THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 115/2021
In the matter between:
MINISTER OF POLICE

APPELLANT
and
XOLILE MZINGELI

FIRST RESPONDENT
LUTHANDO NDAYI

SECOND RESPONDENT
MPUMEZO XABADIYA

THIRD RESPONDENT

Neutral citation: Minister of Police v Mzingeli and Others (115/2021) [2022] ZASCA
42 (5 April 2022)
Coram: Petse DP, Van der Merwe and Hughes JJA, and Tsoka and Makaula AJJA
Heard: 16 February 2022
Delivered: This judgment was handed down electronically by circulation to the parties’
legal representatives by email, publication on the website of the Supreme Court of
Appeal and release to SAFLII. The date and time for hand-down are deemed to be
10h00 on 5 April 2022.

Summary: Delict – claim for damages – quantum of unliquidated damages – no oral
evidence – stated case – whether properly formulated in terms of Rule 33 –
requirements restated.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: The Eastern Cape Division of the High Court, Mthatha (Zono AJ
sitting as court of first instance):

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

___________________________________________________________________

JUDGMENT
___________________________________________________________________
Hughes JA (Petse DP, Van der Merwe JA, and Tsoka and Makaula AJJA
concurring):

[1] This appeal is with the leave of this Court, granted on the following terms:
‘The leave to appeal is limited to the following:
(a) Whether it was permissible for the court to determine the quantum of unliquidated
damages without hearing oral evidence in light of the decision of EFF and Others v
Manuel [2020] ZASCA 172;
(b) Whether the stated case was properly formulated in accordance with the rules of court
and the requirements for such a stated case, so as to be sufficient to enable the court
to determine the issue of the quantum of damages;
(c) The quantum of damages awarded to each of the plaintiffs.’

[2] The respondents did not file heads of argument and opted to abide by this
Court’s decision. The appellant sought condonation in terms of rule 12 of the Rules of
the Supreme Court of Appeal for the late filing of the record and heads of argument.
Both applications were unopposed by the respondents. In support of the condonation

application, the appellant stated that the courier company entrusted with the task of
delivering the record to the Court failed to provide a plausible explanation for the late
delivery to the Court. This Court, having satisfied itself that a proper case for
condonation was made out, grants condonation in both instances.

[3] Briefly, the following are the facts. The respondents, Messrs Xolile Mzingeli,
Luthando Ndayi and Mpumezo Xabadiya, instituted an action against the appellant,
the Minister of Police, claiming damages for unlawful arrest, detention and malicious
prosecution.

[4] And this is how the claims came about: On 13 September 2009 the respondents
were arrested and charged with housebreaking, theft and murder. They were detained
and, on 17 September 2009, the first and third respondents were found guilty of theft
and were sentenced to 12 months’ imprisonment. The murder charge was still being
investigated. After serving their sentence of 12 months, the first and third respondents
remained incarcerated together with the second respondent in respect of the murder
charge. The respondents remained in custody until 24 July 2014, when the murder
charge was withdrawn against them. The first and third respondents claimed damages
for the period 14 September 2010 to 24 July 2014 and the second respondent for the
period 13 September 2009 to 24 July 2014.

[5] The trial was scheduled to proceed on 15 October 2019. However, the parties
attempted to settle both the issue of liability and quantum, but were not successful in
respect of quantum. The court a quo (Zono AJ) made an order in terms of rule 33(4) of
the Uniform Rules of Court, thereby separating the issues of liability and quantum.  It
was further recorded in the order that the appellant was found liable on the merits and
the only issue left for determination was the quantum for general damages arising from
the detention of the respondents. The respondents did not persist with the claim for
malicious prosecution and the issue of quantum was then adjourned to the following
day.

[6] On 16 October 2019, the court a quo acceded to hear the issue of quantum by
way of a stated case as formulated by the parties. After hearing oral argument, the
court a quo awarded the first and third respondents an amount of R3 000 000 as a

reasonable and fair compensation, whilst, the second respondent was awarded an
amount of R4 000 000 as reasonable and fair compensation.

