Minister of Police v Mzingeli and Others

On 13 September 2009, the three respondents (Mzingeli, Ndayi and Xabadiya) were arrested and charged with housebreaking, theft and murder. The first and third respondents were convicted of theft on 17 September 2009 and sentenced to 12 months' imprisonment. After serving this sentence, they remained incarcerated together with the second respondent in respect of the outstanding murder charge. The murder charge was eventually withdrawn on 24 July 2014. The first and third respondents claimed damages for unlawful detention from 14 September 2010 to 24 July 2014, while the second respondent claimed for the period 13 September 2009 to 24 July 2014. The respondents instituted an action for damages for unlawful arrest, detention and malicious prosecution against the Minister of Police. The parties settled liability but not quantum. The court a quo separated liability and quantum in terms of rule 33(4), found the appellant liable, and proceeded to determine quantum by way of a stated case without hearing oral evidence. The stated case contained disputed facts, unsubstantiated allegations of assault, torture, sodomy, and inhumane conditions, but lacked detail and evidence. The court a quo awarded R3,000,000 to the first and third respondents and R4,000,000 to the second respondent.

• Whether it was permissible for the court to determine the quantum of unliquidated damages without hearing oral evidence
• Whether the stated case was properly formulated in accordance with rule 33 of the Uniform Rules of Court
• Whether the stated case contained sufficient agreed facts and details to enable the court to determine the quantum of damages
• Whether the quantum of damages awarded was appropriate

1. The appeal succeeds with no order as to costs. 2. The order of the court a quo is set aside. 3. The matter is remitted to the court a quo for the determination of the quantum of damages.

A stated case in terms of rule 33 of the Uniform Rules of Court must contain adequate agreed facts, not assumptions or disputed facts. A court should decline to determine a special case where the facts are inadequately stated. The determination of quantum of unliquidated damages, particularly damages that are indeterminate by their nature, requires proper assessment by the court based on evidence. Where the quantum of unliquidated damages is disputed and involves allegations requiring proof (such as assault, torture, sodomy and inhumane conditions during detention), it is impermissible for a court to determine quantum without hearing oral evidence, even where liability has been admitted or determined. While a court may draw inferences from facts in a stated case, these inferences must be drawn from satisfactorily and adequately stated facts as would have been proven at trial, not from assumptions made to compensate for inadequate factual pleading.

The court expressed its displeasure at the state of the record which included some 178 pages unnecessarily incorporated into it, and reminded practitioners of previous admonitions by the Supreme Court of Appeal against including unnecessary documents in appeal records, citing Government of the RSA v Maskam Boukontrakteurs, Salviati & Santori v Primesite Outdoor Advertising, and Nkengana v Schnetler. Regarding costs, the court noted that the proper order where the respondents abided by the court's decision, the appeal was unopposed, and both parties conceded during the appeal that the stated case was an incorrect course of action for which they must share equal blame, is that there be no order as to costs.

This case reaffirms the proper requirements and limitations for determining cases by way of a stated case under rule 33 of the Uniform Rules of Court. It emphasizes that a stated case must be based on adequately agreed facts, not assumptions, and that courts should decline to determine a special case where facts are inadequately stated. The judgment reinforces that unliquidated damages, particularly those that are indeterminate in nature (such as damages for unlawful detention involving allegations of assault, torture and inhumane conditions), cannot be properly assessed without oral evidence, even where liability has been admitted or determined. It serves as an important reminder to practitioners about the strict requirements for stated cases and the necessity of proper evidence in quantifying unliquidated damages claims. The case also demonstrates the appellate court's continued displeasure with practitioners including unnecessary documents in appeal records.