Mr Nyathi approaches you for legal advice. He was arrested over a weekend for an alleged crime

Question

he committed. He was detained for the entire weekend and released without charges the
following Monday when the police realised that they had arrested the wrong person. He was
severely assaulted during the weekend by others with whom he shared a cell.
Mr Nyathi wants to institute a claim against the police for the harm he suffered.
Explain the primary aim of damages to Mr Nyathi and whether it is directed at compensation or
punishment. Your answer must refer to the types of damages Mr Nyathi will, in principle, be able
to claim, as well as your opinion on whether an award of nominal damages could be used to
punish the perpetrator. Explain your answer with reference to the tendency in the modern law
of damages.
Refer to Visser & Potgieter

Answer 1

The primary aim of damages in Mr Nyathi's case would be to compensate him for the harm he suffered as a result of being wrongfully arrested and detained by the police, as well as for the injuries he sustained during his time in custody. Damages in civil law are generally aimed at compensating the victim for the harm they have suffered, rather than punishing the perpetrator.

In principle, Mr Nyathi would be able to claim various types of damages, including general damages for pain and suffering, as well as special damages for any financial losses incurred as a result of the wrongful arrest and assault. He may also be able to claim aggravated damages if the conduct of the police was particularly egregious or resulted in additional harm to him.

Nominal damages, on the other hand, are typically awarded in cases where a legal right has been violated but the plaintiff has not suffered any actual harm. In Mr Nyathi's case, nominal damages could potentially be awarded as a symbolic gesture to acknowledge the misconduct of the police and deter similar behavior in the future. However, nominal damages are not usually used as a form of punishment in the modern law of damages.

Overall, the primary aim of damages in Mr Nyathi's case would be compensation for the harm he suffered, with any additional damages awarded to reflect the severity of the misconduct of the police and to deter similar conduct in the future.