Masiteng v Minister of Police

On 29 September 2019, Mr Ntjanyana Daniel Masiteng was unlawfully arrested without a warrant at approximately 22h00 in Warden, Free State Province, on an alleged charge of assault with intent to do grievous bodily harm. The arrest was effected by members of SAPS in front of his wife and children. He was detained in a Warden police cell for 42 hours until 1 October 2019 at 16h00, when he was released without appearing in court after the prosecutor declined to prosecute. During detention, he shared a small, congested cell with many inmates in inhumane conditions - the toilet facilities were not working, there was water on the floor, and he had to share a blanket with other inmates. He also spent approximately 8 hours in a small, overcrowded court holding cell. At the time of arrest, he was 42 years old and working as a shepherd on a farm. The applicant instituted an action on 9 March 2020 in the Regional Court, Bethlehem, claiming R210 000 for deprivation of freedom, contumelia, discomfort, emotional stress and embarrassment. The respondent conceded liability and the matter proceeded on quantum only. The regional court awarded R30 000 plus costs. The applicant appealed to the High Court, which dismissed the appeal with costs on 12 May 2023. The applicant then petitioned the Supreme Court of Appeal for leave to appeal, which was dismissed on 10 August 2023. He then applied to the President of the Supreme Court of Appeal to reconsider the application for leave to appeal.

• Whether the damages of R30 000 awarded for unlawful arrest and detention were fair and reasonable
• Whether the regional court exercised its discretion judicially in awarding damages
• Whether exceptional circumstances existed to warrant reconsideration of the refused leave to appeal under s 17(2)(f) of the Superior Courts Act 10 of 2013
• Whether the high court erred in awarding costs against the applicant
• Whether the Biowatch principle regarding costs applied to this delictual claim for unlawful arrest and detention

The application for leave to appeal was dismissed with costs. The Court declined to award costs for two counsel as the matter was not complex.

1. In assessing damages for unlawful arrest and detention, courts must consider all relevant factors beyond mere duration of detention, including circumstances of arrest, nature of detention conditions, status of plaintiff, and awards in comparable cases, exercising discretion fairly ex aequo et bono. 2. An appeal court should be slow to interfere with a trial court's discretionary assessment of damages for deprivation of liberty unless there are specific reasons demonstrating the court failed to exercise its discretion judicially. 3. Under s 17(2)(f) of the Superior Courts Act 10 of 2013, exceptional circumstances must be demonstrated to justify reconsideration of a refused leave to appeal; the provision is not intended to afford disappointed litigants further attempts at relief already refused. 4. The Biowatch costs principle does not apply to delictual claims for unlawful arrest and detention, even where constitutional rights are infringed, as such claims are protected under actio iniuriarum and are delictual in nature, not direct constitutional claims against organs of state.

The Court observed that the primary purpose of damages for unlawful arrest and detention is to offer solatium for injured feelings, not to enrich the aggrieved party, while ensuring awards reflect the importance of the right to personal liberty and the seriousness with which arbitrary deprivation of liberty is viewed in South African law. The Court noted that it is impossible to determine such awards with mathematical accuracy, and slavishly following previous awards can prove treacherous. The Court also made the general observation that refusing leave to appeal will not result in a denial of justice where an application merely rehearses arguments already considered and rejected, unless it is strongly arguable that justice will be denied unless an appeal can be pursued. The Court commented that the criticism that the high court misdirected itself in finding the award appropriate based on the applicant's status and social standing could not be sustained, implicitly rejecting any suggestion that poor people should be compensated less simply because they are poor.

This case reaffirms the principles governing assessment of damages for unlawful arrest and detention in South African law, emphasizing the discretionary nature of such awards and the high threshold required for interference by appellate courts. It clarifies that comparable cases serve only as guides and each case must be assessed on its own facts. The judgment also clarifies the limited scope of the Biowatch costs principle, confirming it does not apply to delictual claims for unlawful arrest and detention, even where constitutional rights to liberty are infringed, as these are protected through the actio iniuriarum rather than direct constitutional claims. The case demonstrates the stringent test for establishing 'exceptional circumstances' under s 17(2)(f) of the Superior Courts Act, emphasizing this provision is not intended to afford disappointed litigants further attempts at relief already refused.