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[2016] ZAGPJHC 229
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Lequoa v Minister of Police (02441/2015) [2016] ZAGPJHC 229 (10 May 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 02441/2015
DATE: 10 MAY 2016
In the matter between:
TSUANG WISEMAN
LEQUOA
...............................................................................................
Plaintiff
And
THE MINISTER OF
POLICE
................................................................................................
Defendant
J U D G M E N T
KEIGHTLEY, J
:
[1] Like so many other matters that appear on the civil trial roll
every week in this division this case involves an action for
damages
against the Minister of Police for wrongful arrest and detention.
The plaintiff, Mr Lequoa, was arrested by SAPS
officers. The
officers were on duty patrolling the streets of Vanderbijlpark in a
marked police vehicle on the night in question.
[2] There are some minor disputes regarding the events surrounding
the arrest, but none of much consequence.
[3] Mr Lequoa was together with approximately 10 friends at the time
of his arrest. They were on foot, having left a 21
st
birthday party shortly before the police came across them. The
police asked to search them for dangerous weapons (and dagga,
but
this fact is disputed). None were found in the possession of
any of the group.
[4] The police then accused Mr Lequoa and his friends of being
drunk. They denied this. Nonetheless, the police officers
arrested the whole group, put them into the back of one or two patrol
vans (the number is in some dispute), and drove them to the
Vanderbijlpark police station. There they were handed their
notices in terms of section 35 of the Constitution, indicating
that
they were being arrested on charges of drunkenness. They were
released the following morning. Charges were not
pursued
against them.
[5] On the plaintiff’s version of events, he was arrested at
11pm on 13 November 2014 and was released at 8.45 am the following
morning. On the defendant’s version, which is confirmed
by the cell register from the night in question, Mr Lequoa
was
arrested at 1.20am on 14 November 2014 and released at 6am that
morning. Not much turns on this discrepancy for purposes
of
determining the merits of the matter and the quantum of damages.
I will proceed on the basis that he was detained for
between 5 and 9
hours. What is more significant is that the period of detention
spanned the dead hours of the night and some
way into the following
morning.
[6] In arresting Mr Lequoa the police proceeded under
section
40(1)(a)
of the
Criminal Procedure Act 51 of 1977
. This
section provides that:
“A peace officer may without warrant arrest any person …
who commits or attempts to commit any offence in his presence.”
[7] The offence in question in Mr Lequoa’s case was that of
being intoxicated in or near a public place, including any road,
street or thoroughfare in terms of section 127(c) of the Gauteng
Liquor Act 2 of 2003 (“the
Liquor Act&rdquo
;). This Act
defines “
intoxicated
” as follows:
“… the condition a person is in when his or her
capabilities are so impaired by liquor that he or she is likely to
cause injury to himself or herself or be a danger or nuisance or
disturbance to others”.
[8] It is well established that the onus rests on the police in a
case such as the present to establish the lawfulness of the
arrest.
[1]
The first question I need to consider is whether the police have
satisfied the jurisdictional requirements for the lawful
arrest of Mr
Lequoa in terms of section 40(1)(a) on the charge of intoxication.
[9] Unlike an arrest under section 40(1)(b), the lawfulness of an
arrest without a warrant under section 40(1)(a) does not depend
on
the reasonable suspicion of the arresting officer. The latter
section requires that the arrested person
must commit or attempt
to commit an offence
in the presence of the arresting officer.
[10] Warrant Officer Mankhe was the arresting officer. He
testified that Mr Lequoa was behaving like he was drunk. He smelt
of
liquor and wasn’t able to speak properly or to stand properly.
It was on this basis that Warrant Officer Mankhe
concluded that Mr
Lequoa was drunk. Warrant Officer Mankhe told Mr Lequoa that he
was drunk, but he didn’t want to
listen to him. Instead,
he started insulting the Warrant Officer. It was then that he
decided to arrest Mr Lequoa along
with his friends.
