THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case No: 811/2016

In the matter between:

MINISTER OF SAFETY AND SECURITY

APPELLANT

and

RAYMOND AUGUSTINE
1ST RESPONDENT
BASHNEE SHARON AUGUSTINE
2ND RESPONDENT
JARRED SHELDON AUGUSTINE
3RD RESPONDENT
CELINE JANINE AUGUSTINE
4TH RESPONDENT

Neutral citation: Minister of Safety and Security v Augustine (811/2016)
[2017] ZASCA 59 (24 May 2017)

Coram:
Shongwe ADP, Lewis, Petse and Mbha JJA and Gorven
AJA

Heard:

4 May 2017

Delivered:
24 May 2017

Summary: Delict: General damages: appeal against quantum: test: damages
awarded not disproportionate: appeal against punitive costs order: order
warranted: appeal dismissed.

___________________________________________________________________________

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Makgoka,
Tolmay and Tuchten JJ sitting as court of appeal):

The appeal is dismissed with costs.

JUDGMENT

Gorven AJA (Shongwe ADP, Lewis, Petse and Mbha JJA concurring):
[1] This appeal is directed at the amount of general damages awarded to the
four respondents by the full court of the High Court, Gauteng Division, Pretoria
(the full court) and the punitive costs order which accompanied that award. The
full court was hearing an appeal from the decision of Mali AJ, sitting as a judge
of first instance (the trial court).

[2] The claim related to damages arising from the unlawful entry into the
home of the respondents without their permission or lawful warrant, for the
unlawful damage to one or more of the doors of their home and the lock of a
security gate, for the unlawful pointing of firearms at the respondents, for
insulting, assaulting, humiliating and intimidating the respondents. The trial
court awarded each of the respondents general damages in the sum of R25 000
and costs on the Magistrates’ Court scale.

[3] This prompted an appeal by the respondents to the full court. It was
directed against the failure to award damages for future medical costs, the
quantum of general damages, the rate of interest and the date from which
interest ran as well as the failure to award attorney and client costs, taxed on the
high court tariff.

[4] The full court was unanimous in its view that the appeal should succeed,
that damages for future medical expenses should be awarded and on the interest
rate and the date from which interest should run. However, the court divided as
to the quantum of general damages and the costs to which the respondents were
entitled.

[5] The majority judgment was that of Tolmay J in which Tuchten J
concurred. It ordered the appellant to pay each of the first to third respondents
general damages in the sum of R200 000 and the fourth respondent general
damages in the sum of R250 000. It also ordered the appellant to pay both the
trial and appeal costs on the scale as between attorney and client, taxed on the
high court tariff.

[6] The minority judgment was that of Makgoka J. He held that he would
have awarded all four respondents general damages in the sum of R100 000 and
granted party and party costs, taxed on the high court tariff. It is against the
order of the full court that the appellant appeals, with the leave of this court.
The appeal is limited to the issues of the quantum of general damages and the
costs award.

[7] The background to the claim is as follows. The first respondent was
employed as a quality supervisor for a vehicle tracking company. His family
comprised his wife who was employed as a credit controller (the second
respondent), their 16 year old son (the third respondent), their 15 fifteen year
old daughter (the fourth respondent) and their two-and-a-half year old baby boy.
They resided at 12 Mowbray Avenue, Benoni, in a semi-detached house
adjoining the house at 12B Mowbray Avenue. The two houses had separate
entrances and separate numbers. Each number was displayed outside. The two
houses shared a common internal wall with no interconnecting door.

[8] At approximately 02h00 on 16 June 2009, the first respondent was woken
by the frantic barking of his dogs. He investigated by opening the bathroom
window which looked onto the area in which the dogs were confined. They
quietened down when they saw him and he left. Soon thereafter, the dogs began
to cry in a way he had never heard before. He returned to the bathroom window
and that is when he saw people inside the dining area pointing torches and red
laser lights in his direction. He responded by screaming at them. Thinking that
they were housebreakers, he shouted for his son and set off for the bedroom in
which his wife and two and a half year old baby were sleeping.

