Brief Summary

Malicious Arrest and Detention — Unlawful arrest and detention — Plaintiff arrested without a warrant and detained for approximately 64 hours — Defendants conceded the wrongfulness of the arrest and detention — Plaintiff claimed damages for malicious arrest and malicious prosecution — Court found that the arrest was not based on reasonable grounds and that the conditions of detention were unacceptable — Plaintiff awarded damages for both claims.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were a delictual damages action in the South Gauteng High Court, Johannesburg, arising from an arrest without a warrant, subsequent detention, and a later criminal prosecution. The plaintiff, Cacouris Amiras, sued the first defendant, Constable Lemmetjies, as the arresting officer, and the second defendant, the Minister of Safety and Security, in whose capacity liability was pursued for the conduct of the police.

The matter proceeded to trial primarily on the question of quantum and the characterisation of the defendants’ conduct as malicious, because the defendants conceded the merits before trial commenced. In particular, the defendants conceded the wrongfulness of the plaintiff’s arrest and detention. The plaintiff testified, as did his attorney, Mr Phillip Pritchard. The defendants closed their case without calling any witnesses, including without calling the arresting officer.

The general subject-matter of the dispute concerned compensation for harm flowing from the plaintiff’s alleged malicious arrest, malicious detention, and malicious prosecution, together with a separate claim for legal costs incurred. During the hearing, the plaintiff indicated an intention to amend his claim to separate malicious arrest from malicious prosecution; the court allowed the amendment, and the matter was determined on the claim as amended.

Material Facts

It was undisputed (by virtue of a concession on the merits) that the plaintiff’s arrest on Friday, 26 September 2008, at the Sandton police station, was without a warrant and was wrongful, and that the ensuing detention until Sunday, 29 September 2008 (when bail was granted at the Wynberg Magistrate’s Court) was also wrongful.

The events giving rise to the arrest occurred against the background of a trailer that the plaintiff had sold to Mr Fryer in 2002 for R6 000. On 26 September 2008 the plaintiff, while travelling with his mother to see a movie, was requested by Mr Fryer to come to the police station to assist in identifying the trailer after Mr Fryer’s driver had been arrested while in possession of it. The plaintiff attended at the police station at Mr Fryer’s request, and Mr Fryer’s attorney, Mr Pritchard, was also present.

At the police station the plaintiff identified the trailer, and documentation relating to the trailer and its ownership history was made available. Despite this, Constable Lemmetjies informed the plaintiff that the trailer had been reported stolen in 2007, and proceeded to charge the plaintiff with possession of a stolen motor vehicle, while releasing Mr Fryer’s driver. The plaintiff was arrested in the presence of his mother and Mr Pritchard, and the arresting officer estimated the value of the trailer at R20 000 notwithstanding documentation reflecting the purchase price.

The plaintiff was detained at the Sandton police station in a small cell with several other detainees. The plaintiff described the detention conditions as unhygienic and degrading, including lack of access to drinking water (with detainees drinking from a shower), an out-of-order toilet, an infested blanket, and unpalatable food which he refused to eat. Efforts to secure police bail were unsuccessful, and the plaintiff’s attorney testified that the investigating officer left the police station with the docket and could not be contacted, which impeded the bail process.

On 29 September 2008 the plaintiff was transported with other detainees to the Wynberg Magistrate’s Court under cramped conditions in a police van. The plaintiff’s attorney initially went to the Randburg Magistrate’s Court to pursue bail, but then proceeded to Wynberg upon learning the matter was not enrolled at Randburg, and succeeded in obtaining bail. The criminal matter was subsequently struck from the trial roll on 20 January 2009, after a prosecution period of approximately four months, involving two court appearances.

As to consequences, the plaintiff was a 55-year-old business broker at the time. A business meeting scheduled for 27 September 2008 was cancelled due to his arrest, and he testified that the reason for cancellation was communicated to prospective clients, resulting in publicity and humiliation. While the plaintiff alleged his business was negatively affected, the judgment records that he did not provide evidence quantifying the extent of that impact.

A further material fact concerned the plaintiff’s claim for R11 000 said to be legal costs incurred. The evidence established that the attorney’s account for services was rendered to Cadplan (Mr Fryer’s business) and was settled in full, and the plaintiff led no evidence explaining how he acquired a right to recover that amount from the defendants.

Legal Issues

The central questions the court was required to determine were, first, whether the evidence justified findings not merely of wrongfulness (which was conceded) but of malice in relation to the plaintiff’s arrest and detention and the subsequent prosecution, and secondly what constituted a fair and adequate award of general damages in the circumstances.

In relation to malicious prosecution, the dispute turned on the application of law to fact, namely whether the established facts met the requirements for the delict of malicious prosecution, including whether Constable Lemmetjies could be regarded as having instigated the prosecution and acted without reasonable and probable cause and with animo injurandi, and whether the prosecution had failed. A further legal issue was the defendants’ argument that a claim for malicious prosecution lay against the public prosecutor’s office and that the plaintiff had failed to join the relevant department.

A discrete issue of law and fact also arose regarding whether the plaintiff could recover legal costs (R11 000) as damages, given the evidence that the account was paid by a third party and the absence of proof that the plaintiff had a right to sue for that amount.

Court’s Reasoning

The court approached the matter on the basis that quantum in cases of unlawful arrest and detention is a matter of judicial discretion, and that the purpose of general damages is to provide solatium rather than enrichment. In this connection, the court relied on guidance from the Supreme Court of Appeal concerning the use of comparable awards, emphasising that previous cases provide only a guide and that each matter must be assessed on its own facts, and that the primary purpose of an award is to offer redress for injured feelings rather than to enrich the claimant.

