Van der Nest NO v Minister of Police

On 11 November 2019, Ms Lend Mogapi was arrested without a warrant at her home in Stella, North West Province, by a SAPS officer acting in the course and scope of his employment. She was arrested publicly, transported in the back of a police van, and detained overnight at Pudimoe police cells under degrading conditions until her release on warning the following day. She was not provided with food or water and endured humiliating and unsanitary detention conditions. Ms Mogapi instituted action against the Minister of Police for unlawful arrest and detention, claiming R500 000 in general damages. The High Court found the arrest and detention unlawful but awarded only R15 000 and made no order as to interest. On appeal to the full court, the court mero motu raised the issue of whether Ms Mogapi had been properly sworn in as a witness, held that she had not, and remitted the matter for a new trial. Ms Mogapi died before the appeal to the Supreme Court of Appeal, and her estate executor was substituted as appellant.

The appeal was upheld with costs, including the costs of two counsel. The order of the full court was set aside and substituted with an order directing the Minister of Police to pay the plaintiff R50 000 in general damages, together with interest at the prescribed rate from the date of the trial court’s judgment to date of payment.

This judgment clarifies the limits of an appellate court’s power to raise issues mero motu, reaffirming that fairness and the audi alteram partem principle are paramount. It provides authoritative guidance on the interpretation of section 39(2) of the Civil Proceedings Evidence Act, emphasising substance over form in the administration of oaths. The case also reinforces the Supreme Court of Appeal’s rejection of mechanical approaches to quantifying damages for unlawful arrest and detention and confirms its power to substitute an award where the trial court has materially misdirected itself.