[11] Warrant Officer Boroko accompanied Warrant Officer Mankhe in the
patrol van on the night in question. He corroborated
the
former’s testimony, adding that Mr Lequoa had a bottle of
liquor in his possession at the time (a fact not alluded to
by
Warrant Officer Mankhe), and that he and Warrant Officer Mankhe
concluded that it was not safe for Mr Lequoa to be walking around
that area at night, so they took him into custody.
[12] It is common cause that the police did not conduct any tests on
Mr Lequoa to determine whether he was inebriated or not.
[13] Mr Lequoa vehemently denied that he was intoxicated when he and
his friends were arrested. He conceded that he had consumed
some alcohol, but testified that this was limited to a six-pack of
beers that he had shared with a friend. According to Mr
Lequoa,
he had only consumed 3 beers that night.
[14] It is so, as counsel for the defendant contended, that Mr
Lequoa’s testimony in this regard was not corroborated by
any
of his 10 friends who were with him on the night in question.
If Mr Lequoa bore the onus to establish the unlawfulness
of his
arrest this may have constituted a serious obstacle for him.
However, the onus does not rest upon him. It is
for the police
to provide sufficient evidence to establish on a balance of
probabilities that Mr Lequoa was intoxicated, within
the meaning of
section 127(c)
of the
Liquor Act, on
the street in question on that
night.
[15] In my view, the testimony of both police witnesses did not go
far enough to establish that Mr Lequoa was intoxicated.
He
admits that he had three beers to drink. This would account for
the smell of alcohol on him. It may also have lead
to a
suspicion on the part of the arresting officers that he was
intoxicated. However,
section 127(c)
, read with
section
40(1)(a)
requires more. It requires that it be established that
the arrestee was in fact intoxicated in a public place, and that his
level of intoxication was such that “he or she is likely to
cause injury to himself or herself or be a danger or nuisance
or
disturbance to others”. The police witnesses proffered no
evidence to indicate that in consequence of his intoxication
Mr
Lequoa posed a danger or nuisance to himself or others, or that he
was likely to cause a disturbance. If facts existed
to support
this, they were not related by either Warrant Officer Mankhe or
Warrant Officer Boroko.
[16] In the circumstances, I conclude that the defendant has failed
to establish that Mr Lequoa’s arrest was lawful.
If his
arrest was unlawful, then it follows that his detention also was
unlawful.
[17] This leaves me with two remaining issues to consider: that of
quantum, and that of the scale of costs that ought properly
to apply
in this case.
[18] As far as quantum is concerned, the initial amount claimed in
the summons was R500 000. 00. When the trial commenced
counsel
for the plaintiff indicated that this amount would be revised and
reduced. During the course of presenting closing
arguments,
counsel for the plaintiff indicated that he could not realistically
submit that Mr Lequoa was entitled to any more than
an amount of R55
000. 00 by way of damages. This is a massive reduction from the
R500 000. 00 originally sought.
[19] Mr du Bruyn, for the plaintiff, quite correctly accepted that
while the amount of damages awarded in similar cases may be
a useful
guide to courts in later cases, reliance on them should not be taken
too far. Nugent JA in
Minister of Safety and Security v Seymour
[2]
warned of the “
dangers of relying excessively on earlier
awards
”
[3]
in these types of cases. He remarked further that:
“The assessment of awards of general damages with reference to
awards made in previous cases is fraught with difficulty.
The
facts of a particular case need to be looked at
as a whole
and
few cases are directly comparable. They are a useful guide to
what other courts have considered to be appropriate but
they have no
higher value than that.”
[4]
[20] The court held further that:
“Money can never be more than a crude
solatium
for the
deprivation of what, in truth, can never be restored and there is no
empirical measure for the loss. The awards I
have referred to
reflect no discernable pattern other than that our courts are
not
extravagant
in compensating the loss. It needs also to be
kept in mind when making such awards that there are
many
legitimate calls upon the public purse
to ensure that other
rights that are no less important also receive protection.”
