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. also refer to relevant case laws

Answer 1

The primary aim of damages for Mr Nyathi in this situation would be to compensate him for the harm he suffered as a result of being wrongfully arrested and detained by the police. The damages would be directed at making Mr Nyathi whole again by providing financial compensation for the physical and emotional pain, as well as any financial losses he incurred due to the wrongful detention and assault.

In principle, Mr Nyathi would be able to claim various types of damages, including general damages for pain and suffering, special damages for any financial losses incurred, and possibly even punitive damages if it can be proven that the police acted recklessly or with malice in arresting him. It is unlikely that nominal damages would be used to punish the perpetrator in this case, as nominal damages are typically symbolic in nature and are awarded when the plaintiff has suffered little to no actual harm.

In the modern law of damages, there is a trend towards focusing on compensating the injured party rather than punishing the wrongdoer. This is reflected in the principles of restitutio in integrum (restoring the injured party to their original state) and the idea of vindicating the plaintiff's rights.

In the case of Nel v Waterberg Landbouwers Koöperatiewe Vereeniging Bpk en ’n Ander 1979 (4) SA 111 (T), the court held that damages for unlawful detention should be based on the actual losses suffered by the plaintiff, rather than being used as a punishment for the defendant. This principle would likely apply to Mr Nyathi's case as well, with the focus being on compensating him for the harm he suffered rather than punishing the police.

Overall, 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, with the potential for punitive damages if the police's actions were particularly egregious.