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[2021] ZAWCHC 128
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Van Rensburg v Obiang (21748/2014) [2021] ZAWCHC 128 (18 June 2021)

In the High Court of
South Africa
(Western
Cape Division, Cape Town)
Case
No: 21748/2014
In
the matter between:
DANIEL
WELMAN JANSE VAN RENSBURG

PLAINTIFF
and
TEODORIN
NGUEMA OBIANG

DEFENDANT
Date of hearing: 08 March
2021
Delivered
electronically: 18 June 2021
JUDGMENT
LEKHULENI
AJ
INTRODUCTION
[1]
The plaintiff claimed for damages suffered whilst in a vulnerable
state and at the
mercy of the defendant in Equatorial Guinea.
By virtue of the final order of attachment
ad
fundandam jurisdictionem
granted by
this Court on 17 October 2017 in respect of the immovable properties
of the defendant, this Court has jurisdiction to
hear the matter.
This decision was taken on appeal by the defendant and the full
bench of this Court upheld the final attachment
order on 20 August
2019.
[2]
The claim emanated from human rights abuses, torture, inhumane and
degrading treatment
that he suffered while he was kept as a prisoner
and / or detained without trial for a long period of time.
Pursuant thereto,
there were numerous applications before this Court,
the Supreme Court of Appeal and the Constitutional Court leading to
this hearing.
The latter was an application to strike out the
defendant’s defence, failing the request by the plaintiff to
the defendant
to discover some crucial documents.  This Court
granted the said application on 17 August 2020.  Since there
were no
issues raised further on the merits, after a long-drawn-out
history of litigation, the matter for determination before this Court

was on the merits of the plaintiff’s claim and on quantum.
When the matter appeared before me it proceeded on an unopposed

basis.
[3]
Effectively, the plaintiff claimed damages for an amount of
R65 000 000.00
(
sixty-five
million rand
) arising out of his
multiple unlawful arrests, imprisonment and torture in Equatorial
Guinea in facilities under the command and
control of the defendant.
The defendant served as the second Vice President of Equatorial
Guinea for Defence and Security. The
defendant also served as the
political head and has been in charge of the armed forces, police,
security, border control, prisons
and detention facilities in
Equatorial Guinea including the facilities in which the plaintiff was
detained and tortured.
[4]
The plaintiff avers in his summons that in October 2013 he was
arrested by the Rapid
Intervention Force
(“RIF”),
a division of the Equatorial Guinea police at the instance of one
Gabriel Mba Bela
(“Angabe”)
an uncle of the defendant. He stated
that his arrest was unlawful and unsupported by any grounds. He spent
a night in Guantanamo
prison and was later released upon being
induced to sign a document acknowledging that he received money from
Angabe in respect
of a business deal from which Angabe wanted to
renege. He was later placed under
de
facto
house arrest in an apartment that
belonged to Angabe in Malabo where he remained until about 7 November
2013.
[5]
On or about 07 November 2013, he was re-arrested by the RIF and
returned to Guantanamo
where he was manhandled into a room and
handcuffed in both hands. The following day the plaintiff was brought
before a Judge who
released him back to house arrest in Angabe’s
apartment. Angabe caused a charge of fraud to be laid against the
plaintiff.
When the plaintiff appeared before the same Judge,
the Judge dismissed the charge and gave the plaintiff permission to
leave.
The Plaintiff subsequently approached the South African
Embassy in Malabo and he stayed for about two weeks.
[6]
The plaintiff pleads further that he was subsequently issued with an
emergency passport
after the Equatorial Guinea Minister of Foreign
Affairs and the Minister of Security confirmed to the South Africa
Embassy that
the plaintiff could leave their Country. While waiting
to board his flight at the airport, the plaintiff was accosted by
Angabe
and was detained on Angabe’s instructions in the office
of the police commander of the airport.  Angabe seized the
plaintiff’s
cellphone and as a result, plaintiff was unable to
be assisted by the South African embassy officials.  However, he
surrendered
his personal belongings to the South African Consular
officials.  The plaintiff was then taken to Guantanamo by the
members
of the RIF where he attended at the Judges’ Chambers
and was later locked in a small holding cell. The plaintiff avers
that
later in the day, he was taken to Black Beach prison where he
was detained from 18 December 2013 to 28 February 2014.  According

to him, there were no reasons advanced why he was detained or for how
long he would be detained. The plaintiff contended in his
summons
that he endured inhumane and dehumanizing treatment over an extended
period of time at Black Beach prison.
[7]
On 28 February 2014, the plaintiff was brought before a Judge in
Chambers who ordered
his release, but placed him under house arrest
where he remained under surveillance.  On 03 July 2014 he was
called to appear
before a Judge in Chambers and he was arrested again
and sent back to Black Beach prison where he was detained from 04
July 2014
to 26 August 2015.  He was not charged or informed of
the reasons for his detention or how long he would be detained. He
was
eventually released on or about 26 August 2015 without being
charged and he departed from Equatorial Guinea back to South Africa

on 26 September 2015. In essence, he was detained for a total of 549
days, of which 423 he was imprisoned in Black beach prison.
A
BRIEF SUMMARY OF EVIDENCE
[8]
For the sake of brevity, I will not repeat the evidence of the
witnesses verbatim,
but will briefly summarise the evidence for the
purposes of this judgment. The plaintiff testified and even submitted
a damages
affidavit in support of his claim. He confirmed the
contents and correctness of his affidavit. He testified that the
defendant
Obiang Nguema was at all relevant times the Minister in
charge of state security and prisons in Equatorial Guinea and was
responsible
for his unlawful arrest, imprisonment and torture. The
defendant controls the RIF that arrested him several times as well as
the
prison in which he was held.  The plaintiff testified that
he has been involved in various business activities in several
African countries. He was initially involved in DSTV contracts and he
then later was involved in aviation. He had a good name in
business
and due to his business acumen and connection in the oil Industry,
during 2011, Angabe, asked him to assist them in setting
up a private
airline. However, they did not have a business licence. The airline
was to be called Coriscair. Angabe was happy with
the plaintiff’s
previous business contracts. Angabe accordingly signed a document
authorising plaintiff to enter into the
agreement that would enable
Coriscair to become fully operational. Angabe was to be the principal
shareholder and financier of
the business.
[9]
From 2011 to 2013, the plaintiff worked tirelessly to secure the
operators’
licence for the proposed airline. It was a tedious
exercise that involved many flights from Equatorial Guinea to South
Africa.
During July 2013, the Equatorial Guinea aviation authority
issued a temporary air operator’s licence. On 02 October 2013,

