The Supreme Court of Appeal (SCA) has upheld an appeal that challenges a prior modest compensation awarded for the unlawful arrest and detention of Lend Mogapi.
The case initially arose following Mogapi's arrest on 11 November 2019 by one Warrant Officer Kgananyane, while she was at her home in Stella, North West with her partner, identified in the judgment only as Mr Maruping. Arrested without a warrant under the pretext of possessing suspected stolen clothing items, Mogapi endured humiliation as her neighbours looked on.
She was put in the back of the police van in which there was a rifle. The court heard that police drove at high speed through potholes and in the darkness to the police station. She experienced pain in her right leg due to an old injury she had sustained. She was frightened. The conditions of her detention were equally troubling: she was held without food or water for over 24 hours in unsanitary conditions and subjected to degrading treatment from male detainees, who hurled insults at her in the holding cells.
The police gave no explanation why she had been arrested in public. They did not explain why they did not use any of the other methods provided for in Section 38 of the Criminal Procedure Act 51 of 1997 to secure her attendance at court, and why they had to resort to the following extreme measures: arresting her publicly, transporting her in the back of a police vehicle, detaining her for a day and a half in a police cell, approximately 98.7km away from her home.
Following her ordeal, Mogapi issued summons in the High Court for general damages suffered because of the unlawful arrest and detention, in the amount of R500 000, plus interest. The High Court found that the arrest and detention of Mogapi were unlawful. On 30 May 2022, it granted an order against the Minister of Police in the amount of R15 000, but did not order interest to be paid.
Aggrieved by this decision, Mogapi applied for leave to appeal to the full court. On 20 January 2023, leave to appeal the correctness of the amount and the failure to grant interest on the amount awarded was granted. Mogapi regrettably died before the hearing of the appeal and was substituted by the executor of her estate, Trisce Jane van der Nest.
Inadequate assessment of damages
On appeal, the Supreme Court scrutinised procedural missteps that culminated in the High Court disregarding key aspects of the case, including inadequate assessment of damages and flawed witness testimony.
Citing concerns overdue process, the SCA ruled that the High Court's findings were fundamentally flawed, especially when it raised issues regarding the administration of oaths not presented during previous hearings. The defendant's liability was not in question, yet the damning circumstances surrounding Mogapi's experience necessitated a reassessment of punitive measures against the Minister of Police.
Considering this, the SCA ordered a significant increase in the damages awarded, replacing the previous figure of R15,000 with R50,000. This new figure is in line with standard compensatory practices for unlawful detentions, reflecting not only economic consideration but also the emotional and psychological trauma endured by victims of such infringements.
The judgment further stipulates that the Minister of Police is also to pay interest on this amount from the date of the trial court's judgment until the amount is settled in full, aligning the order with Section 2 of the Prescribed Rate of Interest Act 55 of 1975.
#Conviction
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