(emphasis added)
[21] Looking at the facts of the present case as a whole, the context
of the arrest is a useful starting point. Mr Lequoa
and his
relatively large group of friends were walking in a public street in
an area described by the police witnesses as being
dangerous late at
night. They were on their way home (according to their version)
from a party. Mr Lequoa had been
drinking, although I have
accepted his version that he was not intoxicated within the meaning
of the
Liquor Act. This
conduct on the part of Mr Lequoa and
his friends, although not unlawful, carried with it some risk that
they would invite the attention
of the police on patrol.
Warrant Officer Mankhe attested to Mr Lequoa’s “insulting”
behaviour towards the
two officers, and his unwillingness to listen
to what they were saying. Mr Lequoa himself attested to his
anger towards the
police for, in his mind, falsely accusing him and
his friends of being drunk.
[22] As I have indicated, these circumstances did not warrant Mr
Lequoa’s arrest within the ambit of the law. However,
they go some way towards mitigating the conduct of the arresting
officers. They are also relevant to the issue of an appropriate
solatium
, in that they indicate that Mr Lequoa’s own
conduct played a role in the predicament in which he found himself.
This
does not excuse the infringement of Mr Lequoa’s
constitutional rights as a result of his arrest. However, it is
an
element that ought properly to be taken into account in assessing
the extent of the injury to his feelings resulting from his unlawful
arrest and detention, and hence of the appropriate measure of the
solatium
to which he is entitled.
[23] The unlawful conduct of the defendant in this case is restricted
to the unlawful arrest and the detention for between 5 to
9 hours.
There is no evidence that the police officers manhandled, threatened
or assaulted Mr Lequoa in any way, or that
they placed him in the way
of any danger. Mr Lequoa was detained in a police cell
overnight. He was not in any danger
there as, on his own
evidence, he was together with his friends who had been arrested with
him.
[24] I accept that on the evidence of the police, the cell in which
Mr Lequoa and his friends were held was designed to hold 8
persons,
and that there were 11 persons housed in it for the night. I
also accept Mr Lequoa’s evidence to the effect
that there were
not enough mattresses for all of them. He and his friends
joined the mattresses together and, it appears,
in so doing they were
all accommodated on them.
[25] He also testified to the fact that the toilet that was housed in
the cell was not closed off to ensure privacy. There
was
apparently one low wall that provided a limited screen from the other
cellmates. Mr Lequoa testified that the toilet
was blocked and
that there was no toilet paper. The defendant did not bring any
evidence to contradict this, save for the
evidence of Warrant Officer
Boroko who testified that generally the toilets were cleaned every
day.
[26] Clearly the conditions in the cell were such that most people
would feel an affront to their dignity on being confronted by
them.
Mr Lequoa gave no evidence of any additional or particular impact
that he had suffered as a result of his unlawful arrest
and
detention. When asked about how he felt about the incident, he
testified that he felt anger at the police for what they
had done.
He did not say that he felt humiliated or that his reputation had
suffered. However, this does not exclude
the existence of what
I accept must have been a measure of inherent prejudice to Mr
Lequoa’s dignity and self-worth flowing
from the circumstances
in which he found himself.
[27] Taking all of these factors into account, I am unable to agree
with Mr du Bruyn’s submission that R55 000. 00 represents
a
fair quantum of damages. The plaintiff is a young man who was
arrested with a group of his friends late at night after
they had
attended a party at which Mr Lequoa had admittedly imbibed alcohol,
and while they were walking down a public street.
The police
cannot be faulted for being vigilant and paying attention to them.
The plaintiff’s own conduct did not assist
him when the police
confronted them. It was clearly a factor that contributed to
the decision to arrest him and his friends.