the Equatorial Guinea aviation authority granted authorisation to
operate the airline via Cemair.  The plaintiff prepared
to
return to South Africa in October 2013 to take delivery of the
aircraft in order to start the business with Angabe.  He
went to
Angabe and gave him all the necessary documents and the approval from
the South African Civil aviation.  Shortly thereafter,
on 24
October 2013, Angabe called him to his house and reneged from the
business that they planned. According to plaintiff, this
was
apparently due to shortage of funds to finance the intended business.
Angabe demanded all the money that he advanced to the
plaintiff in
preparation for the private airline. The plaintiff could not remember
how much Angabe demanded from him.
[10]
The plaintiff testified that he utilised the money in question for
flying back and forth between
the two countries in preparation of
this airline venture. The plaintiff explained to Angabe that he
expended the money and did
not have same. He told Angabe that he used
the bulk of the funds to facilitate the lease of the aircraft which
included plaintiff’s
agreed monthly fee. An angry confrontation
ensued and shortly thereafter, Angabe called the RIF private force
which the defendant
used as his private security to arrest the
plaintiff.  The plaintiff testified that the defendant and
Angabe are known to
be close and are partners in several joint
business ventures. The RIF arrested the plaintiff and took him to
Guantanamo prison.
Angabe attended at Guantanamo prison and accused
the plaintiff of being a liar and thief. The defendant called
Guantanamo prison
and ordered that the plaintiff be detained. The
plaintiff testified that he was tightly handcuffed so much so that
his wrists were
cut. His hands were handcuffed to a rail in one of
the rooms in a dungeon. He witnessed inmates being tortured in his
presence
in prison. He was later thrown in a small crammed cell with
about thirty inmates. The plaintiff was further tortured by other
inmates
in the cell. His arms ached from being handcuffed. He found
it difficult to breathe in the room as it was hot and humid. He could

not even swat a cloud of mosquitos away as his hands were cuffed
behind his back. The floor of the cell was slippery and covered
with
human blood and vomit. He testified that the toilets were full of
excrements. He had to ask an inmate to unbutton his jeans
so that he
could relieve himself. He spent sleepless nights sitting against the
wall. It was pitch dark in the cell and sweaty
bodies pressed up
against him.
[11]
It was his testimony that after he was forced to sign a document in
prison by a personal assistant
of Angabe, he was released to go to
his apartment where he lived before he was re-arrested. After he was
released, he suffered
a severe bout of malaria and he was sweating
and vomiting. On 06 November 2013 he was informed that Angabe
demanded a meeting with
him. He attended the meeting and when he
arrived at Angabe’s house, the RIF handcuffed him and threw him
into the back of
the police van and he was taken back to Guantanamo
prison. He experienced the same appalling conditions at Guantanamo
prison as
before. The cell in which he was incarcerated was even more
overcrowded than the previous cell.
[12]
On 08 November 2013 he was taken to a Judge and the Judge advised him
that Angabe had laid a
charge of theft against him. He told the Judge
that he received a deposit from Angabe that was utilised to procure
an aircraft
and for payment of the licence and permits in preparation
of the airline business. The Judge found him not guilty and released
him. After he was released, he took refuge at the South African
Embassy. On 18 December 2013, the embassy issued him with an
emergency
passport confirming that he was free to leave Equatorial
Guinea. However, the following day at the airport as he was making
his
way passing the securities and to the aeroplane, Angabe appeared
from the terminal building and instructed a police man to arrest
the
plaintiff. Thereafter, the RIF arrived, manhandled him and took him
to custody at the airport. He was later taken to Black
Beach Prison
by police officers. Black Beach prison is known to be one of the
cruellest prisons in the world. According to his
testimony, his
experience in this prison indeed confirmed the fact that it was one
of the cruellest in the world. The prison cells
were tiny and
overcrowded. Inmates were packed into every available space.
[13]
The plaintiff could recall that there were about four hundred
prisoners at any given time in
that prison. There were only two
bathrooms to serve this prison population. He witnessed horrific
incidents in this prison. Among
others, he witnessed inmates being
beaten and others stabbing each other. He witnessed inmates being
raped; some inmates executed
by the firing squad; and the armed
guards shooting and killing each other after drinking beer. He
further witnessed many dead bodies
of prisoners who succumbed from
being beaten removed from the cell. According to the plaintiff, this
was a fact of life in that
prison and everybody expected to die at
any time.
[14]
During this period, the Ambassador of South Africa visited him in
prison and told him that it
was the defendant who was behind his
incarceration. On 24 September 2015 while the defendant and Angabe
were out of the country
and with the assistance of other officials,
the plaintiff testified that he managed to escape this gruesome
torture and he left
Equatorial Guinea.
[15]
It is apparent that the incident of his incarceration and torture has
affected him tremendously.
He is suffering from the after effects of
this ordeal including post-traumatic stress disorder which makes it
difficult for him
to work in his professional field in which he was
trained.  For instance, the sound of gate closing and locking
causes him
great anxiety. It was his testimony that he will not
forget the slamming of the prison doors. He has great difficulty with
concentration
and focusing on a task as a result of the ordeal. He
suffers from panic attacks which he sometimes experience several
times daily.
This caused him great hardship and he no longer feel
himself.  The result of which he gets disorientated in his
house.
[16]
Mignon Coetzee
(“Ms Coetzee”)
also testified in support of the plaintiff’s evidence. She is a
registered Clinical and Forensic Psychologist. She was asked
to
prepare a neuropsychological evaluation of the plaintiff. Ms Coetzee
confirmed the contents and the correctness of the report
that she
prepared.  In brief, her evidence was that she assessed the
plaintiff in order to determine the possible neuropsychological

effects of the emotional and physical trauma he suffered during his
incarceration at Black Beach prison in Equatorial Guinea. Based
on
her clinical evaluation, the plaintiff experienced severe and
persistent psychological problems including Post-Traumatic Stress