[9] Before he could step out of the bathroom door, he felt a rifle barrel held
against him. He was ordered not to look or talk and to lie down. He obeyed. He
heard footsteps on the wooden stairs ascending to the loft. He initially saw three
to five people but later realised that there were more. It transpired that there
were between 30 and 45 intruders in the house and yard. None of them
identified themselves. He feared that his wife or 15 year old daughter would be
raped and felt helpless to prevent it. He politely requested the intruder holding
the rifle against him to take whatever he wanted but not to harm him. He told

him where the vehicle keys and his wallet were located invited him to take
them. He heard his daughter scream and one of the intruders ordering her to be
quiet. She was, however, too hysterical to be able to desist. He also heard his
son running towards the room where his mother had been sleeping but then
heard the son cry out that he was being hurt. His son had been pinned to the
floor under the boot of an intruder. He heard his wife telling an intruder that she
wanted to go into the bedroom to attend to the baby but her request was refused.

[10] After he had requested the intruder to take the valuables and car keys, the
person was quiet for about two minutes and then said to him, ‘My friend, we are
not here to rob you, we are the police.’ This was about 30 minutes after the
house was entered. The first respondent became angry and tried to push the rifle
aside. He asked why, if they were the police, they were hurting the family they
were employed to protect. The response was that the intruder could not give him
any information and he should wait for the captain. During this period, he heard
cupboards being searched and, after a while, one of the intruders said ‘clear’.
The intruders then began to leave the property. He could observe that they were
wearing what he referred to as combat uniforms but, since they were wearing
balaclavas, could not make out any of their faces. He could not see any
nametags or other form of identification and also saw no police uniforms.
During the period of the incident, the only electric light burning in the house
was the one in the bathroom which the family left burning overnight. The
intruders had used only torchlight.

[11] As they were leaving through the front door, he noticed that the side door
had been broken in order to gain access. He became angry, stopped some of
them and told them that they could not simply do something like that and then
walk away. He required an explanation as to their conduct. He was told that

Inspector Van Zyl would be there to talk to him but, for the rest, his request was
ignored. After insisting on an explanation, one of the young intruders told him
that they were looking for a person called Eugene, who had robbed a casino a
few days before. He responded that there was no Eugene staying there but that
there was a Eugene staying in the next door semi-detached house at
12B Mowbray Avenue.

[12] On receiving this information, the intruders began to assault a non-
uniformed, handcuffed person, accusing him of having brought them to the
wrong house. They then left, went to the next door house, broke the gate down,
booted in the door and entered. After a while, the police left in vehicles.
Nobody came to him to explain what had happened, including anyone named
Inspector Van Zyl. He had noticed that the neighbours had witnessed the police
leaving his home and felt humiliated by this.

[13] After the intruders had left their home and he had seen them enter the
next door house, he went inside. When he was asked what had happened next,
he said: ‘We were in a situation. We were distraught. We were trying to figure
out what was going on, why this had happened and, you know, comforting each
other. My daughter was a mess. My wife was a mess. They were all traumatised
by this. Luckily the baby did not experience any of this. He was asleep. My son
was complaining that the guy actually trampled on him. We were having a look
at his back and we just could not sleep. We were scared. We were scared. We
were shaken.’

[14] The intruders had cut a lock in order to enter the driveway gate. The lock
of a door to the house was broken as was the sliding gate lock. Two panes of
glass on the front door were broken. All of these items had to be replaced.

[15] That morning, the first and second respondents went to the Benoni Police
Station to lay a complaint against the police that had come to his property. They
also wanted to seek counselling for their family to address the trauma which
they had experienced. At the police station they were taken into a private room
where the station commander joined them. He was very helpful until he heard
that they were alleging that it was the police who had acted like this. He then
left the room and, on his return, told them that they did not have a case and were
wasting their time. The second respondent began talking to a female police
counsellor at that stage. She was being very helpful and told them that they
were entitled to lay a charge and should contact the Independent Police
Investigative Directorate (IPID) to do so. The station commander then called the
counsellor aside and, after he had spoken to her, she said that she was unable to
assist them any further. The second respondent later begged her for her mobile
number which she gave but, when she was phoned, she said that she did not
have the number of the IPID.