While the
conditions in the cell were not pleasant, and there was an element of
overcrowding, on Mr Lequoa’s own evidence
he shared this
experience with his friends, rather than in isolation or with a group
of strangers.
[28] In addition, as I have already said, much of Mr Lequoa’s
period of detention was served in the dead time of night.
He
was not provided with a meal, but in these hours, and given his
relatively early release in the morning, it could hardly have
been
expected of the police to provide him and his cellmates with much by
way of meals.
[29] In these circumstances, and bearing in mind the principles laid
down in the dicta cited above from the
Seymour
judgment, in my
view an amount of R25 000. 00 is adequate recompense for the
infringement of Mr Lequoa’s rights.
[30] This brings me to the issue of costs. Of course, costs
must follow the result. However, the question that arises
is on
what scale? This question stems from the fact that counsel for
Mr Lequoa ultimately accepted that he would be entitled
to no more
than R55 000 by way of damages. This is a massive reduction
from the amount originally claimed in the summons.
At the end
of the day, the amount awarded to Mr Lequoa falls well within the
jurisdiction of the magistrate’s court.
[31] Where a case could have been heard in a less expensive forum,
such as a magistrate’s court, but is brought in the High
Court,
it is within the discretion of that court to award costs on the scale
of the appropriate court, rather than on the High
Court scale.
In such a case, the plaintiff bears the onus to justify his or her
recourse to the more expensive tribunal and,
accordingly, to his or
her entitlement to costs on the High Court scale.
[5]
In determining the issue of which scale of costs ought to apply, the
judge must exercise his or her discretion judicially,
with reference
to all relevant facts of the case.
[6]
[32] Some of the factors that have been identified as being relevant
to this inquiry include the factual or legal difficulties
of the
case; the public interest element involved; the importance of the
case for the plaintiff; whether serious allegations, such
as fraud,
are made; whether the plaintiff might reasonably have anticipated
that he or she might be awarded an amount in damages
exceeding the
monetary jurisdiction of the magistrate’s court; and whether
the plaintiff’s recourse to the High Court
constitutes an
abuse.
[7]
[33] The plaintiff seeks costs on the High Court scale. As I
have recorded already, the initial quantum of the claim was
fixed at
R500 000. 00 in the summons. In addition to the infringement of
the plaintiff’s personal rights, the claim
was supported by
allegations in the particulars of non-patrimonial loss suffered
including shock, psychological trauma and emotional
shock.
Whether or not this was factored into the substantial quantum of the
claim is not clear. What is clear, however,
is that:
[33.1]The quantum claimed far exceeded the bounds of what the
plaintiff ordinarily would be entitled to in a matter of this nature.
[33.2]No attempt was made at trial to justify the substantial amount
of the claim. No evidence was led as to the alleged
shock and
trauma occasioned by the arrest. In fact, as I have already
indicated, Mr Lequoa testified only to feeling anger
at the police as
a result of the incident.
[33.3]At the closing stage of the trial, it was conceded by the
plaintiff that a more realistic amount of damages would be
approximately
one tenth (R55 000) of what had been claimed
originally.
[34] Given these circumstances, I asked Mr du Bruyn why costs should
not be awarded on the magistrate’s court scale.
I am
grateful to Mr du Bruyn for the well-referenced heads of argument
that he presented in his efforts to persuade me that I ought
to award
costs on the High Court scale.
[35] From the case law presented, it seems that there is not
necessarily uniformity on the parts of the courts as regards the
scale of costs applied in wrongful arrest and detention matters.
Of course, I am referring to cases in which the quantum falls
within
the jurisdiction of the magistrate’s courts, but the plaintiff
elects to proceed in the High Court with the prosecution
of his or
her claim.