Disorder, Major Depressive Disorder and Panic Disorder. In her expert
opinion, these psychiatric symptoms directly stem from the
protracted
and significant trauma the plaintiff suffered during his
incarceration.  Ms Coetzee corroborated the evidence of
the
plaintiff that subsequent to the plaintiff’s release, he has
been experiencing cognitive and neuropsychological difficulties

including reduced concentration and mental stamina, distractibility,
difficulty in terms of multi-tasking and impaired memory.
[17]
Ms Coetzee noted that individuals who have suffered severe trauma and
present with trauma-related
disorders, have a reduced stress
threshold as well as reduced mental or neurocognitive efficiency. Her
clinical observation was
that the plaintiff’s capacity to
utilise his innate cognitive ability is severely compromised,
primarily due to the enduring
neurobiological effects of stress and
trauma. In her expert opinion, the plaintiff will not be able to
function in a competitive
work environment. She noted further that in
spite of having received trauma counselling and psychotherapy since
his release, the
plaintiff remains both psychologically and
cognitively affected. Furthermore, in spite of further treatment, it
is highly improbable
that plaintiff’s cognitive aspect will
improve significantly. Based on her assessment, she is of the view
that the plaintiff’s
chances of competing in the open labour
market has been permanently and irreversibly altered. The plaintiff’s
reduced stress
tolerance and his related neuropsychological
difficulties constitute a significant handicap.
[18]
Ms Nadya Wynchank
(“Ms Wynchank”)
was present in court however her evidence was presented on affidavit
in terms of Rule 38 of the Uniform Rules of Court.  She
is also
a registered Clinical and Forensic Psychologist. She was asked to
conduct a Psychological and diagnostic assessment of
the plaintiff in
order to provide the court with an expert opinion regarding the
impact of the plaintiff’s arrests, detentions
and incarceration
in Equatorial Guinea on his mental health.  Ms Wynchank recorded
that the plaintiff underwent a mental state
examination to establish
his functioning in various domains. The plaintiff was observed to be
tangential and at times confused.
His concentration was observed to
be variable. He seemed to lose focus easily and was observed to
frequently digress when answering
questions. Ms Wynchank reported
that the plaintiff’s personality, psycho-social and
occupational functioning has been severely
impacted by his experience
in Equatorial Guinea. The quality of plaintiff’s life has been
severely diminished as a result
of his psychiatric disorders.
According to her, the plaintiff seems to have lost his vitality, lost
interest in the world and in
his capacity to engage with courage,
confidence and enthusiasm. This can be understood as a direct
consequence for his trauma and
the resulting post-traumatic stress
disorder, depression and anxiety disorders that followed. The
plaintiff’s incarceration
at Black Beach prison has transformed
him from a dynamic confident capable businessman and entrepreneur to
an anxious, socially
isolated fearful and co-dependant man whose
capacity to experience joy or pleasure is limited or absent.
Ms Wynchank
noted in her report that as a result of this ordeal, it
is highly unlikely that the plaintiff will be able to compete in the
job
market.
[19]
The plaintiff also filed a report of Johan George Schwalb an Actuary,
and a fellow of the Actuarial
Society of South Africa. He was
instructed to estimate the present value of earnings that the
plaintiff would have accrued had
he not been incarcerated in Black
Beach prison in Equatorial Guinea during the periods 18 December 2013
– 28 February 2014,
and 04 July 2014 to 26 August 2015. In his
report dated 15 November 2020, Mr Schwalb estimated the plaintiff’s
past earnings
from December 2013 – November 2020 to be US $ 2
628 015 and future earnings from December 2020 – age 65 to be
US $
3 341 337, with a total amount of US $ 5 969 352.  The
actuary concluded that the exchange rate from a US dollar to rand at

that date was R15.50 which resulted in a total of
R92
534 956.00.
However, the current
exchange rate from a US dollar to rand is R14.24 which currently
resulted in a total amount of
R84 979
515.99.
Be that as it may, it was
stated in the plaintiff’s written submissions that he has
reduced his claim for patrimonial damages
to R35 million.
APPLICABLE
LEGAL PRINCIPLES AND ANALYSIS
[20]
The plaintiff’s case and his evidence remains uncontested. From
the evidence presented,
it is clear that the plaintiff was severely
tortured.  It remained common cause that the arrest of the
plaintiff was ordered
by the defendant. In addition, Angabe and the
defendant are close business partners. The plaintiff was arrested
more than once
by the RIF, who are the private forces of the
defendant in instances where the plaintiff had no dealing whatsoever
with the defendant,
but with Angabe. The plaintiff was clear in his
testimony that he had business ties with Angabe. When the airline
deal fell apart
and there were some disagreements subsequent thereto,
the plaintiff was incarcerated in the most appalling conditions at
the instance
of Angabe and the defendant. That incarceration was
effected, not by an order of court or a judge or in terms of some
legislative
provision, but by the acts of the RIF having received
instructions from the defendant.  As stated above, the RIF is a
division
of the security services in Equatorial Guinea falling under
the direct control of the defendant. The RIF was subject to the
control
of the defendant and nobody else. The order of the defendant
to arrest the plaintiff constituted a wrongful act that attracted
delictual liability.
[21]
To this end, I agree with the views expressed by Gamble J in
Obiang
v Van Rensburg and Another
(A338/2018)
[2019] ZAWCHC writing for the unanimous full bench in an appeal
against the confirmation of the attachment order to
find
jurisdiction, when it stated that, the RIF is a division of the
security services in Equatorial Guinea Republic falling under
the
direct control of Mr Obiang (the defendant). The learned justice
noted that in ordering the RIF to arrest and detain the plaintiff,

