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[2018] ZAWCHC 186
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Dangaphele and Another v Minister of Police and Another (25783/2010) [2018] ZAWCHC 186 (12 December 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 25783/2010
In
the matter between:
Bongani
Dangaphele
Natalia
Sifunga
First
Plaintiff
Second
Plaintiff
And
The
Minister of Police
Constable
Booi
First
Respondent
Second
Respondent
JUDGMENT DELIVERED ON 12 DECEMBER
2018
BAARTMAN,J
[1]
On 16 January 2014, this court found in favour of the plaintiffs in
respect of the merits of their action for damages for unlawful
arrest
and malicious prosecution. I deal with the quantum of their general
damages in this judgment.
[2]
Each plaintiff claimed R380 000 for unlawful arrest and
detention – and R118 000 for malicious prosecution –
(R498 000) each. It was common cause that the plaintiffs were
arrested at Kraaifontein police station on 25 September 2009.
They
appeared in court on 28 September 2009 and remained in custody
until 19 October 2009 when the charges were withdrawn.
The facts
appear from the merits judgment to be as follows:
(a) The Crime Intelligence Gathering
Unit of the South African Police Services (
SAPS
) received
information that vendors were selling suspected stolen clothes in a
parking area behind Shoprite in Kraaifontein. On
25 September 2009,
the police arrested several vendors at the parking area. The
plaintiffs were not on the scene, however, the
police had information
that the owner of goods had left before the police arrived in a
purple Peugeot. The plaintiffs arrived at
Kraaifontein police station
in a purple Peugeot. The second defendant arrested them. He ‘
conceded
that when he arrested the plaintiffs, he did not know the identity of
the persons who had given the vendors the goods to
sell.’
The trial court found that the
defendants had not discharged the burden ‘
of showing that
the arrest of the plaintiffs was lawful
.’
(b) In respect of the
prosecution, the trial court found:
‘…
(2)
the facts show that objectively, the defendants had no reasonable
ground for the prosecution. Indeed, they have admitted that
the
evidence to sustain a conviction was lacking. …The plaintiffs
have thus established liability of the defendants for
malicious
prosecution.’
[3]
In these proceedings, the plaintiffs have described their ordeal
following their arrest as follows:
(a) The first plaintiff said that he
was wearing a T-shirt at the time of his arrest which took place in
front of a large crowd.
He was detained in a single cell with 20
unknown persons. The cell was cold and the blankets insufficient. He
suffers from an asthmatic
condition which was aggravated by people
smoking in the cell. He therefore requested police on duty to move
him but this request
was ignored.
(b) However, the next day an officer
enquired whether he was on chronic medication. He was not and was
also not moved to another
cell. After his first court appearance, he
was detained at Pollsmoor prison. The journey to the prison exposed
him to a confrontation
with gangsters. He took a seat in the van,
apparently reserved for senior gang members. He was ordered off the
seat. A fellow prisoner
in the van motioned to him to comply. He did
and came to no harm.
(c) On arrival at the prison, he was
subjected to a body search which he found demeaning. Inside the cell,
he experienced a shortage
of adequate facilities such as blankets and
privacy. His complaints about the cell conditions, which aggravated
his asthmatic condition,
were ignored once prison officials had
established that he was not on any medication.
(d) At the time of his arrest, the
first plaintiff had a contract to oversee examinations as a chief
invigilator for the 2009 final
and mid-year 2010 exams. Despite,
the contract he was not called to invigilate in June 2009. He earned
R320 per invigilation
session.
(e) The second plaintiff found the
circumstances of her arrest embarrassing – it took place in
full view of several members
of the public. She was detained with
several young girls. The available beds and blankets were
inadequate for the number
of persons in the cell. In addition, the
only toilet facility was filthy. The second plaintiff was
menstruating and despite requests
was not given sanitary towels. In
addition to these difficulties, she was anxious as she had left 2
young children at home, intending
her absence to be short, and she
had not made any supervision arrangements for them. She was also
breast feeding at the time. She
was arrested on Friday and only on
the Monday at court heard that neighbours had taken her children in.