[16] The respondents finally laid a criminal charge. However, despite their
mention that Inspector Van Zyl was supposedly in charge of the operation, the
docket later recorded that there had been a decision not to prosecute because the
identity of the suspects was not known. The respondents also brought this action
which has led to this appeal.

[17] It is of some importance to note the manner in which the appellant
conducted the litigation in this matter. The appellant denied liability in toto. Not
only that, but the plea denied that any member of the South African Police
Service entered the house of the respondents. It also denied that any such
member pointed a firearm, assaulted, intimidated or humiliated any of the
respondents. It further denied that any of the persons referred to by the

respondents were employees of the South African Police Service or had acted in
the course and scope of their employment as such. At a later stage, on a date
which is not clear from the record, the appellant amended the plea. It alleged
that, in search of a suspect in an armed robbery and on reliable information that
this person resided at 12 Mowbray Avenue, members of the South African
Police Service arrived at that address, knocked on the door, identified
themselves as police officers, explained the reason for their presence at the
premises and requested permission to search. Thereupon, the person who had
answered the knock opened the door and allowed them to search the premises.
The police then found some documents displaying the names of the suspect in
one of the rooms in the house. The appellant went on to plead that the search
was conducted decently and in an orderly fashion, denying that there was any
forced entry or any assault or intimidation or humiliation of any of the
occupants of the house or that any firearm was pointed at any of the occupants
or that anyone was detained. In the alternative it was pleaded that if it was found
that any of the occupants had been intimidated, such intimidation was necessary
in the circumstances.

[18] At the commencement of the trial, the appellant had refused to furnish the
respondents with copies of the discovered documents. A formal application to
compel production had to be brought. This finally resulted in an undertaking to
provide what was termed ‘the docket’ to the respondents. The version set out in
the amended plea was persisted in at the trial. It was correctly found by the trial
court that this version was false. In addition, employees of the appellant testified
falsely that the semi-detached houses were in fact a single house. It was also
falsely persisted in that a document, as opposed to documents as was pleaded,
bearing the names of the suspect was found in the home of the respondents. The
full court correctly found that the members of the South African Police Service,

by giving false evidence, were simply attempting to defeat the claim of the
respondents.

[19] After the incident, the family experienced sleepless nights and flashbacks.
The children were scared to sleep in the dark. They were scared to go out of the
home at night. They visited the family doctor and explained the whole situation.
He prescribed medication to assist but that did not resolve their problems. The
work done by the first respondent required his leaving home at night in order to
work on night shifts. His family was scared to stay alone. He therefore started to
work a normal shift and no longer do weekend or night shift work. The trauma
associated with their house reached a point where they relocated to another
property. The first respondent had a heart attack which he attributed to the stress
caused by the incident. When he testified, on 18 August 2014, the incident was
still affecting his performance at work. This was more than five years later. The
fourth respondent’s academic performance deteriorated. Whereas before she
was a bright student, afterwards she even had to repeat one of her grades. She
refused to sleep in her bed and insisted on sleeping in the same room as the first
and second respondents. The third respondent became aggressive. At the time of
the trial, he was still struggling to sleep at night.

[20] The expert evidence of Dr Swanepoel was led. He was a clinical
psychologist who testified about the psychological sequelae suffered by the
respondents. None of his evidence was countered. He conducted a series of tests
on each of the respondents as well as interviewing each of them extensively. He
testified that, because the incident took place in the home of the respondents,
they were no longer able to view it as their place of safety or protection, comfort
or rest. This caused severe psychological distress. Likewise, for the first two
respondents, their inability to protect their children from being threatened

created psychological distress and had a severe effect on their level of
functioning. The psychological trauma was exacerbated by their experience at
the police station when the persons employed to serve and protect refused to
entertain their complaint. He went on to deal in detail with each of the
respondents in turn. I will summarise aspects of his evidence.