the defendant was advancing private interests and not the security of
the state. Gamble J, also noted that Mr Obiang’s order
to the
RIF to detain Mr Van Rensburg (the plaintiff in this case)
constituted a wrongful act on his part which attracted personal

liability in delict. The court noted further that Mr Obiang abused
his power and ensured that the plaintiff was incarcerated, abused
and
tortured. The plaintiff was held in appalling condition for an
extended period of time in an endeavour to induce him to settle
a
private debt that arose from an agreement that went wrong. The court
concluded that the wrongfulness of the conduct of the defendant
is
self-evident and in addition, there was no evidence presented that
sought to justify the conduct of the defendant.
[22]
It is undeniable that the plaintiff was tortured outside the boarders
of the Republic of South
Africa. As explained above, this court’s
jurisdiction to hear this matter is based on the final attachment
order that was
confirmed and endorsed by the full bench of this
court. Torture is a crime against humanity. Further, t
here
is a clear and absolute prohibition of torture in international law.
The prohibition applies even in times of national emergencies
or
wars, and there are no exceptions or justifications.
Article 2(2) of the United Nations
Convention Against Torture and Other Cruel,
Inhumane or Degrading Treatment or Punishment of 1984 ratified by 136
countries including
South Africa and Equatorial Guinea provides that:
‘
No
exceptional circumstances whatsoever, whether a state of war or a
threat of war, internal political instability or other public

emergency, may be invoked as a justification for torture.”
[23]
Article 4 of this Convention requires States parties to criminalize
the offence of torture in
their domestic law, including attempts and
complicity as well as participation. As defined in the Convention,
the crime has two
objective elements. First, it comprises ‘any
act by which severe pain or suffering, physical or mental’, is
inflicted
on a person; and second, it is committed ‘by or at
the instigation of or with the consent or acquiescence of a public
official
or other person acting in an official capacity’. The
Prevention of Combating and Torture of Persons Act 13 of 2013
in
South Africa came into force on 29 July 2013. This Act aims to give
effect to South Africa’s obligations in terms of the
United
Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment of
1984. Section 3 of
this Act provides that for the purpose of the Act, torture means any
act by which severe pain or suffering, whether
physical or mental, is
intentionally inflicted on a person.
[24]
Meanwhile, section 12(1)(d) and (e) of the Constitution echoes the
prohibition of torture provision
contained in the
United
Nations
Convention Against Torture and
Other Cruel, Inhumane or Degrading Treatment or Punishment of 1984.
This section
guarantees
the
right to freedom and security
which includes the right to be free from all forms of violence from
either public or private sources
and the right not to be tortured in
any way.
Article 5 of
the Universal Declaration of Human Rights also acknowledges that no
one shall be subjected to torture or to cruel,
inhumane or degrading
treatment or punishment. In
Mohamed
and Another v President of the Republic of South Africa and Others
(Society for the Abolition of the Death Penalty in South
Africa and
Another Intervening)
[2001] ZACC 18
;
2001 (3) SA 893
(CC), the Constitutional Court noted that torture is
defined in article 1(1) of the
Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment of
1984
as including any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person
for such
purposes as punishing him for an act he or a third person has
committed or is suspected of having committed.
[25]
In my view, the evidence that was presented by the plaintiff is
overwhelming that he was arrested,
tormented and tortured. The main
reason for his arrest was to extort money from him.  He was not
charged or arrested pursuant
to an order of court or to any statutory
provision. Gathering from the documents filed on record including the
documents filed
by the defendant, there is nothing presented before
court that proved or suggested that the arrest and detention was
justified.
The fraudulent charges that Angabe concocted and levelled
against the plaintiff were found to be devoid of substance and were
dismissed
several times by the courts in Equatorial Guinea. The
plaintiff alluded to the fact that he appeared before a number of
judges
in Equatorial Guinea and they released him and even permitted
him to leave the country.
[26]
However, he was rearrested at the instance of the defendant who was
pursuing his personal interest
and whims. The plaintiff was tortured
upon arrest in Guantanamo prison and also in Black Beach prison on
several occasions. He
was detained for a total of 549 days, 423 of
which he was imprisoned in Black Beach prison. The conditions in
prison were so horrific
and appalling. His detention was based on an
alleged theft of money, which on its own was unfounded. He was
tightly handcuffed
so much so that his wrists were cut. His hands
were handcuffed to a rail in one of the rooms in a dungeon. He saw
inmates being
tortured there. He was thrown in a small crammed cell
with countless inmates. He was tortured by other inmates in the cell
at the
instruction of the defendant. His arms ached from being
handcuffed. He found it difficult to breathe in that cell as it was
hot
and humid inside. He could not even swat a cloud of mosquitos
away as his hands were cuffed behind his back. He had to ask other

inmates to assist him to take of his jean so that he could relieve
himself. In fact, the plaintiff explained personally and further

filed an affidavit to this court in detail on how he was tortured and
manhandled by the special forces of the defendant (RIF).
[27]
On a conspectus of all the evidence placed before court, I am of the
view that the defendant
is liable to compensate the plaintiff for
unlawful arrest and detention and for the torture of the plaintiff.
This leads me to
the determination of the quantum of damages.
DETERMINATION
OF QUANTUM
[28]
In considering quantum, it must be stressed that unlawful arrest and
detention constitutes a
serious inroad into the freedom and the
rights of an individual.
It is trite that
the inquiry into unlawful arrest and detention seeks to determine the
extent to which the various affected rights
of personality were
impaired and their duration. See
Takawira
v Minister of Police Case number A3039/2011
at Para 41 (South Gauteng High Court). The inquiry involve both a
subjective element based on the emotional effect of the wrong