(f) At Pollsmoor prison, she too was
subjected to a body search which she found demeaning. In the cell,
she was assaulted with soap
on a rope in front of young girls from
her neighbourhood. She sustained bruises to her body.
Discussion
[4]
The plaintiffs had been in
custody at the Kraaifontein police station for 3 days and 22 days at
Pollsmoor prison. Everybody has
the right ‘not to be deprived
of freedom arbitrarily or without just cause;
[1]
’
Personal liberty is ‘
an
individual’s most cherished right
…
[2]
’
The purpose of an award is to offer the deprived individual some
compensation for the injury to dignity and feelings not
to enrich.
Nugent AJ confirmed the position as follows
[3]
:
‘
[33] …It has been said
before that while ‘(m)oney can never be more than a crude
solatium for the deprivation of [liberty]…
and there is no
empirical measure for loss’,
nonetheless
‘our courts are not extravagant in compensating the loss.’
[5]
Therefore, awards in pervious matters are only a guide as each matter
should be evaluated on its peculiar facts. The impact
of the
deprivation of liberty on an individual is not determined by her/his
social status; instead, one must evaluate the actual
effect on the
individual.
[6]
In awarding R500 000 Swain
JA, said the following
[4]
:
‘
[38] In Minister of Safety
and Security v Seymour
2006 (6) All SA 558)
para 20, this court,
having reviewed a number of previous awards for unlawful detention,
concluded that there was no discernible
pattern other than that the
courts were not extravagant in compensating the loss. It was pointed
out in para 17 that the award
of general damages with reference to
awards made in previous cases was fraught with difficulty. The
facts of a particular
case needed to be looked at as a whole and few
cases were directly comparable.
[39] In Seymour the
respondent was detained for five days at a police station, during
which time he had free access to
his family and medical advisor.
He suffered no degradation beyond that which was inherent in being
arrested and detained.
After the first period of 24 hours the
remainder of the detention was in a hospital bed at the Rand Clinic.
This court reduced
the award of damages from R500 000 to R90
000.
[40] Mr Woji described what can only
be regarded as appalling conditions he was forced to endure whilst in
detention. Cells were
overcrowded, dirty and with insufficient
beds to sleep on. He was subject to the control of a gang, whom he
said sodomised
other prisoners. As a result, he suffered the
appalling, humiliating and traumatic indignity of being raped on two
occasions,
which he did not report to the prison authorities, because
he feared retaliation from gang members. As a consequence, he has
difficulty
in enjoying sexual relations with his girlfriend. He also
witnessed another prisoner being stabbed, which made him fearful
for his safety. After eight months he was allocated a single cell.
His situation then improved, because he had a bed to sleep on
but he
was isolated and lonely.
[41] Mr Woji's description of his
experiences and the conditions he endured whilst in detention were
not disputed by the minister's
legal representative when he was
cross-examined. No evidence was led by the minister to contradict any
of his allegations. Mr Woji
was detained for 13 months and suffered
humiliating and degrading experiences. A suitable award of damages is
the sum of R500 000.’
[7]
I have considered the personal circumstances of each plaintiff in
this matter, the length of imprisonment and the effect on
their lives
among others. The second plaintiff said that the police went to her
home while she was in custody. On her release,
she was ostracised by
her neighbours. The second plaintiff said that he was still
traumatised by the ordeal.
[8]
Mr Oliver, the defendants’
counsel, relied on the Rudolf
[5]
matter for the submission that:
‘
[in Rudolf] the plaintiffs were
arrested at 17h00 on a Friday and released on bail at 12h00 on the
next Tuesday, and the court ordered
that they each be compensated in
the amount of R100 000.00 on that claim.
In the present case, Plaintiffs were
arrested at around 10:00 on the morning of Friday, 25 September 2009
and remanded in custody
at no later than 12:00 on the Monday, 28
September 2009, a period of 15 hours less than in the Rudolf case.
It is submitted that on the basis of
the Rudolf case, an award of no more than R75 000.00 each would
be appropriate in the
present case.
…
adjusted for inflation at a
rate of 5.5% per annum, the amount …should be adjusted to
R112 125.00 for each Plaintiff.’