[7] I now turn to the merits of the appeal. Rule 33(1) and (2) of the Uniform Rules
provides:

‘(1) The parties to any dispute may, after institution of proceedings, agree upon a written
statement of facts in the form of a special case for the adjudication of the court.
(2)(a) Such statement shall set forth the facts agreed upon, the questions of law in dispute
between the parties and their contentions thereon. Such statement shall be divided into
consecutively numbered paragraphs and there shall be annexed thereto copies of documents
necessary to enable the court to decide upon such questions. It shall be signed by an advocate
and an attorney on behalf of each party, or where a party sues or defends personally, by such
party.
(b) Such special case shall be set down for hearing in the manner provided for trials or opposed
applications, whichever may be more convenient
(c) …’
[8] It is important to restate the approach to be adopted whenever litigants request
a court to invoke rule 33 and determine the issues by way of a stated case. It is
incumbent upon the parties to ensure that the stated case contains adequate facts as
agreed upon between them. Further, the statement ought to also contain the question
of law in dispute between the parties and their contentions regarding these questions
of law. Wallis JA reaffirmed this in Minister of Police v Mboweni and Another:
‘It is clear therefore that a special case must set out agreed facts, not assumptions. The point
was re-emphasised in Bane v D’Ambrosi, where it was said that deciding such a case on
assumptions as to the facts defeats the purpose of the rule, which is to enable a case to be
determined without the necessity of hearing all, or at least a major part, of the evidence. A
judge faced with a request to determine a special case where the facts are inadequately stated
should decline to accede to the request. The proceedings in Bane v D’Ambrosi were only
saved because the parties agreed that in any event the evidence that was excluded by the

judge’s ruling should be led, with the result that the record was complete and this court could
then rectify the consequences of the error in deciding the special case.’1

[9] In the present matter it is prudent to point out that there were facts included in
the stated case which were disputed by the appellant. There were also unsubstantiated
statements and no evidence advanced to substantiate these statements. Though the
statement of facts informed the court a quo of the detention of the respondents and the
period thereof, it did not provide details of the allegations of the acts of assault
perpetrated on the respondents by both the police and the inmates, nor did it deal in
detail with the acts of sodomy alleged by the respondents. Further, no details can be
found in the statement demonstrating the ‘inhumane, degrading and unhygienic’
conditions to which the respondents were allegedly subjected. In essence, the factual
material presented in the stated case was not sufficient for a court to make a
determination on the quantum and required evidence to be adduced to substantiate
the respondents’ claims.

[10] Notably, the court a quo acknowledged that the stated case was lacking in
details and evidence relating to the manner, extent and duration that the respondents
were allegedly subjected to assault, torture and sodomy whilst in detention. Despite
these shortcomings in the stated case, the court a quo proceeded to make
assumptions and draw inferences in order to arrive at the ultimate conclusions
reached. The court a quo acknowledged this in its judgment.2

[11] The court a quo, in finding for the respondents, made the awards set out above
and stated:
‘It is the parties’ minds that all three plaintiffs must be compensated but they do not agree on
the amounts. I am called upon and I set out to decide this case on the basis of the contended
amounts. It is from the contentions of the parties that the question of law sought to be decided
emerges…..

1 Minister of Police v Mboweni and Another [2014] ZASCA 107, 2014 (6) SA 256 (SCA) at para 8; Bane
and Others v D’Ambrosi [2009] ZASCA 98; 2010 (2) SA 539 (SCA) at para 7.
2 Paras 5, 9, 10, 22 and 23 of the judgment of the court a quo by Zono AJ.

On the conspectus of the agreed facts, parties’ contentions and relief sought in the stated case
coupled with the authorities I have considered on the subject, I find as follows….’3 [My
emphasis.]

[12] Therefore, I find that the approach adopted by the court a quo to be
inappropriate, especially so, in respect of determining the quantum of unliquidated
damages. It is correct that a court may draw inferences from the facts in a stated case,
however, these are to be drawn from satisfactorily and adequately stated facts, as
would have been proven at trial.4

[13] In this case the quantum of the unliquidated damages claimed by the
respondents was hotly disputed. Evidently, damages of the kind claimed by the
respondents are by their very nature indeterminate and, as such, require proper
assessment by the court. The court a quo acknowledged this much. However, even in
the face of such acknowledgement, no evidence was adduced to aid with the
assessment and quantification of these damages.