committed to the plaintiff such as the humiliation or anguish of
suffering the injustice, the loss of self-esteem and respect,
and an
objective impairment based on the external effect of the wrong such
as loss of reputation in the eyes of the others.
[29]
Neethling, Potgieter and Visser in
Neethling’s
Law of Personality, (Neethling’s Law of Personality 2 Edition
(2004) at 121-122) identify the factors affecting the amount of the
award as relating to the invasion of a broad category of rights
which
may be distilled to include, the right to personal liberty, the right
not to be arbitrarily arrested without lawful cause,
the right to
dignity and the right to one’s reputation which include the
right not to be defamed - See
Takawira
(supra)
at para 36.
[30]
In
Thandani v Minister of Law and Order
1991 (1) SA 702
it was
said that in considering quantum, sight must not be lost of the fact
that liberty of the individual is one of the fundamental
rights of a
man in a free society which should be jealously guarded at all time
and there is a duty on courts to preserve this
right against
infringement. The Supreme Court of Appeal in
Van Eeden v Minister
of Safety and Security
[2002] 4 AII SA 346 (SCA) at para 12
echoed similar sentiments and went on to say that in the current
constitutional dispensation,
an unlawful interference with a person’s
right to liberty is not only a common law issue, but is also a
constitutional infringement.
The effect of constitutionally
entrenching rights, is that the entrenchment of fundamental rights
and values in the Bill of rights
enhances their protection and afford
them a higher status.
[31]
In
Rahim and 14 Others v Minister of Home Affairs
2015 (4) SA
433
(SCA) at para 27 the Supreme Court of Appeal stated as follows:
“
The
deprivation of liberty is indeed a serious matter. In cases of
non-patrimonial loss where damages are claimed, the extent of
damages
cannot be assessed with mathematical precision. In such cases the
exercise of a reasonable discretion by the court and
broad general
consideration play a decisive role in the process of qualification.
This does not, of course absolve a plaintiff
of adducing evidence
which will enable a court to make appropriate and fair award. In
cases involving deprivation of liberty the
amount of satisfaction is
calculated by the court ex aequo et bono. Inter alia, the following
factors are relevant: (i) circumstances
under which the deprivation
of liberty took place; (ii) the conduct of the defendants; and (iii)
the nature and duration of the
deprivation.
[32]
For the sake of completeness, I deem it prudent to consider the
factors enunciated by the Supreme
Court of Appeal in the
Rahim
case vis-à-vis the present matter ad seriatim with regard to
the deprivation of liberty.
(a)
Circumstances under which the
deprivation of liberty took place
[33]
The plaintiff explained to the court in detail how he was arrested at
different intervals and
detained in Guantanamo prison twice and also
in Black Beach Prison. There was no basis in law or fact for his
arrest or deprivation
of liberty. In my view, the deprivation of
plaintiff’s liberty was nothing less than malicious and without
reasonable and
probable cause. The evidence presented was that the
plaintiff appeared before various judges pursuant to fraudulent
charges of
theft and fraud levelled against him and they were found
to be baseless and without merit. The arbitrariness of the
plaintiff’s
arrest and detention cannot be overemphasized. The
plaintiff was tremendously affected by the prison conditions. Among
others,
the plaintiff alluded to the fact that he was incarcerated in
a prisons cell with about four hundred prisoners who had to use two

bathrooms, of which the toilets were constantly blocked and
overflowing. As a result thereof, he frequently vomited when in the

bathroom. There was no running water or toilet paper. Inmates used
their hand to clean their buttocks and then wiped their hands
on the
walls. In fact, they urinated on the floor.  As a result, he got
sick.
[34]
I must stress the fact that the effects of the torture on the
plaintiff was evident in court
when he gave his testimony. The court
had an opportunity to observe the plaintiff in the witness box when
he led his evidence.
He appeared to be tense, nervous, anxious
and he expressed himself with difficulty during his testimony. The
after effects of his
arrest are still overwhelming on him and it
seems this will take a long time to normalize if it does not remain
with him for the
rest of his life.
In his testimony, in particular in his
damages affidavit, he informs the court that he suffers acutely from
the after effects of
his arrest including post-traumatic stress
disorder that makes his personal life extremely difficult.
[35]
Without a doubt, this rendered impossible for him to work in the
field in which he was trained
to work and in which he practiced for
most of his career. He indicated that he suffered from fatigue and
dizziness brought on most
often by frequent panic attacks. The
plaintiff also alluded to the fact that he is always tense and
nervous, imagining imminent
danger at every turn. For instance, he
finds himself looking anxiously outside before he goes to bed and
when he wakes up. He obsessively
rechecks the door locks in the house
and he has great difficulty in trusting anyone even his wife and
family.
(b)
The conduct of the defendant
[36]
I must say with respect that this is an extraordinary case of
unlawful arrest and detention.
This is a case that epitomizes a sheer
abuse of power and authority by the defendant. The plaintiff was
fortunate to have survived
this ordeal. The defendant defied orders
issued by judges in his country who after listening to the
plaintiff’s case, found
that there was no basis for him to be
arrested or detained. They released him. Despite the fact that they
released him and gave
him permission to leave the country, the
defendant abused his power and rearrested the plaintiff in order to
demonstrate his total
disregard for the rule of law.
[37]
I might as well
emphasise
that the defendant made efforts in this court to evade liability.
Whilst both sides should be heard and I accepted that the defendant

equally enjoyed his right to a fair trial, however it should be
stressed that the conduct of the defendant in this court was highly