[21] The first respondent suffered from post-traumatic stress disorder arising
from the incident. This goes far beyond the need to be assisted after a traumatic
situation which could be done by a counsellor. It is a psychiatric disturbance
and requires specialised treatment. Where post-traumatic stress disorder is
untreated, it will lead to major depression. Once that exists, there are
occupational problems, general functioning problems and possibly even suicidal
thoughts and attempts. In addition, he suffered from dysthymia which includes a
chronic feeling of ill-being and lack of interest in activities that were formerly
enjoyable. This was diagnosed as falling short of depression but causes a person
to live ‘a life of depression’ and function at a low level. This is only diagnosed
after symptoms have persisted for two years or more. The first respondent also
suffered from sleeplessness and anxiety.

[22] The second respondent suffered from post-traumatic stress disorder
arising from the incident. She also suffered from insomnia and anxiety. Her
inability to attend to her youngest child resulted in feelings of guilt and self-
blaming. Her trauma was such that she did not even hear the hysterical
screaming by the fourth respondent during the incident. The fact that the
intruders refused to respond to the enquiries from the first respondent led to a
feeling that their existence was negated. This can lead to psychotic behaviour. It
was understandable that she was looking for an apology so that her existence

could be confirmed. It was clear when she gave evidence that she was still
emotionally affected.

[23] The third respondent, who had a booted foot placed on his back and a
rifle pointed at his head, also suffered from post-traumatic stress disorder,
dysthymia and anxiety. This would have been caused by his own trauma and by
seeing his father lying on the ground, powerless and with a rifle to his head. It
would have been exacerbated by his inability to protect his sister. He even
attempted to crawl to her when the boot was on his back and the rifle at his
head. He could not sleep for months after the intrusion. He had lost respect for
the South African Police Service. His academic performance deteriorated as a
result of his concentration being impaired after the incident. He had aggressive
impulses.

[24] The fourth respondent suffered from post-traumatic stress disorder which
resulted from the incident. For months after the incident she could not sleep
properly and every time she closed her eyes she saw the flashlights and heard
men screaming at her. She became too afraid to sleep on her own and had to
sleep with her mother. She was unable to sleep with the lights off. Her friends
informed her that she had become short tempered and irritable. She lost trust in
and respect for members of the South African Police Service. She also suffered
from severe traits of paranoia and a sense of self-importance. The latter could be
a defence mechanism employed to deal with anxiety. Hers was clearly the worst
case in the family and Dr Swanepoel expressed particular concern for her
wellbeing. Dr Swanepoel recommended certain therapy for each of the
respondents in an effort to prevent a degeneration into permanent depression.

[25] The approach for arriving at the quantum of general damages is well
established. A court attempts to arrive at a fair award to compensate for the
negative impact of the delict on the life of the injured party. The amount of this
award is therefore not susceptible of precise calculation.1 It is arrived at in the
exercise of a broad discretion.

[26] The test for interference on appeal is:
‘[S]hould an appellate Court find that the trial Court had misdirected itself with regard to
material facts or in its approach to the assessment, or, having considered all the facts and
circumstances of the case, the trial Court's assessment of damages is markedly different to
that of the appellate Court . . .’.2
The first of these requires analysis of the judgment to establish whether there
have been misdirections regarding either the proper approach or the facts taken
into account. The second requires the appeal court itself to broadly assess what
it would have awarded had it been sitting as a court of first instance.3 An appeal
court must interfere if ‘the damages are so high [or low] as to be manifestly
unreasonable.’4 The underlying principle for this latter approach must be that
the award is so disproportionate that the appeal court can infer that the
discretion accorded the trial court was not properly exercised.

