THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable

CASE NO: 295/05

In the matter between :

THE MINISTER OF SAFETY AND SECURITY
Appellant

and

SEYMOUR, DENNIS THOMAS
Respondent
__________________________________________________________________________
Before:
NAVSA, NUGENT & HEHER JJA
Heard:
2 MAY 2006
Delivered:
30 MAY 2006
Summary:

Unlawful arrest and detention – amount of award.

Neutral citation:
This judgment may be referred to as The Minister of Safety and
Security v Seymour, D T [2006] SCA 67 (RSA)
__________________________________________________________________________

J U D G M E N T
__________________________________________________________________________

NUGENT JA

NUGENT JA:
[1] The respondent, Mr Seymour, was unlawfully arrested and imprisoned
by the state for a period of five days. For that he was awarded general
damages of R500 000 by the Johannesburg High Court.  This is an appeal
against that award.  It comes before us with the leave of that court.
[2] At the time Seymour was imprisoned he was 63 years old.  He lived
on an agricultural small-holding in the Ennerdale district.  Seymour was the
chairman of an association of small-scale farmers from previously-
disadvantaged groups that he had been instrumental in forming.  He had also
taken the initiative to create a co-operative to establish and operate a dairy.
The members of the co-operative were some of the members of the
association, who were to contribute grants they were entitled to from the
government, and it was otherwise to be funded with assistance from
government agencies and the Danish International Development Agency.
Seymour was the managing-director of the co-operative and received a
salary of R23 000 per month.
[3] Some members of the association who had been excluded from the
co-operative believed that financial irregularities were taking place and
reported their belief to the police. As a result, a certain Superintendent
Smith, of the commercial crime unit of the police, obtained from Seymour

copies of the accounts and other documents of the co-operative.   Some time
later, on Friday 29 December 2000, at about 16h30, Smith arrived at
Seymour’s premises. He asked Seymour to accompany him to the Ennerdale
police station to make a statement.  Seymour was at first reluctant but
eventually he agreed to do so.  He followed Smith to the police station in his
own vehicle.  When they arrived at the police station Smith instructed the
duty officer to arrest Seymour.  Seymour was informed that he was being
arrested on a charge of fraud and he was informed of his rights.  Smith then
departed.
[4] The duty officer permitted Seymour to telephone his daughter, who in
turn telephoned other members of his family and informed them what had
occurred.  Seymour’s family arrived at the police station and implored the
police to release him but to no avail.  Later Seymour was locked in a cell
where he spent the night alone.
[5] Seymour suffered from high blood-pressure.  The following morning
he felt ill and experienced pains in his chest.  He informed his son, who had
arrived at the police station to see him, and his doctor was summoned.  The
doctor examined Seymour in an interview-room and diagnosed hypertension
with angina.  He told the police that Seymour should be admitted to a
medical high-care unit.  Such a unit existed at the Rand Clinic and the doctor

arranged for the resident physician to take over Seymour’s further treatment
when he arrived.
[6] Notwithstanding those medical instructions Seymour remained at the
Ennerdale police station for the remainder of the day.  Members of his
family were in constant attendance and were given free access to Seymour.
Later in the day the doctor was informed by a family member that Seymour
had not been taken to the clinic.  The doctor telephoned the police and
repeated his instruction that Seymour should be taken to the clinic.  He was
told that the police were waiting for a vehicle to enable them to do so.
[7] At about 17h00 Seymour was taken in the rear of a police van to the
Johannesburg Central police station.  On his arrival his fingerprints were
taken and he was placed in a cell.  The police at Johannesburg had not been
informed that Seymour was to be taken to the clinic, nor did Seymour tell
them.  Meanwhile, Seymour’s doctor had again been alerted.  At about
18h00 he arrived at the police station and repeated that Seymour required
medical attention.  Seymour was then taken to the Rand Clinic and admitted
to the intensive-care unit at about 20h05.  He slept through the night.  The
following day he was seen by a cardiologist and was transferred to a general
ward.

[8] On Wednesday 3 January 2001 Seymour, in the company of his
attorney, was taken by Smith, apparently from the clinic, to the magistrates’
court at Vereeniging.  The chief prosecutor declined to pursue the charge of
fraud that had been levelled at Seymour and he was discharged.
[9] There is no indication in the evidence that Seymour received any
medical treatment after he was discharged.  But on 15 May 2003, after the
present claim had been instituted, he consulted a psychiatrist to assess his
condition.  The psychiatrist diagnosed moderate to severe symptoms of
depression and symptoms of post-traumatic stress, and expressed the view
that the symptoms would respond to treatment. Seymour attributed those
symptoms to his incarceration.  No doubt that may have played a role, but in
my view the evidence does not exclude other factors.  In particular, his co-
operative project had by then foundered, and that may also have played a
role.  Seymour did not submit himself to treatment for the symptoms that
had been diagnosed.  Asked why he had not done so Seymour responded
that he relied rather upon his Christian convictions to see him through and
expected that payment of compensation by the state would enable him to put
the matter behind him.
[10] In its plea the state (nominally represented by the appellant) admitted
that Seymour was arrested and detained unlawfully. The particulars of claim