reproachable. The defendant defied the orders of this court and this
resulted in the striking out of his defence. The defendant
appeared
to be a law unto
himself
and that conduct cannot be tolerated.
[38]
Importantly, what is somehow disturbing is the fact that even at the
time when the plaintiff
was scheduled to fly out of Equatorial Guinea
and on his way to board the aircraft, Angabe
instructed
the police to arrest the plaintiff for no just cause. The RIF being
the special protection unit
of
the defendant arrived, manhandled the plaintiff and roughly
handcuffed him and took him to Black Beach prison. The defendant
was
hell-bent
to ensure that the plaintiff does not leave prison and that he is
tortured and abused. The plaintiff only managed to escape at
the time
when the defendant and Angabe were out of the Equatorial Guinea and
on a visit to Brazil.
(c)
The nature and the duration of
the deprivation.
[39]
The right of an individual to personal freedom is a right which has
always been jealously guarded
by our courts, and our law has always
regarded the deprivation of personal liberty as a serious injury -
See
Ochse v King William’s Town
Municipality
1990 (2) SA 855
at 860.
In my view, the incarceration had a
negative effect and it left the plaintiff severely traumatised. His
reputation in the community
and in the circle of his peers was
dented. His right to dignity and to be free from all forms of
violence was seriously infringed.
[40]
The unlawful arrest and detention amounted to a serious invasion of
his constitutional rights.
The plaintiff was in custody for 549 days
for no reasonable or justifiable cause. For all the 549 days in
custody, the defendant
wanted him to be tortured, tormented and
manhandled. In my view, the deprivation of freedom and liberty is a
serious matter especially
viewed from our constitutional prism. The
nature and the circumstances under which the plaintiff was deprived
of liberty are described
in the summary of evidence above and will
not be repeated herein. It must however be stressed that this court
is astute to the
merits of this case.  In so doing, it has to
ensure that the award it makes for such infringements reflect the
importance
of the right to personal liberty and the seriousness with
which any arbitrary deprivation of personal liberty is viewed in our
law - See
Minister of Safety and Security v Tyulu
2009 (2)
SACR 282
(SCA).
[41]
The non-pecuniary nature of general damages makes it difficult to
assess with certainty an appropriate
amount, leaving this court with
a discretion to award an amount that it may deem reasonable under the
circumstances. In assessing
damages, reference to prior awards is a
useful aid to assist a Court in determining what would be a fair and
reasonable compensation,
recourse being had to the specific
circumstances of this case.
In
Minister
of Safety and Security v Tyulu,
2009
(5) SA 85
at para 26, it was held that the correct approach is to
have regard to all the facts of the particular case and to determine
quantum
of damages on such facts. The plaintiff’s counsel has
referred this court to a number of cases in his heads of argument
dealing
with various awards for unlawful arrest and detention.
[42]
As discussed above, the plaintiff has been in custody for 549 days.
The plaintiff should be compensated
for the deprivation of liberty
that he suffered as a result of the defendant’s conduct. Such
compensation must be fair and
must not burden the defendant
unnecessary. Neethling, Potgieter and Visser (
Law of Delict,
5
edition at 231), note that ‘important guidelines to which a
court should adhere in the process of quantification, are fairness

and conservatism. In general this means that one should not merely
out of sympathy with a plaintiff, award a large amount of money
at
the expense of the defendant.’ The court must exercise its
discretion carefully and conservatively and rather award too
little
than too much and the amount awarded must not unnecessary burden the
defendant in the plaintiff’s favour. The award
must however not
be so conservative that the plaintiff does not obtain adequate
compensation. In
Pitt v Economic Insurance Co Ltd
1957 (3) SA
284
(D) Holmes J, stated as follows:
“
I
have only to add that the court must take care to see that its award
is fair to both sides – it must give just compensation
to the
plaintiff, but not pour out largesse from the horn of plenty at the
defendant’s expense.”
[43]
As discussed in the preceding paragraphs, I have been referred to a
number of cases where our
courts have awarded an average sum of
between R50 000 and R100 00 per day in cases of unlawful arrest
and detention. It is
correct that
reference
to prior awards is a useful aid to assist a court in determining what
would be a fair and reasonable compensation however,
each
case has to be dealt with according to its own merits. The object of
the award of compensation is to place the plaintiff in
a position he
would have been in but for the commission of delict and not to enrich
him. In my considered view, taking into account
all the circumstances
of this case, I am of the view that the sum of R18 000 per day
is fair and reasonable in the circumstance.
It is further my
considered view that a total sum of R 9 882 000 (
nine
million eight hundred and eighty two thousand
)
as general damages for pain and suffering cannot be said to be
unreasonable, especially considering the conduct of the defendant
who
ensured that the plaintiff was tortured, ill-treated and abused.
[44]
The plaintiff also claimed the sum of R45, 000 000
(
forty-five million
)
for loss of past and future earnings and earning capacity. In
preparation of this judgment, I had some difficulty with the proof
of
income that the plaintiff filed in support of his claim for loss of
earnings in particular, past earnings. To this end, I sent
a memo to
the plaintiff’s legal representative inquiring on plaintiff’s
income immediately prior to his arrest. In
response, the plaintiff
filed supplementary affidavits in which he stated that the majority
of his documents pertaining to his
business dealing with Angabe were
retained by Angabe. The plaintiff also informed the court that in the
period 2010 to 2013 prior
to his arrest, Angabe undertook to pay him
$5 000 (
five thousand dollars
)
per month as a retainer. Angabe did not always pay him the exact
amount each month and the payments were somewhat sporadic. Plaintiff

