In South Africa, countless innocent people are wrongfully arrested, thrown into jail, and then subjected to degrading, inhumane, and dehumanising circumstances. What would be the legal recourse available to a person who has been wrongfully arrested? Furthermore, how does the court determine the amount of money a person could claim after being wrongfully arrested? These questions will be explored in light of Sandlana v Minister of Police and Another (Sandlana case). 

A wrongful arrest occurs when a person is arrested without legal justification. The facts of the Sandlana case were as follows: Mr Nceba Sandlana (plaintiff), a 48-year-old family man was arrested in Cape Town by a police officer on an allegation of contravening certain provisions of the Intimidation Act 72 of 1982. The plaintiff was subsequently detained (kept in custody) at Pollsmoor Prison for seven nights, extending into an eighth day. 

After the plaintiff’s release from prison, he instituted a claim for damages against the Minister of Police for wrongful arrest and detention. The court, after careful consideration of how the arrest was carried out by the police, concluded that the plaintiff’s arrest and subsequent detention were unlawful. Therefore, where a court finds that an arrest has been unlawful, it entitles a person to claim damages for unlawful arrest and detention. 

The plaintiff experienced the following while at Pollsmoor Prison: He had to sleep in an overcrowded jail cell with 76 other people and the cell only had 20 beds. He slept on a cold floor in mid-winter and shared a blanket with other detainees, which meant that he could not sleep properly. 

In addition, he only received two meals per day and was not permitted to exercise outside. The court was of the view that the emotional scars the plaintiff suffered after his unlawful arrest still run deep. After careful consideration of the facts, the court held that a damage award of R300,000 would be fair and reasonable compensation for the plaintiff. 

The facts of this case showcase the inhumane circumstances that victims of unlawful arrest and detention have to endure while behind bars. When the court determines the amount of money a victim will be entitled to claim, the following factors are relevant:

1. The circumstances under which the deprivation of liberty took place.
2. The conduct of the defendant.
3. The nature and duration of the deprivation.

The Supreme Court of Appeal in the Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA), found that the primary purpose of compensation is not to enrich the victim, but to offer much-needed compensation for their injured feelings. Thus, the damages awarded must be consistent with the injury inflicted.

Furthermore, a fair award for damages for wrongful arrest and detention should express the importance of the constitutional right to individual freedom. It should also consider the facts of each case, the personal circumstances of the victim, and the nature, extent, and degree of affront to their dignity and their sense of worth.

There are no hard and fast rules that will determine the exact amount a victim of unlawful arrest would be entitled to. Each case will be decided on its own facts. However, a golden thread in the court’s approach in determining the amount is that a detailed evaluation of the victim’s day-to-day experiences behind bars is taken into consideration and the impact thereof on their emotional well-being. 

The conclusion which may be drawn from the court’s reasoning is that the more dehumanising and degrading the circumstances are during imprisonment, the more likely a court would award a higher amount for damages. However, should the circumstances during imprisonment be more bearable for a person, the more likely the court would award a lesser amount for damages. In doing so, the court ensures that the amount awarded for damages is consistent with the injuries inflicted.  

Should you believe that you have been wrongfully arrested and exposed to circumstances which have detrimentally impacted you, the first step in seeking justice is to consult with expert legal practitioners. Please feel free to contact us or book a consultation. 


Reference list:
1. Sandlana v Minister of Police and Another 2023 (2) SACR 84 (WCC).
2. Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA).
3. Khanyi v Minister of Police 2023 ZAGPJHC, 434.
4. Scott, J. (2009) “Wrongful Arrest: A Brief Survey of The Impact of The Constitution In Recent Case Law”. 30 Nelson Mandela University
Law Journal, 725-737. 


WRITTEN BY ETHAN DU TOIT 
Ethan du Toit is a candidate attorney at Miller Bosman Le Roux Attorneys.

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