Versekeringmaatskappy Bpk [21] Van Dijkhorst J awarded the plaintiff R15 000 in circumstances where he suffered organic brain injury, extremely adverse change of personality, a smashed eye socket, a jaw-bone which had to be wired as his teeth were damaged to such an extent that they did not knit properly. There was also a neck injury and a Ramakulukusha v Commander, Venda National force [164] 507

fracture of the right ankle with sepsis. There was also loss of smell and taste. The award there clearly was made for pain, suffering, loss of amenities, disablement and disfigurement. A comparable award today would be in the neighbourhood of R25 000. In the case of Dladla v Minister of Police 1973 (2) SA 714 (W), Colman J found that the plaintiff had received the pain of two or three severe punches, or similar blows, to his chest and abdomen and the indignity, humiliation, discomfort and considerable fear attaching to the treatment described and also muscular pain in the arms and other parrs of his body which was of a few days duration and an aggravation of a very small hernia which he already had. Colman J held at 720 that if plaintiff suffered any more as a consequence of the assault he had not

succeeded in proving it. On those facts an award of R750 was made. Based on Dladla's case, defendant's counsel submitted that although the award was low, a comparable award in 1987 would be of the order of R3 000 with which escalation I agree. As against that, plaintiff's counsel submitted that the assault here was at least ten times worse than in Dladla's case and that plaintiff would have been awarded R7 500 in 1973 and therefore should be awarded R30 000 in 1987. I consider that that is a sanguine submission and that an award of R30 000 would be unduly high. Plaintiff was inclined to exaggerate the effects of the continual immersion in the bath, not unnaturally in view of the anxiety and fear to which he was subjected. Yet I am of opinion that, when the police are holding prisoners in, detention and then resort to the kind of treatment which was meted out to plaintiff, causing considerable injury, indignity, discomfort, fear and anxiety, the Court must make an award which in money terms expresses its disapproval of the award to express seriousness, brutality and the humiliating effect of such treatment; In the case of disapproval of nature Manamela v Minister of Justice and Others 1960 (2) SA 395 (A) appellant had been and effect of treatment assaulted by the police in custody and was subjected to considerable violence resulting in numerous bruises and abrasions, a dislocation of his finger and a perforated eardrum. The Appellate Division increased an award from £50 in the Court o quo to two awards of £200 plus £ 300 = £500 on appeal. In that case Schreiner JA indicated at 404E-F his strong disapproval of the conduct of the police. In the 27 years that have passed since the decision in Manamela's case, the award would have increased from R1 000 to about R25 000. Having considered all the facts surrounding the torturing of plaintiff, my award is the sum of R15 000.

[851] 10.4 Malicious prosecution

In this regard I was referred to the case of Law and Others Kin Another 1966 (3) SA 480 (W), where the plaintiffs were tried in the Kempton Park magistrate's court on a 'trumped up' charge of robbery with aggravating circumstances After a two-day trial, the first and second plaintiffs were acquitted. The plaintiffs were arrested and incarcerated for approximately one day and then released on bail. The charges had been hanging over the accuseds' heads for four months. An award of R1 000 was granted in favour of the first and second plaintiffs, and third plaintiff was awarded the sum of R800. It is submitted that it is difficult to convert the award in 1966 to an appropriate amount in 1987, and it was suggested that the sum of R1 000 in 1966 could be equated to an amount of about R2 500 today, although, according to Mostert's case supra, the increase from 1966 to 1987 would more likely be from R1 000 to R8 000 or even R10 000. However, counsel for defendant then submitted that, taking into account that the charge against

plaintiff was one for ritual murder for which he could have been sentenced to seriousness of charge and death, this must be one of the most serious cases of malicious prosecution on possible sentence record. I agree with that. Even the case of Newman (supra), where the charge of contravening s 70oct of the Companies Act was withdrawn on 3 November 1971 (the arrest having taken place on 30 September 1971) and in which R2 000 was awarded for malicious prosecution (present value about R7 500), does not bear comparison with the present case where the charge of ritual murder was not charge not withdrawn withdrawn but proceeded with until plaintiff was acquitted at the end of the State case on 19 May 1983. I must also take into account here that plaintiff has the right to be compensated for personal insult, indignity, humiliation and the inevitable nature of suffering defamation which was and is suffered as a result of the prosecution in the course of which he was characterised as a 'mavia vhatu' to the people of the Republic of Venda and beyond. As to the injurious aspects of an action based on malicious prosecution, sec Thompson's case supra at 374. I may just add that, although acquitted by Strydom J, plaintiff has to bear the stigma of being a 'mavia vhatu' or a 'killer of human beings' which he may never be able to live down —and no award of money can truly compensate him for that. In ail the circumstances my award of damages for malicious prosecution—including the defamatory aspects (hereof— is the sum of R30 000.

10.5 Defamation

For the reasons I have already advanced I make no separate order on this claim. This claim is intimately interconnected with the above claim, ie claim 4, and the damages awarded take into account the defamatory aspects of the proceedings brought against plaintiff.

Note: See Visser & Potgieter Damages 423, 426; Skadevergoedingsreg 435, 438; Neethling, Potgieter & Visser Law of Delict 289; .Deliktereg 255, 257, 326, 341; Neethling Persoonlikheidsreg 61, 82, 108, 112, 117, 118, 125, 137, 161, 171, 172, 179, 182, 183, 184, 185.

[165] Stapelberg v Afdelingsraad van die Kaap 1988 (4) SA 875 (C)

Plaintiff instituted action for damages for unlawful arrest and detention against the defendant as the employer of a certain traffic inspector. The only issue in,dispute was that of quantum. Plaintiff was an attorney on honeymoon in Cape Town. While he was helping an old man place notices under car windscreen wipers, he was addressed by the above-mentioned traffic inspector in an improper manner. Before plaintiff could respond the traffic inspector hit him on the chest. Plaintiff reacted angrily and was then taken to a police station where he was insulted, belittled and maligned by the inspector. Plaintiff was released after three hours on bail of R100. He was never informed of any charges that had been laid against him and his wife of one day was not permitted to speak to him. The court held that the unlawful actions of the traffic inspector caused the plaintiff to suffer extreme humiliation; considerable concern about his wife and caused him to cry on three occasions, once in front of his wife. Plaintiff was also very upset that the incident had occurred on the first day of his honeymoon and would perhaps never forget it. In the circumstances, an amount of R10 000 was considered an appropriate award.

Foxcroft J: [877] Voor my het eiser getuig en dit het gou te voorskyn gekom dat die enigste geskil die quantum van skade gaan wees. Mnr Van der Berg, [wat] namens verweerder verskyn het, het eiser se getuienis kwalik aangeval. Die kruisondervraging was daarop gerig om te bewys dat eiser inderdaad die hele voorval kon vermy het, indien hy net aangestap het toe die verkeersbeampte geskree het 'What do you think you're doing?' of'Wat doen jy?' (die getuie kon nie onthou of die verkeersbeampte Engels of Afrikaans gebruik het nie) en 'Gee hier daardie goed'.

Laasgenoemde woorde is deur eiser in 'n 'Grondleggende Verklaring' gebesig (bew 'A') en hy het in ay getuienis erken dat Louw heel waarskynlik dit sou gesê