[36] In a number of cases this court has awarded damages within the
jurisdiction of the magistrate’s court but has nonetheless
awarded costs on the High Court scale without giving any reasons
therefor. The following recent cases fall into this category:
Gobuamang v Minister of Police
;
[8]
Rowan v Minister of Safety and Security NO
;
[9]
Greenburg v Du Preez & Another
;
[10]
Letlalo v Minister of Police
;
[11]
Moses v Minister of Safety and Security
.
[12]
[37] There also a number of cases in which, in similar circumstances,
this court has awarded costs on the magistrate’s court
scale.
In some, such as
Mashigo v Minister of Police
,
[13]
the court has not provided reasons for this. In others, the
court made the costs award on the basis that the quantum of damages
fell within the monetary jurisdiction of the magistrate’s
court. This was provided as the reason in
Tladi v Minister
of Safety and Security
;
[14]
Guidone v Minister of Safety and Security
;
[15]
and
Ngcobo v Minsiter of Police
.
[16]
[38] Mr du Bruyn pointed out that while the value of the quantum is a
factor to be considered in determining which scale of costs
should
apply, this is not the sole relevant factor. In
Vermaak v
Road Accident Fund
,
[17]
it was held that the amount of the judgment is not the only
consideration in determining this issue, although it is always an
important consideration.
[39] One of the factors that has been recognised as being of
significance by this court is the importance of the constitutional
rights that underlie matters of this nature. Any claim based on
unlawful arrest and detention necessarily involves the violation
of
the plaintiff’s rights to, among others, freedom and security
of the person,
[18]
and the
section 35
rights that are applicable to accused, arrested
and detained persons. That such violation usually occurs at the
hands of
public officials entrusted with maintaining law and order is
a further factor pointing to the seriousness of the situation.
As was noted in
Mvu v Minister of Safety and Security
,
[19]
the grant of costs on a High Court scale for awards that fall within
the jurisdiction of the magistrate’s court is often
justified
on the basis of the importance courts attach to questions of unlawful
arrest and detention, and the inherent public interest
in these
matters.
[40] This principle was very recently referred to in
R A and
Others v Minister of Police
.
[20]
In that judgment, two judges of the Gauteng Division, Pretoria noted
that:
“This matter dealt with the violation of important
constitutional rights and rights of privacy and personal integrity of
the appellants. This case also bears a public interest element
as, inter alia, it relates to unlawful conduct by the SAPS
and the
protection of the rights of citizens. An attack on the rights
of the individual is an attack on the community and
the grinding down
of individuals’ rights erodes the rights of the community as a
whole. Therefore in this type of case
the impact is not limited
to the individuals but extends to the community of which they form
part. This underscores the importance
of the matter.”
[41] I pause to point out that the case of
R A & Others
involved what can only be described as rampant abuse by the police of
their powers of entry and arrest. They entered a family
home in
the middle of the night, and held the family up at gunpoint while
searching for a suspect. They failed to identify
themselves as
police officers until well into the saga. It transpired that
they had come to the wrong address. The
plaintiffs in that
matter relied on the testimony of medico-legal experts to prove their
damages in respect of the anxiety, depression
and PTSD suffered by
the plaintiffs as a result of the police’s conduct. It
was, as the court described it, a case
of “
more than
ordinary difficulty
”.
[21]
Despite awarding each of the plaintiff’s an amount of R200 000.
00 in damages, the court awarded costs on the High
Court scale.
[42] Mr de Bruyn suggested that other factors that might warrant High
Court costs being awarded in these types of cases include
the nature
of the conduct of the police officials concerned; the conduct of the
defendant in the course of the proceedings; the
unintentional and
unjust results of an award of costs on a lower court scale; and the
deterrent effect of awarding costs on a High
Court scale.
[43] I accept, as indeed I must, that where constitutional rights are
violated a party may be justified in instituting proceedings
in the
High Court albeit that the quantum of their damages falls within the
magistrate’s courts monetary jurisdiction.
Further, that
such a party will not necessarily run the risk of being limited to an
award of costs on the magistrate’s court
scale.