[9]
However, for the 22 days
detention at Pollsmoor prison, he submitted that an award of
R18 500.00 was sufficient, relying on
the Rahim matter
[6]
:
The submission went as follows:
‘
[the SCA] ordered an amount of
R14 000.00 for 20 days detention and an amount of R16 000.00
for 23 days detention.
In this matter, the detention for 22
days, after the Plaintiffs’ first court appearance should
warrant an award of R15 000.00
each, to be adjusted for
inflation since 2014, at 5.5% per annum. That should increase to
about R18 500.00 each. …
The total amount due to each Plaintiff
for unlawful arrest and malicious prosecution should therefore
…R130 650.00’
[10]
The defendants’ reliance
on the Rahim award is an indication that previous awards are only a
guide and that each matter should
be determined on its own merits.
The appellants in Rahim were foreign nationals who had unsuccessfully
applied for asylum in South
Africa. Pending deportation, they were
detained unlawfully as the director-general had not made a
determination in respect of the
facility in which they were to be
detained
[7]
.
Navsa JA bemoaned the paucity of information concerning the
conditions under which the appellants were detained as follows:
‘
[25] …the appellants had
failed to present evidence concerning the conditions under which they
were held and furthermore
had failed to testify about the personal
impact of detention...
[26] …the limited information
referred to earlier in this and the preceding paragraph is the sparse
basis upon which we are
called upon to make a determination
concerning quantum.’
[11]
Fortunately, I do have
information upon which to make a determination. It follows that the
Rahim awards cannot assist in this matter.
The defendants sought to
distinguish the facts in this matter from those in the Rudolf matter.
The circumstances in the latter
were: the police arrested the
appellants for a contravention of the Gatherings Act. It was common
cause that 8 persons partook
in the gathering. However, a gathering
for purposes of the Gatherings Act ‘
means
any assembly, concourse or procession of more than 15 persons
.’
The court found that there was ‘no evidence of a
‘gathering’, no offence had been committed...
[8]
’
Therefore, the court awarded R50 000 in respect of malicious
prosecution. The circumstances of the Rudolf matter are
distinguishable, so the submission went, from the facts in this
matter. There are also similarities, as indicated above; the
plaintiffs
were arrested because they were in a purple Peugeot. The
trial found at para 22:
‘
Purple is an unusual colour for
a car. If indeed the plaintiffs had used the purple Peugeot to
deliver the goods to the flea market
as alleged, why would they
knowingly have exposed themselves to arrest and prosecution by going
to the police station with the
car? ... the defendants … [did
not] even raise a suspicion that the plaintiffs were the persons who
gave the goods to the
vendors.’
[12]
I intend to heed the call to avoid extravagance without undermining
the seriousness of the violation. I am persuaded to give
costs on the
High Court scale despite the award. I have considered the right
violated and am persuaded that the plaintiffs have
not been
unreasonable in the amount claimed. The plaintiffs’ assessment
of the amount that will give them ’
much needed solatium’
must compete with the call to avoid extravagance. I, for the
reasons stated above make the following order, against the defendants
jointly and severally, the one paying the other to be absolved:
(a) In respect of the unlawful arrest
and detention – 25 September to 28 September – each
plaintiff is awarded R70 000.
(b) In respect of the malicious
prosecution – 22 days detained in Pollsmoor prison – each
plaintiff is awarded R130 000.
Total – R200 000 per
plaintiff.
(c) Each plaintiff is awarded costs of
the action on the High Court scale.
_____________________________
BAARTMAN
J
[1]
Section 12 (a) of the Constitution of South Africa, 1996.
[2]
Mandleni v Minister of
Police
2011 (2) SACR 262
(SCA).
[3]
Minister of Home Affairs v
Rahim
2016 (3) SA 218.
[4]
Woji v Minister of Police
2015 (1) SACR 409 (SCA).
[5]
Rudolf and Others v
Minister of Safety and Security and Another
2009 (5) SA 94
(SCA).
[6]
Rahim and Others v Minister
of Home Affairs and Others
2015 (4) SA 433 (SCA).
[7]
Section 34(1)
of the
Immigration Act 13 of 2002
.
[8]
See para 14 of the Rudolf matter.