went rather broader, alleging that the conduct of Smith was in other respects
unlawful.  In my view the conduct of Smith, described more fully in the
evidence, is a matter to be taken account of in assessing the degree of
humiliation to which Seymour was subjected, but was not established by the
evidence to constitute a separate act of wrongful conduct.  That is how the
matter was dealt with by the court below and by counsel in argument before
us.  What was in issue at the trial, and now before us, is only what amount is
appropriate to compensate Seymour for the wrong that was done.
[11] In Protea Assurance Co Ltd v Lamb,1 Potgieter JA said the following
in relation to general damages for bodily injury (the principles apply equally
to a case like the present one) which was repeated more recently by this
court in Road Accident Fund v Marunga:2
‘It is settled law that the trial Judge has a large discretion to award what he in the
circumstances considers to be a fair and adequate compensation to the injured party for
these sequelae of his injuries. Further, this Court will not interfere unless there is a
“substantial variation” or as it is sometimes called a “striking disparity” between what the
trial Court awards and what this Court considers ought to have been awarded.’
[12] In assessing the appropriate award to make the court below considered
awards that had been made in numerous earlier cases. The learned judge said

1   1971 (1) SA 530 (A) 534H-535A:
2   2003 (5) SA 164 (SCA).

that the case that he found to be most illuminating was May v Union
Government.3 In that case an advocate of high standing was arrested on a
charge relating to dishonesty and tried six months later. At his trial the
plaintiff was acquitted after the first witness had given evidence. He sued the
state for wrongful arrest and malicious prosecution. Broome J found that the
prosecution was not malicious but that the plaintiff had been arrested
unlawfully and then unlawfully detained for some hours.  For that he was
awarded £1 000. In making the award Broome J said the following:4
‘The plaintiff is, and was then, an advocate of standing, and in actual practice. He
was a professional man of good reputation in the community. He was the author of legal
text books and of other works in more than one branch of literature. His arrest was
unceremonious and was given wide publicity in the press. On the other hand, his period
of actual detention amounted only to a few hours, and during that period he was shown
some consideration. It was said that the shock of arrest impaired his health, which was
not good at the time as he had suffered a coronary thrombosis some years before and
lived under the constant threat of a further attack. But in fact no further attack occurred,
and I do not think that his damages were appreciably aggravated by any actual
impairment of his health. In my opinion, in all the circumstances, he is entitled to a
substantial sum. Our law has always regarded the deprivation of personal liberty as a
serious injury, and where the deprivation carries with it the imputation of criminal
conduct of which there was no reasonable suspicion the injury is very serious indeed.

3   1954 (3) SA 120 (N).
4   At 130C-F.

Taking into account all the relevant circumstances, I find that the sum of £1,000 would be
an appropriate amount.’
[13] In the present case the learned judge in the court below said that the
equivalent of that award in present-day terms was ‘in the order of R350 000
to R400 000’.  Observing that that case was decided ‘40 years before we had
constitutionally enshrined rights to freedom and dignity and much else
besides’ and that ‘the courts must move, however glacially, to reflect in their
awards for damages in cases of this nature, the change in values which have
occurred not only in society as a whole but which we as judges are expected
to apply’ he concluded as follows:
‘I wish to emphasise that my conclusion is this: a shift, even though it is not a so-
called “sea change”, must be manifested in the value which the courts attach to freedom
and, correspondingly, the value to be applied to a person’s deprivation thereof.’
[14] I do not think that the courts in earlier cases placed less value on
personal liberty than ought to be placed on it today.  Indeed, what was said
in May shows the contrary.  Nor do I think there is any basis for concluding
that awards that were made at that time reflect a more tolerant judicial view
of incursions upon personal liberty. It was precisely because personal liberty
has always been judicially valued that the incursions that were made upon it
by the legislature and the executive at that time were so odious.  The real
import of the Constitution has not been to enhance the inherent value of

liberty, which has been constant, albeit that it was systematically
undermined, but rather to ensure that those incursions upon it will not recur.
To the extent that the learned judge placed a jurisprudential premium on
personal liberty that was absent before now,5 in my view it was misdirected.
[15] The learned judge also seems to have misdirected himself in relation
to the starting point for his assessment.  The manner in which he arrived at
the present-day estimate of the award in May was not expressed, but it is
difficult to see how he arrived at his estimate of R350 000 to R400 000.
Calculated according to the consumer price index referred to in Robert J
Koch: The Quantum Year Book 2006, the present-day value of that award is
approximately R116 000.6  But that apart, in my view the amount that was
awarded in the present case reflects a misdirection that seems to go rather
deeper.
[16] As pointed out by Botha AJA in AA Onderlinge Assuransie Assosiasie
Bpk v Sodoms7, it is generally undesirable to adhere slavishly to a consumer
price index in adjusting earlier awards.  But provided that stricture is borne
in mind it is useful as a general guide to the devaluation of money.  In the

5    Cf Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) esp para 67.
6   The index for 1954 was 66,5.
7   1980 (3) SA 134 (A) 141G-H.