[44] However, the flip side of the coin also applies. In other
words, simply because wrongful arrest and detention matters
inherently involve the violation of important constitutional rights
does not mean that a plaintiff is protected from this risk.
To
protect their own interests plaintiffs in these matters should avoid
proceeding on the assumption that the High Court will always
be the
appropriate forum.
[45] The present case is a good example of the dangers of this
approach. As I have already noted, the plaintiff made no
attempt to justify the substantial amount of the quantum cited in the
summons. Although this may be justified at a superficial
level
on the basis that it was simply an estimate at the commencement of
proceedings, the plaintiff did nothing in the run-up to
the trial to
re-assess the quantum. It was only when the trial commenced
that a more realistic assessment was given by the
plaintiff. In
fact, it was only in closing argument that plaintiff’s colours
were pinned to the mast on this score,
and it was accepted on his
behalf that a substantially reduced quantum would be appropriate.
I should add that this was not
as a result of the trial taking an
unpredictable course. On my assessment, it should have been
clear from the time that the
claim was instituted that the quantum
was unreasonable given the facts of the case.
[46] From the pre-trial minutes it appears that the parties gave no
consideration to the issue of whether the quantum claimed was
realistic, or whether the matter should be transferred to the
magistrate’s court. The plaintiff gave no indication
that
it intended to call expert witnesses to prove the alleged damages
arising from trauma, emotional shock and psychological harm.
There was no attempt to lead any evidence by the plaintiff that he
had suffered any injury of this kind. The matter was simply
not
canvassed at all.
[47] The trial proceeded in a pedestrian manner. There were
only three witnesses in all. Their evidence was brief.
None of the witnesses was subjected to lengthy or probing
cross-examination from the other side. The factual issues
raised
by the evidence were far from complex, as were the legal
issues. It is a matter that quite easily could have been dealt
with
by attorneys in court.
[48] But for my queries regarding the issue of costs (and Mr de
Bruyn’s very helpful submissions in this regard), no issue
of
any significance troubled the court or counsel. In short, it
was a trial that was eminently suited to being conducted
in the
magistrate’s court.
[49] While a plaintiff like Mr Lequoa has the election to proceed in
the High Court, in my view this is an election that must be
very
carefully considered before the proceedings are launched. The
plaintiff’s legal advisers have the responsibility
to give
proper guidance to a litigant in this regard.
[50] The assumption ought not to be that all unlawful arrest and
detention matters must be heard in the High Court. Much
will
depend on the facts of each case, and factors such as the
complexities involved, the level of violation of the rights involved,
the conduct of the arresting officers, and the public interest
element in ensuring that appropriate matters are ventilated in the
higher courts. Of course, the quantum of the claim is an
essential factor although not necessarily decisive. However,
a
plaintiff who unrealistically over-estimates his or her quantum to
bring it within the jurisdiction of the High Court runs the
very real
risk that they will be deprived of costs on a High Court scale.
[51] It is unfortunate that in a case like the present neither of the
parties paid much heed to whether the High Court was the
appropriate
forum, or to the question of the appropriate scale of costs.
While the primary obligation rests with the plaintiff
to ensure that
he or she selects the correct forum there is also a responsibility on
the state’s legal advisers to indicate,
as early as possible,
that they will take issue with the plaintiff’s election to
proceed in the High Court, if such an objection
is appropriate. If
this is done, the result may well be that at the pre-trial stage the
parties agree to the matter being
transferred to the magistrate’s
court, for the benefit of both parties and, I might add, for the
benefit of the courts involved.
[52] Furthermore, a proper assessment as to the correct forum may
avert the risk of a plaintiff’s modest damages award being
decimated by his or her liability to pay for disbursements (such as
counsel’s fees) that are not recoverable to the full
extent
from the defendant because the costs are awarded on the lower,
magistrate’s court scale.
