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[2012] ZAGPJHC 140
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Sondlo v Minister of Police (14842/2011) [2012] ZAGPJHC 140 (21 August 2012)
REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE NO: 14842/2011
In the matter between
THABO
SONDLO
PLAINTIFF
and
MINISTER
OF POLICE
DEFENDANT
J U D G M E N T
Summary
Unlawful arrest and
detention – damages. Each case to be considered on own
facts – awards from State coffers should
be approached with
restraint.
WEPENER J:
[1]
This is an action for damages arising from an unlawful arrest and
detention of the Plaintiff. The plaintiff, a 34 year old
family man,
with a wife and three children, works as a paint mixer. He assists at
a social club where children are encouraged to,
inter
alia,
participate in sporting
activities. The purpose of the social club is to prevent children
from committing crimes. Plaintiff is
also a member of a church.
[2] On the day in
question in 2009 at just after 17h00, the plaintiff was on his way
home from work where he was admittedly, unlawfully
arrested on a
train. He was handcuffed and eventually detained at New Canada
railway station, in a overcrowded cell. He was later
taken to the
Orlando Police Station and again held in an overcrowded cell. Later,
he was taken back to New Canada but not detained
there. Members of
the defendant took the plaintiff and others to the Booysens Police
Station where his fingerprints were taken.
Thereafter he was taken to
the John Voster Police Station and detained from about midnight in
unhygienic conditions. At about 12h00
the next day, plaintiff
received some bread and tea and at about 15h00 he was released
without further ado.
[3]
There can be no doubt that the plaintiff suffered humiliation and
trauma as a result of his unlawful arrest and detention.
The
plaintiff also added that his arrest and detention did not ‘
sit
well
’ with the members of his
family, church and social club.
[4] There is no evidence
before me of any injuries suffered by the plaintiff or any long term
effects following upon the arrest
and detention.
[5]
The only question which I am required to determine is the quantum of
damages to be awarded to the plaintiff. Counsel referred
me to a
number of decided cases where damages were awarded in similar
matters. Ms Adam relied on four cases to contend that an
amount of
R125,000.00 would be an appropriate award of damages. These are Louw
v Minister of Safety and Security
2006 (2) SACR (T) where an amount of R75,000.00 was awarded;
Van
Rensburg v City of Johannesburg
[2007] ZAGPHC 276
;
2009
(1) SACR 32
(W) where an amount of R75,000.00 was awarded;
Murrel
and Another v Minister of Safety and Security
(24152/2008) (2010) ZAGPPHC 16 (22 February 2010)) where an amount of
R90,000.00 was awarded; and
Olivier v
Minister of Safety and Security and Another
2009 (3) SA 434
(W) where an amount of R50,000.00 was awarded.
[6]
I also take into account that in an unreported matter
Muraor
V Ekurhuleni Metropolitan Council
(2009/24023) delivered on 6 December 2010, where this court awarded
an amount of R50,000.00 as damages for the unlawful arrest
and
detention of a plaintiff where the plaintiff was manhandled and left
incarcerated overnight.
[7]
‘
The awards by any courts in other
similar matters provide a useful basis for comparison in determining
a fair and just award. At
the same time one must be mindful of the
caution expressed by Innes CJ in Hulley v Cox 1923 AD at 236 that
such a comparison
“
while
instructive, could never be decisive”
’
– per Kollapen AJ as he then was) in
Murrell
and Another v Minister of Safety and Security
(24152/2008 [2010] ZAGPPHC 16 (22 February 2010) at para 29.
[8]
Ms Adam argued that s 12 of the Constitution guarantees every person
the right to freedom and no person is to be deprived
thereof
arbitrarily and without just cause. She relied on what R Du Plessis,
AJ said in
Coetzee v National
Commissioner of Police and Others
(70259/09) [2010] ZAGPPHC 155 said at para 94 and 95 as follows:
‘
[94]
It is the right of citizens and free men to insist upon the
courts creating a deterrent, and providing within the confines
of the
law the necessary and appropriate relief in instances such as the
aforegoing, to enforce our progressive, admired and wonderful
Constitution, that
has brought freedom and human rights to millions of previously
disenfranchised, and disregarded citizens. The
rights created in the
Constitution must be safeguarded and protected and any infringement
thereof should be deterred through whatever
lawful mechanisms
possible, including appropriate relief which could and should
function as a deterrent for public officials who
infringe the
principles enshrined in the Constitution, who act outside the scope
of their constitutional duties, and who infringe
upon the rights of
normal, free and law abiding citizens.
[95]
Unlawful detention has had an infamous history in our law. It was
utilised during the apartheid era to force persons into
submission,
where they were locked up in solitary confinement for days on end,
and it was utilised in a brutal and unacceptable
fashion. Its
utilisation for political reasons was criticised worldwide, it was
not justified, and have caused severe human rights
infringements and
violations. This should not be allowed to happen again in a free
democratic society such as the one created by
our Constitution. It
should not be tolerated by any law abiding citizen, and it cannot be
justified on any basis whatsoever.’