In determining the appropriate quantum, the court identified relevant factors as including the plaintiff’s age, social standing, the nature and duration of the detention, whether the arrest occurred for an improper motive, and the nature and duration of the prosecution. The court then assessed the factual matrix as showing that the plaintiff was charged with possession of a stolen motor vehicle although the trailer was found in the possession of a third party, and that the trailer was alleged to have been stolen years after the plaintiff had sold it to Mr Fryer. The court considered it material that the plaintiff was detained for approximately sixty-four hours despite information indicating that the trailer was registered in the plaintiff’s name, and despite the existence of an official e-Natis certificate reflecting the plaintiff as the registered owner.

The court found that there was no evidence suggesting the plaintiff would have absconded or failed to appear if a less invasive method (such as obtaining a summons) had been used. It also reasoned that, after laying the charge, the arresting officer failed to consider alternative means to secure the plaintiff’s attendance in court other than immediate detention. The court further considered the evidence that the arresting officer denied the plaintiff an opportunity to apply for police bail and, on the attorney’s version, obstructed the bail process by leaving the police station with the docket and being unavailable.

On the defendants’ submission that malice had not been proved because the arrest followed a complaint of stolen property, and that bail refusal was justified by reference to Schedule 2 of the Criminal Procedure Act, the court did not accept that this answered the plaintiff’s case on the evidence placed before it. The court also rejected the contention that the malicious prosecution claim necessarily lay only against the public prosecutor; applying the stated requirements for malicious prosecution, it held that the submission was incorrect on those requirements and rejected it.

A significant feature of the court’s reasoning was its evaluation of the evidentiary position created by the defendants’ decision not to call Constable Lemmetjies. The court stated that, on the evidence before it, it could find no basis for the arrest and detention, especially in the absence of evidence from the arresting officer explaining his conduct. It concluded that Constable Lemmetjies knew or reasonably ought to have known that it was impossible for the plaintiff to be guilty of the offence as charged, and that he could not reasonably have believed in the validity of the charge on the information available. On this basis, the court found that the arresting officer had abused process by intentionally and wrongfully setting the law in motion, and that he was instrumental in initiating and prosecuting the charge.

Regarding malicious prosecution specifically, the court considered the duration of the prosecution (about four months, with two court appearances) and found that the actions of the arresting officer were malicious and without reasonable and probable cause, with malice established on the facts. It therefore found that both the arrest and detention and the subsequent prosecution were malicious.

When turning to the quantification of damages, the court considered the humiliation and indignity the plaintiff suffered, as well as the unacceptable detention conditions. While it accepted that the plaintiff experienced humiliation and that the publicity harmed him, it noted that the plaintiff did not provide evidence of the extent of business harm. The court then used comparative guidance from prior cases cited to it, including the reduction of a general damages award in a case involving five days’ detention and an award in another case involving three days’ detention and unhygienic incarceration conditions where malice was established.

Finally, as to the plaintiff’s separate claim for R11 000 in legal costs, the court held that the evidence showed the account was rendered to and paid by a third party, and that no evidence explained how the plaintiff had acquired a right to sue for that amount. The claim for that component therefore failed.

Outcome and Relief

The court awarded the plaintiff R90 000 as general damages for malicious arrest and R60 000 as general damages for malicious prosecution, for a total award of R150 000. Interest was awarded at 15.5% per annum, a tempore morae from 25 May 2009 to date of payment.

The plaintiff’s claim for R11 000 in legal costs was refused.

The defendants were ordered, jointly and severally, to pay the plaintiff’s costs of suit.

Cases Cited

Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA)

Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA)

Greenberg v De Beer and Another (citation not provided in the judgment)

Legislation Cited

Criminal Procedure Act 51 of 1977 (including reference to Part II of Schedule 2)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, on the evidence accepted (and in circumstances where the defendants led no evidence from the arresting officer), the plaintiff’s arrest and detention were not only wrongful (as conceded) but also malicious and unsupported by reasonable and probable cause. It further held that the arresting officer was instrumental in setting the criminal process in motion and that the ensuing prosecution, which endured for approximately four months and involved two court appearances before being struck from the roll, was malicious prosecution on the requirements identified in argument.

The court held that the plaintiff proved entitlement to general damages for malicious arrest and for malicious prosecution as distinct heads, but that the plaintiff failed to prove entitlement to recover R11 000 in legal costs because the account was paid by a third party and no basis was established for the plaintiff’s right to sue for that amount.

LEGAL PRINCIPLES

The judgment applied the principle that the assessment of general damages for unlawful arrest and detention falls within the trial court’s discretion, and that prior awards in comparable cases serve only as a guide because few cases are directly comparable and each must be evaluated on its own facts as a whole.

It applied the principle that the primary purpose of damages for impairment of liberty and dignity is not to enrich the claimant but to provide a solatium for injured feelings, humiliation, and loss of dignity.

In relation to malicious prosecution, the judgment proceeded on the requirements placed before the court in argument, namely that the defendant must have instigated the proceedings, acted without reasonable or probable cause, acted with animo injurandi, and that the prosecution must have failed. On the facts as found, the court treated a police official as capable of being liable where the official was instrumental in initiating and driving the improper setting of the criminal process in motion.

The judgment also applied the principle that a plaintiff claiming a monetary amount as legal costs in damages must establish a factual and legal basis for the plaintiff’s right to recover that amount, particularly where the evidence shows payment by a third party and no right of recourse has been proved.

Cacouris v Lemmetjies and Another (41135/09) [2012] ZAGPJHC 76 (4 April 2012)