[53] In summary, then:
[53.1]A plaintiff has the right to elect to institute his or her
claim for damages for unlawful arrest and detention in the High
Court
regardless of the fact that the quantum of damages falls within the
monetary jurisdiction of the Magistrate’s court.
[53.2]However, plaintiffs in such cases ought to be aware of two
related factors before they institute proceedings:
[53.2.1.]First, the quantum of damages awarded for claims based on
unlawful arrest and detention in most cases will fall well within
the
monetary jurisdiction of the magistrate’s court.
[53.2.2.]Second, if they nonetheless elect to proceed with their
claim in the High Court, they run the real risk that they will
not
recover costs on the High Court scale.
[53.3]A plaintiff should give careful consideration, prior to
launching an action for unlawful arrest and detention, and
thereafter,
up to and including at the pre-trial stage, as to whether
the elected forum is appropriate given the particular facts of his or
her case. At the end of the day, the plaintiff bears the onus
of justifying his or her election.
[53.4]If a plaintiff elects to proceed in the High Court, he or she
runs the risk that costs may be awarded on the Magistrate’s
court scale. In such a case, the plaintiff may find that he or
she is liable to his or her instructing attorney for disbursements
expended on the High Court scale (counsel’s fees being the
obvious example) that are not recoverable from the defendant under
the costs order. The effect of this may be to render nugatory
the damages awarded.
[53.5]This is one of the reasons why the plaintiff’s legal
advisers have a particular obligation to ensure that a plaintiff
is
correctly guided in his or her election as to whether to proceed in
the High Court or the magistrate’s court.
[53.6]Similarly, the defendant’s legal advisers also have an
obligation to consider the issue and to raise any dispute regarding
the appropriate forum and scale of costs as early as possible.
[54] As far as the facts of the present matter are concerned, I have
already indicated that there seems to have been an unrealistic
estimate of quantum from the word go. This brought the case
within the jurisdiction of the High Court on an erroneous basis,
and
clouded the actual complexities and import of the matter. The
plaintiff re-assessed quantum at a very late stage, providing
little
opportunity for the parties to consider in time whether the matter
was more suited to being ventilated in the magistrate’s
court.
Effectively, when the issue of the appropriate forum and the scale of
costs arose, counsel was already on brief in
the matter and the
disbursements relating to his fees were inevitable.
[55] Neither the complexities of the matter, or the nature of the
police conduct in effecting the unlawful arrest and detention
in my
view warrant costs being awarded on a High Court scale. This
matter falls on the opposite end of the spectrum to cases
like
R A
& Others
that involved extremely serious misconduct on the
part of the police. The police misconduct in that matter
spilled into the
trial, with police witnesses giving patently false
evidence. None of that applies here. In the matter before
me, the
police arrested Mr Lequoa and his friends. They thought
that the arrest was warranted under the
Liquor Act. It
was
not. Mr Lequoa spent a relatively short time in custody, in
conditions that, while by no means hospitable, were not horrendous.
The police witnesses gave straightforward evidence at the trial and I
have no reason to think that they were trying to mislead
the court.
[56] Mr de Bruyn submitted that the defendant ought to have settled
this matter a long time ago and that the failure to do so warranted
a
costs award on a High Court scale. He also pointed out that the
defendant had put in a bare denial plea, and that there
had been a
delay on the defendant’s part.
[57] In my view these are not issues that warrant the grant of costs
on the High Court scale. The plaintiff’s own particulars
of claim are hardly a model of specificity. This is illustrated
by what must surely have been the rote inclusion of emotional
shock
and psychological trauma in the particulars of claim without any
attempt to establish this at the trial. In these circumstances,
I do not believe that the nature of the defendant’s plea
deserves particular censure.
[58] Furthermore, this was also not the kind of case where it can be
said that the defendant unreasonably persisted with his defence.
This is particularly so given that the plaintiff persisted in the
unrealistic claim of damages in the amount of R500 000. 00.