[27] The appellant’s counsel accepted that the full court was entitled to
interfere with the award of the trial court. He was, however, unable to point to
any misdirection in the judgment of the full court in the approach to the
assessment or the material facts taken into account. Nor can I find any. His
submission was that the award itself warranted interference because it was

1 Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) para 20.
2 Per Mokgoro J, in Dikoko v Mokhatla 2006 (6) SA 235 (CC); 2007 (1) BCLR 1; [2006] ZACC 10 para 57,
summarising and approving the approach of this court in Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194
at 200.
3 Dikoko para 95. See also; Sutter v Brown 1926 AD 155 at 171 and Salzmann v Holmes 1914 AD 471 at 480.
4 Per Wessels JA in Black & others v Joseph 1931 AD 132 at 150.

outrageously high. In this regard, he submitted that the court a quo did not pay
due regard to the following dictum of Holmes J:
‘[T]he Court must take care to see that its award is fair to both sides – it must give just
compensation to the plaintiff, but it must not pour out largesse from the horn of plenty at the
defendant’s expense.’5

[28] This submission requires a consideration of whether the award is
egregiously disproportionate. If not, there is no basis on which we can interfere.
Both counsel pointed to a number of previously decided matters which, they
submitted, should guide this exercise. It is worth remembering the part played
by previous awards in comparable cases. This was clearly expressed by
Potgieter JA:6
‘It should be emphasised . . . that this process of comparison does not take the form of a
meticulous examination of awards made in other cases in order to fix the amount of
compensation; nor should the process be allowed so to dominate the enquiry as to become a
fetter upon the Court's general discretion in such matters. Comparable cases, when available,
should rather be used to afford some guidance, in a general way, towards assisting the Court
in arriving at an award which is not substantially out of general accord with previous awards
in broadly similar cases, regard being had to all the factors which are considered to be
relevant in the assessment of general damages. At the same time it may be permissible, in an
appropriate case, to test any assessment arrived at upon this basis by reference to the general
pattern of previous awards in cases where the injuries and their sequelae may have been
either more serious or less than those in the case under consideration.’7
And, while a court should also take into account a significant reduction in the
value of money, the mechanical application of the increase in the consumer
price index between the date of the award and the present case should likewise
be guarded against.8 Some effect should, however, be given to it.9

5 In Pitt v Economic Insurance Co Ltd 1957 (3) SA 284 (D) at 287E-F.
6 Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A) at 535H-536B.
7 See also De Jongh v Du Pisanie NO 2005 (5) SA 457 (SCA) para 63.
8 AA Onderlinge Assuransie Assosiasie Bpk v Sodoms 1980 (3) SA 134 (A) at 141G-H.
9 Norton & others v Ginsberg 1953 (4) SA 537 (A) at 541C-E; Seymour note 1 para 16.

[29] Both counsel accepted that there were no previous matters which were
directly comparable to the present one. Both referred to the matter of Pillay v
Minister of Safety and Security,10 which influenced the full court in its decision.
In this matter, the police purported to act under an authorisation to search the
home of the 62 year-old plaintiff. They broke through two security gates as well
as the entrance door in order to obtain access. They damaged certain interior
doors, door frames, door locks and cupboard door locks and scattered goods and
belongings of the plaintiff around the house. The plaintiff was scared and called
the flying squad to assist her. She was body searched but how this was
conducted was disputed. She suffered PTSD involving ‘flash-backs and reliving
the traumatic event, anxiety, mood disturbances, upsetting dreams, persistent
avoidance, sleep disturbances, impaired concentration, memory deficiencies,
depression, feelings of guilt, rejection and humiliation.’ Her prognosis was
poor. She was awarded general damages in the sum of R150 000.

[30] Counsel for the appellant submitted that the award in this matter should
not be based on Pillay for two reasons. The first was that the award in that
matter was ‘grossly excessive’. The second was that the full court failed to
distinguish the facts in this matter from those in Pillay. Counsel for the
respondents submitted that the full court correctly held that Pillay was the case
which most closely resembled the present one. He also submitted that the full
court was alive to the distinguishing features and also considered a number of
other matters, including those relied upon by the appellant in contending for a
lower award.

[31] The second submission of counsel for the appellant was withdrawn before
us, as I have mentioned. No misdirections on the part of the full court were

10 Pillay v Minister of Safety and Security [2008] ZAGPHC 463 (2 September 2008).

relied on. In my view, this withdrawal was correct. The full court focussed on a
range of factors in the present matter which had guided it. It also considered a
number of other cases dealing with psychological sequelae and with unlawful
arrest and detention, some of which resulted in substantial awards.