cases that follow I have added, in brackets, the value of the relevant award
adjusted according to the indices in Koch.8
[17] The assessment of awards of general damages with reference to
awards made in previous cases is fraught with difficulty. The facts of a
particular case need to be looked at as a whole and few cases are directly
comparable.  They are a useful guide to what other courts have considered to
be appropriate but they have no higher value than that.  As pointed out by
Potgieter JA in Protea Assurance, after citing earlier decisions of this court:9
‘The above quoted passages from decisions of this Court indicate that, to the
limited extent and subject to the qualifications therein set forth, the trial Court or the
Court of Appeal, as the case may be, may pay regard to comparable cases. It should be
emphasised, however, 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

8   The index for 2006 is 3 847.
9   535H-536B.

and their sequelae may have been either more serious or less than those in the case under
consideration.’
[18] The dangers of relying excessively on earlier awards are well
illustrated by comparing the award in May to the award that was made in
Maphalala v Minister of Law and Order.10 In Maphala the plaintiff was
arrested on 23 June 1992 and released in consequence of an order of court
on 16 September 1992. He was immediately arrested again and released only
on 19 November 1992. During the period that he was detained the plaintiff
was held in solitary confinement, mostly incommunicado, for 150 days.
While in detention he was also tortured. In a comprehensive and closely
reasoned judgment, and after referring to the decisions in Ramakulukusha v
Commander, Venda National Force,11 and Minister of Justice v Hofmeyr12
(both of which the court considered to be less serious) Coetzee J awarded the
plaintiff  R145 000 (R300 000)13 for his unlawful arrest and detention. (He
was awarded an additional R35 000 for assault.) Needless to say, the
circumstances in that case were gross compared to those in May.  Whether
the award in May was excessive, or the award in Maphala was niggardly, is
beside the point.  I use them only to illustrate that the gross disparity of the

10   Unreported decision of the Witwatersrand Local Divison under Case no. 29537/93, given on 10
February 1995.
11   1989 (2) SA 813 (VSC).
12   1993 (3) SA 131 (A).
13   The index for 1995 is 1 863.

facts in each case is not reflected in the respective awards and neither is in
those circumstances a safe guide to what is appropriate.
[19] The following awards also provide some indication of how other
courts have viewed incursions upon personal liberty (they are by no means
exhaustive of the cases that have confronted the issue). In Solomon v
Visser,14 a 48 year old businessman who was detained for seven days, first in
a police cell and then in a prison, was awarded R4 000 (R136 000). In Areff
v Minister of Polisie,15 this court awarded a 41 year old businessman who
was arrested and detained for about two hours R 1000 (R24 000). In Liu
Quin Ping v Akani Egoli (Pty) Ltd,16 a businessman who was unlawfully
detained for about three hours was awarded R`12 000 (R16 978).   In
Manase v Minister of Safety and Security,17 in which a 65 year old
businessman was unlawfully detained for 49 days, incarcerated at times with
criminals, the sum of R90 000 (R102 000) was awarded.  In Seria v Minister
of Safety and Security,18 a professional man who was arrested and detained
in a police cell for about 24 hours, for a time with a drug addict, was
awarded R50 000 (R52 000).

14   1972 (2) SA 327 (C).  The 1972 index is 113.
15   1977 (2) SA 900 (A).  Esp 914H-915A. The 1977 index is 194.
16   2000 (4) SA 68 (W).   The 2000 index is 2 719.
17   2003 (1) SA 567 (Ck).  The 2003 index is 3 392.
18   2005 (5) SA 130 (C).  The 2005 index is 3 681.

[20] Money can never be more than a crude solatium for the deprivation of
what in truth can never be restored and there is no empirical measure for the
loss.  The awards I have referred to reflect no discernable pattern other than
that our courts are not extravagant in compensating the loss.  It needs also to
be kept in mind when making such awards that there are many legitimate
calls upon the public purse to ensure that other rights that are no less
important also receive protection.
[21] In the present case Seymour was deprived of his liberty for five days.
Throughout his detention at the police station he had free access to his
family and medical adviser.  He suffered no degradation beyond that that is
inherent in being arrested and detained.   After the first period of about 24
hours the remainder of the detention was in a hospital bed at the Rand
Clinic.  There can be no doubt that the experience was throughout traumatic
and caused him great distress.  But yet there were no consequences that were
of sufficient concern to warrant medical attention after Seymour was
released.  As to the continuing depression and anxiety I am not sure that that
can be attributed solely to the arrest and detention.  Indeed, in his own
words, the making of an award will enable him to finally put the matter
behind him.  Bearing all the circumstances in mind in my view an
appropriate award is the sum of R90 000. That is so startlingly disparate

from the award made by the court below as to warrant interference with the
award on those grounds alone.
[22] Accordingly the appeal is upheld with costs.  Paragraph (a) of the
order of the court below is set aside and the following paragraph is
substituted:
‘(a) The sum of R90 000.’

_________________
R W NUGENT
JUDGE OF APPEAL

NAVSA JA  )   Concur
HEHER JA  )