IN THE HIGH COURT
OF LESOTHO

HELD AT MASERU CIV/T/133/2000

In the matter between:-

KHOTSO KHECHANE 1^st PLAINTIFF

SELLO KHECHANE 2^nd
PLAINTIFF

AND

COMMISSIONER OF POLICE 1^st
DEFENDANT

COMMANDER OF L.D.F. 2^nd DEFENDANT

ATTORNEY GENERAL 3^rd DEFENDANT

SUBMISSIONS ON BEHALF OF PLAINTIFFS

INTRODUCTION

-1-

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, 3^rd 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."

-4-

COURT'S DUTY TO AWARD A SPECIFIC AMOUNT OF
DAMAGES-

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

MOUNTON V. DIE MYNWEKERSUNIE 1977 (1) SA 119 (A)

-5-

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

-6-THE EVIDENCE

The following facts are common cause:-

4. 
   That Counter Crime Unit (CCU) is made up of members of
   the
   Lesotho Mounted Police Service and members of the
   Lesotho
   Defence Force.

   
   

5. 
   That plaintiffs were arrested by members of CCU on the
   9^th
   October, 1999 and detained in the cells at the
   Police
   Headquarters, Maseru.

   
   

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

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

9^th October, 1999 to 11^th
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 11^th

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

Page
4

-7-DEFENDANTS' DEFENCE

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.

-8-THE
LAW ON THE DRAWING OF INFERENCES:-

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."

-9-

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 9^th 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.

-10-OUANTUM
OF DAMAGES

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).

4. 
   Nature and effect of assault
   (p. 506).

   
   

5. 
   Award to express disapproval
   of the nature and effect
   of treatment (p. 507). and P504
   

   
   

6. 
   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.

DATED AT MASERU THIS 24^th
DAY OF SEPTEMBER, 2001

ADV. P.T. NTESO

PLAINTIFFS' COUNSEL EH.
PHOOFOLO & CO.

NKHATHO BUILDING MASERU

Law
of Damages through the Cases

P J VISSER

and

^{J M POTGIETER}

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

Juta & Co, Ltd

CAPE
TOWN WETTON JOHANNESBURG

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.

6 MALICIOUS PROSECUTION, WRONGFUL ARREST AND

DETENTION, ASSAULT

[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,

50+

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

506

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

Assault

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