estimated that in the three-year period, he earned about $200 000
in total from Angabe as a retainer for setting up the airline.
He
also received a commission of $120 000 (
One
hundred and twenty thousand dollars
) in
2010 from Angabe.
[45]
During 2010 and 2013 he acted as the Chief Executive Officer (CEO) of
Equatorial Guinea Airline.
Despite him holding this position, it was
agreed between him and Angabe that plaintiff would continue to earn
commission for his
role in facilitating the conclusion of various
aircraft leases. During 2012 he facilitated several ad hoc short term
aircraft leases.
One such lease was for a Learjet 35, which flew only
for a period of three months. He earned $200 (
two
hundred dollars
) per flying hour and
there was a minimum of 45 flying hours per month. He earned $9000
(nine thousand) per month for three months
lease.
[46]
The plaintiff also alluded to the fact that the commissions recorded
in the spreadsheet used
by the Actuary to calculate his loss of
earnings were paid directly to him in cash or deposited into the
Banco National D Guinea
Equitorial Bank with account number
12004097011-08 or the account at BGFI Bank, with account number
3301900060314 the Equatorial
Guinea Bank accounts. Plaintiff avers
that he utilised cash to pay for his living expenses in Equatorial
Guinea. He deposited some
of the commission into the Equatorial
Guinea bank accounts and transferred some of the income from the
Equatorial Guinea bank account
to his Barclays International account
number 88793122. The Barclays bank statements evidence payments into
plaintiff’s account
amounting to $45 192 72 from the 30
December 2010 to 29 December 2011; $104 578, 62 from 30 December
2010 to 28 December
2012 and $38 890, 13 from 29 December 2012
to 27 December 2013.
[47]
The plaintiff averred that Angabe paid him the majority of the
commission in cash and also by
depositing into his Equatorial Guinea
bank account. The plaintiff did not have effective control over these
accounts. This was
because the State exercised control over banks in
Equatorial Guinea and Angabe used the accounts to maintain control
over him.
The plaintiff avers in his supplementary affidavit
that he is unable to obtain complete statements for the Equatorial
Guinea bank
accounts. To this end, he estimated the commission that
he earned as reflected in the spreadsheet given to the Actuary to
calculate
his income by analysing the aircraft particulars and
consulted with one Mr Richardson his business partner, the agent
responsible
for sourcing the aircraft who was based in South Africa
when the plaintiff was in Equatorial Guinea.
[48]
Mr Richardson corroborated the version of the plaintiff that indeed
they (plaintiff and Mr Richardson)
conducted a business in Equatorial
Guinea between 2001 and 2013 focusing mainly on aircraft leases for
Angabe and other operators
or investors. They were paid commissions
of up to $400 an hour for the periods during which the aircraft were
operational. In most
cases, there was an agreed price for a minimum
number of hours the aircraft would be deemed to be in operation for
purposes of
calculating the commission. Typically this would yield in
excess of $500 00 per annum which would generally be split between
him
and the plaintiff.  He could not locate all the invoices for
their commission. However, he located two recent invoices for
August
2012 for the sum of $636 000 and $205 040, 00.
[49]
In support of his claim for loss of earnings the plaintiff also
alluded to the fact that three
transactions were concluded in 2012
that would have earned him an income if he was not arrested. An
Aircraft, Crew, Maintenance
and Insurance (ACMI) term sheet was
concluded on 2 February 2012 for the lease of a Boeing 767-200 for
Coriscair for the period
November 2012 to November 2014 for a total
of commission of $300 000.00. Another ACMI time sheet was
concluded on 29 February
2012 for the lease of a Bombardier CRJ100 to
Coriscair for the period October 2012 to October 2014 for a total
commission of $144 000.00.
Another transaction was the lease of
a Bombardier CRJ100 to Coriscair for the period December 2012 to
December 2014 for a total
commission of $144 000.00. The
December 2012 to December 2014 lease was never consummated by virtue
of his unlawful detention.
The Aircraft was ready for inspection and
he is not aware whether the contract was consummated.  The
plaintiff also averred
that pursuant to these contracts, there were
other lease contracts that he and Richardson facilitated as reflected
in the supplementary
affidavit.
[50]
In his supplementary heads of argument, the plaintiff’s counsel
argued that the banks in
Equatorial Guinea where the plaintiff was
based, are controlled by the State and that it was impossible for the
plaintiff to obtain
his past bank statements. I must say with respect
that the information placed before court relating to the payment of
commission
is lacking in details. The plaintiff states that the
commission was paid in cash and part was deposited in the Equatorial
Guinea
bank accounts and he is unable to get the bank statements.
However, the court notes that notwithstanding the paucity of
documentary
evidence of plaintiff’s past income, his business
partner corroborated plaintiff’s version to the extent
necessary
that they facilitated the leasing of aircrafts to Angabe
and earned commission. In my view, the documentary proof in the form
of
invoices and lease agreements (ACMI) filed by Richardson confirms
and corroborates the contention of the plaintiff. Furthermore,
the
Barclays Bank Account statements exhibited to court supports the
plaintiff’s contention that he was earning an income
prior to
his arrest. The income inclusive of the commission that the plaintiff
earned was used by the Actuary to calculate the
plaintiff’s
loss of income. This court will therefore be guided by the actuarial
report in making an informed decision regarding
the loss of
plaintiff’s earnings.
[51]
It has been said that the result of an actuarial computation may be
no more than an ‘informed
guess’, it offers the
opportunity to ascertain the value of damages on logical basis which
is always preferable to a blind
guess. See
Southern Insurance
Association Ltd v Bailey
1984 (1) SA 98
(A) at 113G-114E. This
court was also referred to the case of
Hendricks v President
Insurance Co Ltd
1993 (3) SA 158
(C) at 163, where this court
said:
“
Our
courts have long recognised that there are cases which either by
their nature or due to their particular facts make the assessment
of
damages difficult. Where it is clear that damages have been suffered
but the quantum of those damages is not conducive or precise

calculation or even certain reliable estimation, the wrongdoer will
not be relieved of necessity to decide by reason of the difficulties

