The common law has, for decades, protected anyone in police or prison custody. Such protection has been afforded, at least, to the extent that the imprisonment had not taken away the right sought to be protected. This position has not only been fortified by the Bill of Rights and relevant statutory and international instruments in modern times; it has also been acknowledged and affirmed by the highest court in South Africa. The crucial questions that arise in the present context are two-fold. First, to what extent does the law afford protection to the arrested person from injuries arising from the unlawful conduct of the police officer in whose custody the arrested or detained person is; or the prisoner who has been physically assaulted or raped by prison officer(s) or fellow inmates? Having determined that the right claimed is protected and that the State is therefore liable, the second question is: how would the court compensate, in monetary terms, the victim(s) of the constitutionally guaranteed right(s) implicated in these circumstances – human dignity; freedom and security of the person; freedom from slavery, servitude and forced labour; privacy rights and the right to life? Even though the circumstances where the prison authorities had failed to exercise due care in preventing harm to prisoner(s) are not the focus of this study, yet, there are abundant reported and unreported Southern African case law that provide answers to the vexed questions raised in this investigation.

Keywords: rights of persons; police or prison custody; residual liberty; protection of rights; arrested person; detained person; sentenced and convicted person; quantum of damages.