The
invasion upon a person
’
s liberty must
be seen in perspective and it appears that R Du Plessis AJ was not
aware of the decision of the Supreme Court of
Appeal in which Nugent
JA said in
Minister of Safety and
Security v Seymour
2006 (6) SA 320
(SCA) at para 14 as follows:
‘
I
do not think that the courts in earlier cases placed less value on
personal liberty than ought to be placed on it today. Indeed,
what
was said in May shows the contrary. Nor do I think there is any basis
for concluding that awards that were made at that time
reflect a more
tolerant judicial view of incursions upon personal liberty. It
was precisely because personal liberty has
always been judicially
valued that the incursions that were made upon it by the Legislature
and the Executive at that time were
so odious. The real import of the
Constitution has not been to enhance the inherent value of liberty,
which has been constant,
albeit that it was systematically
undermined, but rather to ensure that those incursions upon it will
not recur. To the extent
that the learned Judge placed a
jurisprudential premium on personal liberty that was absent before
now, in my view, it was
misdirected.
’
[9]
Any infringement on this basic right is a serious inroad into an
individual’s liberty and will be open to censure.
The censure
in this matter is by way of
solatium
awarded to the plaintiff for his injury.
[10] The plaintiff’s
damages will ultimately be forthcoming from the State coffers to
which the citizens of this country contribute.
Some restraint is
called for when awarding damages where the fiscus is source thereof.
[11] I am further of the
view that amounts of damages to be awarded for relative short periods
of wrongful detention should be approached
with circumspection. There
is no justification for awarding amounts which are out of proportion
with the indignity suffered by
an arrested person.
[12]
Brandt JA, quoting Holmes J (as he then was) in
De
Jongh v Du Pisanie NO
2005 (5) SA
457
(SCA) at para 60, said:
‘
Dit
betaam net so min die gemeenskap (of dan die Hof) om te gulhartig te
wees met die verweerder se geld, al was hy of sy regtens
aanspreeklik
weens sy of haar nalatige gedrag. Die volgende uitlating van Holmes R
in Pitt v Economic Insurance Co Ltd 1957 (3)
SA C 284 (D) op 287E - F
vind dus eweneens toepassing in onderhawige verband:
“
(T)he
Court must take care to see that its award is fair to both sides - it
must give just compensation to the plaintiff, but it
must not pour
out largesse from the horn of plenty at the defendant's expense.”
Konserwatisme
by die toekenning van algemene skadevergoeding het sy oorsprong in 'n
behoefte dat daar ook teenoor die verweerder
billikheid moet geskied
en nie in die suinigheid van die gemeenskap teenoor die eiser nie.
’
and at para 64 –
65:
‘
[64]
Die benadering wat van oudsher deur hierdie Hof gevolg word, is
egter juis andersom (sien byvoorbeeld, Hulley v Cox (supra
op 246),
Sigournay v Gillbanks (supra op 556) en Protea Assurance Co Ltd v
Lamb
1971
(1) SA 530
(A)
op
535). Volgens hierdie benadering is die beginsel juis dat die
vasstelling van nie-patrimoniële skade in die diskresie van
die
Hof is. By die uitoefening van die Hof se diskresie is vergelyking
met toekennings in vorige sake 'n nuttige hulpmiddel omdat
dit darem
vir die Hof die breë parameters oftewel 'n patroon aandui
waarbinne sy toekenning tuisgebring moet word. Dit is
ook 'n nodige
riglyn omdat konsekwentheid in toekennings 'n inherente
vereiste van billikheid is. Nietemin bly dit steeds
'n riglyn. Dit
vervang nie die Hof se diskresie met 'n letterknegtige gebondenheid
aan die aangepaste waarde van vorige toekennings
nie.
[65] Die stygende
tendens van toekennings in die onlangse verlede is, soos ek alreeds
gesê het, duidelik waarneembaar. Die
effek daarvan is egter
weer eens nie met matematiese presiesheid bepaalbaar nie. Dit is nie
seker presies wanneer die tendens begin
het en wanneer dit sal eindig
nie. Dit het bes moontlik reeds tot 'n einde gekom. 'n Bepaalde
toekenning uit die verlede waarna
verwys word kon dus reeds met
inagneming van die tendens geskied het. As die vorige
beslissing wat as maatstaf dien reeds
met inagneming van die stygende
tendens gemaak is, kan dit nouliks geregverdig word om op grond van
dieselfde oorwegings sonder
enige bykomstige rede, 'n verdere styging
toe te laat. Daarbenewens verg die tendens klaarblyklik nie die
vermenigvuldiging van
vroeëre toekennings met 'n voorafbepaalde
of bepaalbare faktor nie. Op die ou end is die tendens maar net nog
'n oorweging
wat die Hof geregverdig is om in ag te neem wanneer hy,
by die uitoefening van sy diskresie, na vorige toekennings, veral in
ouer
sake, as riglyn verwys.’
[13] I have considered
the facts before me and I am of the view that an amount of R50,000.00
would adequately compensate the plaintiff.
The defendant conceded
that the costs should be paid on the High Court scale.
I consequently make the
following order:
The defendant is liable
to pay:
1)
damages to the plaintiff in the sum of R50,000.00;
2) interest on the
sum of R50,000.00 at 15.5% per annum from date of service of summons
to date of payment;
3)
costs of suit.
WEPENER J
JUDGE
OF THE HIGH COURT
COUNSEL FOR THE
PLAINTIFF: N. Adam
PLAINTIFF’S
ATTORNEYS: Bessinger Attorneys
COUNSEL FOR THE
DEFENDANT: M.M Zondi
DEFENDANT’S
ATTORNEYS: The State Attorney
DATE/S OF HEARING: 17
August 2012
DATE OF JUDGMENT: 21
August 2012