in assessing the quantum. Courts will do their best with the material
placed before them, scant though it may be, provided only
that
plaintiff has placed before the court all the evidence reasonably
available to assist the court in its task.”
[52]
The plaintiff has been in custody for a period of one year and six
months. He has been incarcerated
since December 2013 to 28 February
2014 and on 04 July 2014 to 26 August 2015 in a foreign country. From
the actuarial report of
Johan George Schwalb, prior to his arrest,
the plaintiff earned commission by arranging aircraft to be leased by
clients in various
African countries. In the period 2010 he earned a
total commission of US$ 120 000. It was expected that in the
period 2012
to 2014 the plaintiff would have entered into three
contracts providing for aircrafts in Equatorial Guinea for
transactions that
would have yielded an income of US$ 588 000
over a period of twenty-four months. The opportunity for him to earn
this income
was frustrated by the unlawful detention. From the
actuarial report provided, it is clear that the plaintiff was
successful in
his trade prior to his arrest. This view is fortified
by the income he earned between 2010 and 2013 as reflected in his
Barclays
Bank Account. His ability to earn his income was interrupted
by the unlawful conduct of the defendant.
[53]
The Clinical Psychologist Ms Wynchank noted that prior to his arrest
the plaintiff was reported
to be healthy, fit and an outgoing
individual. However pursuant to his arrest in Black Beach prison, the
plaintiff reported to
be suffering from Cerebral Malaria, Standard
Malaria and Typhoid Fever. The Psychologist also noted that there is
substantial evidence
to suggest that the plaintiff is suffering from
various mental illnesses as a result of his arrest, his detention in
police custody
and his period of incarceration and the violence and
brutality he experienced in prison. As a result, this caused him to
suffer
from post-traumatic stress disorder, major depressive
disorder, panic disorder, insomnia, agoraphobia and claustrophobia.
As a
result of these infirmities, it is highly unlikely that the
plaintiff will be able to compete in the job market and work in his

previous field given his mental state, and his problems with
concentration, attention and poor memory.
[54]
On the other hand, the clinical psychologist Ms Coetzee, who
conducted a
neuropsychological evaluation of the
plaintiff
noted that in spite of receiving trauma counselling and psychotherapy
since his release, the plaintiff remains both psychologically
and
cognitively affected. His capacity to compete in the open market has
been permanently and irreversibly altered. Ms Coetzee
noted further
that plaintiff’s reduced stress tolerance and his related
neuropsychological difficulties constitute a significant
handicap.
[55]
In my view, the plaintiff has to be compensated for his past and
future loss of earnings. The
defendant and or his partner Angabe
approached the plaintiff to partner with him in business because he
was aware that the plaintiff
was successful in business, hence he was
made the CEO of the Equatorial Guinea Airline. Angabe wanted the
expertise of the plaintiff
to assist them in launching an airline
business. When the business could not take off due to a breach of
contract caused by the
defendant and Angabe, the defendant and Angabe
abused the plaintiff and demanded refund of the money which the
plaintiff expended
to set the business in motion. Pursuant to that,
the plaintiff was arrested and tortured. This ultimately caused him
to lose his
income. For the 549 days that the plaintiff was in
custody, he could not earn any income. The plaintiff was also
affected mentally
and psychologically to work and earn an income. The
unlawful arrest and detention had a long lasting effect on his
ability to work
and generate an income as detailed in the reports of
the clinical psychologists.
[56]
It is my considered view; the plaintiff is entitled to be compensated
for the income which he
would have earned but for the arrest.
Furthermore, his future earning capacity has been frustrated by the
defendant. The debilitating
psychiatric illness has affected his
functioning in multiple ways. It has been established that it is
unlikely that he will be
able to compete in his trade or in his
previous field given his mental state.
[57]
In assessing damages for past and future loss of earnings, it is
important to bear in mind that
the primary purpose is not to enrich
the plaintiff but to compensate him for the loss he suffered. The
actuary estimated past earnings
to be US$262 8015 (R37 445 061.49 in
today’s exchange rate) and future earnings to be US$334 1337
(R47 604 362.37 in today’s
exchange rate). However, the Court
noted that the Actuary did not allow for contingencies deduction on
these amounts. The amounts
deposited into the plaintiff’s
Barclays bank Account from 2010 to 1013 amounts to a total income of
$ 204 036, 36 which
translates to R281 3940, 93. In my view, it
is abundantly clear that the plaintiff was earning a substantial
income before he was
arrested.
[58]
On a conspectus of all the evidence that the plaintiff placed before
court, I am of the view
that the fair, reasonable and just award for
past loss of earnings suffered by the plaintiff in this regard is an
amount of R10
000 000 (
Ten
million”
). Taking into account
the fact that the plaintiff will no longer be able to practice his
trade like he did prior to his unlawful
detention, this Court is of
the view that an amount of R20 000 000 (“
twenty
million”
) is fair and reasonable
for the future loss of earnings. The plaintiff has also claimed
constitutional damages in the sum of R
5 000 000
(“five
million”)
. At the hearing of this
matter, these damages were not pursued. In any event, I am of the
view that the claim for constitutional
damages could be claimed if
the conduct complained about occurred in South Africa and was subject
to the Constitution. In this
case, the conduct complained about was
not subject to the Constitution and in my view, there is no basis in
law or fact for claiming
constitutional damages. In the
circumstances, there will be no award for constitutional damages.
ORDER
[59]
In the result, having considered all the evidential material placed
before Court, judgment is
granted in
favour
of the plaintiff against the defendant for:
59.1.
Payment of the sum of
R
9 882 000 (
nine
million eight hundred and eighty-two thousand
)
in respect of general damages.
59.2.
Payment of the sum of R 10 000 000 (
Ten million
) in
respect of past loss of earnings.
59.3.
Payment of the sum of R 20 000 000 (
twenty million
) in
respect of future loss of earnings.
59.4.
Interest thereon on the aforesaid amount at the prescribed rate of
interest from date of judgment to date of final payment.
59.5.
Costs of the action including the costs of two Counsel, including the
costs of the following experts:
59.5.1
Ms Nadya Wynchank;
59.5.2
Ms Mignon Coetzee and
59.5.3
Mr George Schwalb.
59.6.
The defendant is ordered to pay the costs of the attachment
proceedings under Case No 22470/2015 before Saldanha J and Davis
J.
LEKHULENI
AJ
ACTING
JUDGE OF THE HIGH COURT
WESTERN
CAPE HIGH COURT