[14] It was accepted by the parties during argument on appeal that determining
quantum in this matter by way of a stated case – such as it was – was not the correct
approach to adopt. This stance was correct as nowhere in the stated case or the
pleadings had the parties agreed on the relevant facts necessary to determine and
prove the quantum awarded by the court a quo.

[15] I must express this Court’s displeasure at the state of the record that included
some 178 pages unnecessarily incorporated into the record. This Court has repeatedly
admonished practitioners for including unnecessary documents in the appeal record.
It would seem that some of the practitioners have not heeded these warnings and,
thus, need to be reminded of this Court’s previous admonitions.5

3 Para 40 and 41 of the judgment of the court.
4 Feedpro Animal Nutrition (Pty) Ltd v Nienaber NO and Another [2016] ZASCA 32 at para 9 &10.
5 Government of the RSA v Maskam Boukontrakteurs (Edms) Bpk 1984 (1) SA 680 (A) at 692E–
693A; Salviati & Santori (Pty) Ltd v Primesite Outdoor Advertising (Pty) Ltd 2001 (3) SA 766 (SCA) paras
16–17; Nkengana v Schnetler [2010] ZASCA 64; [2011] 1 All SA 272 (SCA) para 16.

[16] Turning to the issue of costs, I am mindful of the fact that the respondents
sought to abide with this Court’s decision. In the circumstances the appeal was
unopposed. In addition, during the appeal the parties conceded that the stated case
was an incorrect course of action to have adopted for which they must share equal
blame. The proper order in these circumstances is that there be no order as to costs.

[17] Accordingly, the following order is made:
The appeal succeeds with no order as to costs.
The order of the court a quo is set aside.
The matter is remitted to the court a quo for the determination of the quantum
of damages.

_________________
W HUGHES
JUDGE OF APPEAL

APPEARANCES

For the Appellant:

D V Pitt (heads of argument prepared by
Z Z Matebese SC with him D V Pitt)
Instructed by:

State Attorney, Mthatha

State Attorney, Bloemfontein

For the Respondent:

A M Bodlani
Instructed by:

T A Noah & Sons Attorney, Mthatha

No correspondent in Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
5 April 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
Minister of Police v Mzingeli and Others (115/2021) [2022] ZASCA 42 (5 April 2022)

Today the Supreme Court of Appeal (SCA) upheld an appeal for the Eastern Cape Division of
the High Court, Mthatha (court a quo) and set aside the order of the court a quo. The matter
was remitted to the court a quo for hearing of evidence on quantum and its determination.
Leave to appeal was limited to only the quantum of damages awarded to each of the
respondents (plaintiffs in the court a quo), whether a court could determine quantum of
unliquidated damages without hearing oral evidence and whether the stated case was properly
formulated in accordance with the rules of court and the requirements for the stated case, so as
to be sufficient to have enabled the court to determine the issue of quantum of damages.
The respondents instituted proceedings against the appellant in the court a quo, claiming
damages for unlawful arrest, detention and malicious prosecution. During trial the parties
settled the merits, but were unsuccessful with quantum. The court a quo made an order in terms
of rule 33(4) separating the issues of liability and quantum, and acceded to hear the issue of
quantum by way of a stated case, as formulated by the parties in terms of rule 33(1) and (2) of
the Uniform Rules of Court. Subsequently, awards of R3 000 000 were made to the first and
third respondents whilst R4 000 000 was awarded to the second respondent.

A requirement for a stated case is that the parties are to ensured that there is agreement as to
all the facts. Determination of unliquidated damages is permissible by way of a stated case,
provided it is brought before the court in a proper fashion. The quantum of unliquidated
damages claimed by the respondents were disputed; these damages were not fixed and required
the assessment of the court, which was a factor acknowledged by the court a quo. Furthermore,
no evidence was adduced to aid with the assessment and quantification of the damages and this
Court emphasised its importance by reiterating the fact that a proper assessment and an
appropriate award can only be made after evidence has been duly considered.
Upon appeal, the parties agreed that a stated case was not the correct approach adopted in this
instance, which was confirmed by this Court. Nowhere in the stated case or the pleadings were
any relevant facts agreed upon which were necessary for determining and proving the quantum
awarded by the court a quo.
In the result, the SCA upheld the appeal and set aside the order of the court a quo. The matter
was remitted to the court a quo for hearing of evidence on quantum and its determination.
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