[32] One of these was Kritzinger & another v The Road Accident Fund,11
where parents of two children killed in a motor vehicle accident suffered from
chronic PTSD and major depressive disorder. They were awarded R150 000 and
R120 000 respectively in 2009. In Marwana v Minister of Police,12 the
employer of the plaintiff, a domestic worker, was robbed at his home. When the
plaintiff reported for work the following day, she was arrested and detained for
just over a day. During that time she was taken to her home where an
unauthorised search was conducted and she was assaulted. Her general damages
under various heads totalled R155 000 in 2012.  In Minister of Police v
Dlwathi,13 the plaintiff, an advocate, was assaulted resulting in a loss of hearing
and depression. He was awarded a reduced amount of R200 000 on appeal in
2016.

[33] In addition to these cases, the appellant referred to a number of cases. The
only one of these not already covered which is of relevance is that of Minister of
Safety and Security v Van Der Walt & another,14 where the respondents had
both been police captains prior to their resignation. They were unlawfully
arrested and detained. They were imprisoned by and in front of their erstwhile
colleagues and suffered dreadful conditions in the holding cells. One of them
could not sleep well for a while afterwards and the other contracted influenza

11 Kritzinger & another v The Road Accident Fund [2009] ZAECPEHC 6 (24 March 2009).
12 Marwana v Minister of Police  [2012] ZAECPEHC 56 (28 August 2012).
13 Minister of Police v Dlwathi (20604/14) [2016] ZASCA 6 (2 March 2016).
14 Minister of Safety and Security v Van Der Walt & another (1037/13) [2014] ZASCA 174; 2015 (2) SACR 1
(SCA) (19 November 2014).

which led to complications with his kidneys. On appeal the award of R250 000
was reduced to R120 000 in 2014.

[34] In the light of the abovementioned cases, it can hardly be said that the
awards made by the full court in this matter allow for interference on the test set
out above. Some of the aggravating factors in this case were that the incident
happened in the dead of night, it took place in the sanctity of the respondents’
home, which ultimately led to their relocation due to flashbacks which must
have been exacerbated by passing the places associated with the events.
Moreover, the whole family suffered serious sequelae such that their ability to
provide comfort and support to each other was compromised. After the relevant
cases and factors were debated, the appellant’s counsel simply submitted that
the award was ‘a little bit high’. That may be so but that is not sufficient to
warrant interference by an appeal court.

[35] The final submission of the appellant’s counsel on the question of
quantum was that the higher award of R250 000 to the fourth respondent was
not justified. This is not correct. The clear and unchallenged evidence of Dr
Swanepoel was that the fourth respondent was the most seriously affected of all
of the respondents. She was even unable to testify due to the strong probability
that this would be seriously detrimental to her health. There is accordingly also
no basis on which to interfere with this aspect of the quantum of damages
arrived at by the full court.

[36] Counsel for the appellant submitted that the punitive scale of the costs
order was not warranted. In particular, it was submitted that there was no appeal
against the costs order granted by the trial court and that the full court erred in
concluding that the trial was extended by the denial that the police were at all

involved and that they acted unlawfully. As to the first of these, the notice of
appeal to the full court requested costs on the scale as between attorney and
client. The submission is thus without merit. As to the second, not only was
there no basis to interfere with the exercise of the full court’s discretion, but the
punitive costs order was fully warranted.

[37] I have set out quite fully earlier in this judgment the manner in which the
litigation was conducted. The approach taken is to be deprecated. When those
entrusted with protecting the public15 do the opposite, the least that can be
expected is that they do not compound this behaviour with deliberate
falsehoods. These must have been made in full knowledge that if the
respondents were able to muster the resources to bring the matter to court, the
denials would be shown up for what they were. In addition, giving false
testimony that a document bearing the name of the person they were seeking
was found in the home of the respondents was a cynical attempt to mislead the
court. To then discover, but refuse to make available, documents in the matter
forcing a formal application to compel disclosure invites severe censure. From
the expert report the appellant was aware of the trauma which the members of
the South African Police Service had caused the respondents. In causing the
respondents to be cross-examined on the basis of the false version, with this
awareness, showed a total disregard for the police motto to serve and protect.
The outrageous conduct of the police when it was realised that the complaint of
the respondents involved fellow police officers was cynical, self-serving and a
clear attempt to impede the respondents in their justifiable quest for justice. It

