Van der Nest NO v Minister of Police

On 11 November 2019 at 18:00, Ms Lend Mogapi was arrested without a warrant at her home in Stella, North West province by Warrant Officer Kgananyane, acting in the course and scope of his employment. She was arrested publicly, in front of neighbours, for suspected possession of stolen property. She was transported in a police van with a rifle at high speed through potholes and darkness to Pudimoe police station approximately 98.7 km from her home. She was detained in filthy police cells until 12 November 2019 at 15:00 (approximately 20 hours), where she received no food or water, had no mattress, dirty blankets, a non-functioning toilet, no privacy, and was subjected to profanities from male detainees in nearby cells. She was released on warning. She sued the Minister of Police for general damages of R500,000 for unlawful arrest and detention. The trial court (Snyman J) found the arrest and detention unlawful and awarded R15,000 without interest. Ms Mogapi appealed the quantum and lack of interest. The full court, mero motu, raised an issue about whether Ms Mogapi was properly sworn in at trial, found she was not properly sworn in terms of s 39(2) of the Civil Proceedings Evidence Act 25 of 1965, set aside the entire trial judgment, and ordered a retrial on merits and quantum. Ms Mogapi passed away before this appeal and was substituted by the Executor of her estate.

• Whether the full court could raise mero motu an issue not raised by the parties regarding the swearing-in of a witness
• Whether the full court correctly interpreted s 39(2) of the Civil Proceedings Evidence Act 25 of 1965 regarding the proper administration of an oath
• Whether the full court breached Ms Mogapi's right to be heard (audi alteram partem) by deciding the swearing-in issue without allowing proper response
• Whether the trial court exercised its discretion judicially in awarding R15,000 damages for unlawful arrest and detention
• Whether an appellate court can substitute a trial court's award of damages
• Whether interest should be awarded on the damages from the date of judgment

The appeal was upheld with costs, including costs of two counsel. Paragraph (i) of the full court's order was set aside and substituted with an order that the defendant (Minister of Police) pay the plaintiff R50,000 plus interest at the prescribed rate per annum from the date of the trial court's judgment to date of payment.

The binding legal principles established are: (1) An appellate court may raise a legal issue mero motu when necessary to dispose of a matter and in the interests of justice, but must afford parties a fair opportunity to address the issue before deciding it; failure to do so violates the constitutional right to a fair hearing under s 34 of the Constitution. (2) Section 39(2) of the Civil Proceedings Evidence Act 25 of 1965 must be interpreted contextually with ss 40 and 41, in a substantive rather than formalistic manner. The critical question is whether the witness understood they were about to give evidence, that truth was required, and that they appreciated the obligation to speak the truth - not whether particular words were used. (3) In assessing damages for unlawful arrest and detention, courts must consider all relevant circumstances of the particular case, including: personal circumstances of the plaintiff; manner of arrest; duration of detention; degree of humiliation; deprivation of liberty; and other relevant factors. A mechanical "one-size-fits-all" approach based solely on duration is incorrect. (4) An appellate court must substitute a trial court's award of damages where the trial court misdirected itself on material facts or approach, or where the award is markedly different from what the appellate court considers appropriate and is palpably inadequate or out of proportion to the injury. (5) Interest at the prescribed rate is payable ex lege on judgment debts from the date of judgment unless the judgment provides otherwise, per s 2 of the Prescribed Rate of Interest Act 55 of 1975.

The Court made several non-binding observations: (1) Transcribed court records tend not to be complete and do not always give a verbatim account of what happened in court, particularly where interpreters are used and some words may not be properly translated onto the record. (2) The court noted (without deciding) counsel's submission that it would be futile to remit the matter to the full court given that the Minister had conceded liability and the merits were decided on the defendant's own evidence. (3) The court observed that the arrest was "undoubtedly malicious" and its execution "despicable and humiliating" - stronger language than necessary for the legal determination. (4) While providing guidance that courts have awarded damages ranging from R15,000 to R30,000 per night in recent cases, the Court cautioned it was "not setting a bar" and awards must vary based on circumstances. (5) The Court emphasized that all concerned, including the judiciary and legal practitioners of the North West Division, should take heed of this judgment and the earlier Motladile decision and "expressly disavow" the one-size-fits-all approach.

This case is significant for several reasons: (1) It clarifies the limits of appellate courts raising issues mero motu - while courts have this power when necessary in the interests of justice, they must strictly adhere to procedural fairness and the audi alteram partem principle before deciding such issues. (2) It provides authoritative interpretation of s 39(2) of the Civil Proceedings Evidence Act, emphasizing a contextual, substantive approach over formalism when determining whether a witness was properly sworn in. (3) It rejects the "one-size-fits-all" approach to quantum in unlawful arrest and detention cases that had apparently developed in the North West Division, reaffirming that each case must be assessed on its particular facts. (4) It provides updated guidance on quantum for unlawful arrest and detention, surveying recent awards and indicating a range of R15,000 to R30,000 per night depending on circumstances, while cautioning that previous awards serve only as guides. (5) It reinforces the constitutional importance of awards reflecting the seriousness of violations of fundamental rights to liberty, dignity and privacy. (6) It clarifies that interest is payable ex lege from the date of judgment on damages awards.