15 The preamble to the South African Police Service Act 68 of 1995 says that it was enacted to meet the need for
a police service to:
‘(a)   ensure the safety and security of all persons and property in the national territory;
(b)   uphold and safeguard the fundamental rights of every person as guaranteed by Chapter 3 of the
Constitution;
(c)   ensure co-operation between the Service and the communities it serves in the combating of crime;
(d)   reflect respect for victims of crime and an understanding of their needs; and
(e)   ensure effective civilian supervision over the Service . . .’.

directly ignored their obligations as police members. In addition, their actions
contravened the provisions of s 28 read with s 29 of the Independent Police
Investigative Directorate Act.16 When counsel for the appellant was confronted
with these factors, he wisely and properly indicated that he would make no
further submissions on this point.

[38] In the result, the following order is made:
The appeal is dismissed with costs.

________________________
T R GORVEN
Acting Judge of Appeal

16 Independent Police Investigative Directorate Act 1 of 2011. The material parts of these sections read:
‘28  Type of matters to be investigated
(1) The Directorate must investigate-
(f)   any complaint of torture or assault against a police officer in the execution of his or her duties’
. . .
29  Reporting obligations and cooperation by members
(1) The Station Commander, or any member of the South African Police Service or Municipal Police Service
must-
(a)   immediately after becoming aware, notify the Directorate of any matters referred to in section 28
(1) (a) to (f); and
(b)   within 24 hours thereafter, submit a written report to the Directorate in the prescribed form and manner of
any matter as contemplated in paragraph (a).
(2) The members of the South African Police Service or Municipal Police Services must provide their full
cooperation to the Directorate . . .’.

Appearances
For the Appellant:
M S Phaswane

Instructed by: State Attorney, Pretoria

State Attorney, Bloemfontein

For the Respondents:
R J Groenewald
Instructed by: Aucamps Attorneys, Kempton Park
Symington & De Kok Inc, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
24 May 2017
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not form
part of the judgment of the Supreme Court of Appeal.

MINISTER OF SAFETY AND SECURITY
v
AUGUSTINE & OTHERS

Today the Supreme Court of Appeal handed down a unanimous judgment dealing with an appeal
against the quantum of general damages and costs handed down by the full court of the Gauteng
Division of the High Court, Pretoria. The claim arose from an incident where between 30 and 45
members of the South African Police Service broke into the home of the respondents at 02h00
without announcing that they were the police. The police pointed firearms at the respondents,
insulted, assaulted, humiliated and intimidated them. They respondents believed that they were
being robbed. The police did not have a warrant to search the premises or arrest any of the
respondents. They were looking for a suspect who, it seems, lived in the next door house. The
respondents suffered serious psychological harm whose sequelae endured some four years after
the incident and which caused them to have to move home.

The full court had heard an appeal by the respondents against the judgment of Mali AJ sitting as a
judge of first instance. This judgment awarded the respondents general damages in the sum of
R25 000 each and costs on the Magistrates’ Court tariff. On appeal, the full court increased the
award for general damages to R200 000 each for the first three respondents and R250 000 for the
fourth respondent along with attorney and client costs on the High Court tariff.

On appeal before the Supreme Court of Appeal, the appellant submitted that the award by the full
court was so excessive as to warrant interference, submitting that an award in the region of
R45 000 each should have been awarded, along with party and party costs on the High Court tariff.

The appeal against the quantum of damages was dismissed on the basis that the award of the full

court was not so disproportionate as to warrant interference on appeal. The appeal against the
punitive costs order was also dismissed on the basis that it was appropriate in that the untruthful
and obstructive manner in which the litigation was conducted was to be deprecated.