This is not a reason to order costs on the High Court scale.
[59] The only issue I need to give particular consideration to is the
possibly unjust consequences for the plaintiff if I order
costs on
the magistrate’s court scale. More particularly, if I do
this, then the plaintiff runs the risk I referred
to earlier.
His relatively modest award of damages may well be eaten up in its
entirety if, as a result of being awarded
costs on the magistrate’s
court scale, he becomes liable to his attorney for the costs of his
counsel’s fees, and similar
disbursements, the full extent of
which will not be recoverable from the defendant.
[60] Mr de Bruyn suggested that a via media would be for the court to
order costs on the magistrate’s court scale, but to
include the
costs of counsel’s fees (at the High Court level at which they
have been disbursed) in the costs order.
[61] I have thought carefully about this suggestion. However,
one of the important considerations in my view is that it is
the
plaintiff’s legal representative’s duty to properly
advise a client as to the appropriateness of his or her legal
forum
(and hence as to the scale of fees that will be applicable should he
or she succeed). On the facts I have already cited,
it seems to
me that there was a failure to give proper consideration to this
issue from inception. It is difficult to understand
on what basis the
plaintiff was advised that his particular arrest and detention
warranted damages falling within the jurisdiction
of the High Court.
The only reasonable conclusion I can draw is that not much
consideration was given to this issue.
[62] The plaintiff is a young man of modest education. He
testified that he obtained a Grade 11 at school and at the time
of
the arrest was employed as a shop assistant at Pep Stores. He
has no legal training. It is safe to say that he was
dependent
on his legal advisers to guide him in his litigation. In my
view, he should not have to carry the costs of counsel’s
fees
as a result of these not being recoverable from the defendant.
Equally, though, this is not a cost that should be borne
by the
defendant in circumstances where the case warrants only costs on a
magistrate’s court scale.
[63] I conclude in this regard that the plaintiff’s attorney
must bear the costs of counsel’s fees to the extent that
they
are not recoverable from the defendant. As I have said, it was
ultimately plaintiff’s legal representatives who
bore a
responsibility to ensure that the plaintiff was protected from this
risk. They ought to bear the consequences.
[64] In the final result, while Mr Lequoa succeeds in his claim for
damages, I find that he is only entitled to costs on the magistrate’s
court scale.
[65] I make the following order:
1. The defendant is ordered to pay damages to the plaintiff in the
amount of R25 000. 00 (twenty five thousand rand) together with
interest as prescribed by law for his unlawful arrest and detention;
2. The defendant is directed to pay the plaintiff’s legal costs
of the action on the magistrate’s court scale;
3. It is ordered that the plaintiff’s attorneys may not recover
from the plaintiff the cost of counsel’s fees to the
extent
that these are not recoverable from the defendant.
R KEIGHTLEY
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Date Heard: 6-7 May 2016
Date of Judgment: 10 May
2016
Counsel for the Plaintiff:
Adv L du Bruyn
Instructed by: Bessinger
and Keyser Attorneys
Counsel for Defendant: Adv Zondi
Instructed by: State Attorney, Johannesburg
[1]
Minister of Law and Order v Hurley
1986 (3) SA 568
(AD)
[2]
2006 (6) SA 320
(SCA)
[3]
Para 18
[4]
Para 17
[5]
De Winter v Ajmeri Properties and Investments
1957 (2) SA
297
(D);
Rajah v Manning
1959
(1) SA 834
(N);
Palmer v
Goldberg
1961 (4) SA 781
(N);
Ramsuran v Yorkshire Insurance
Co Ltd
1965 (2) SA 263
(D);
Jeftha v Williams
1981 (3) SA
678
(C)
[6]
Palmer v Goldberg
, above;
Mofokeng v General Accident
Versekering Bpk
1990 (2) SA 712
(W)
[7]
Van Loggerenberg et al
Erasmus Superior Court Practice
[Original Service, 2015] d5-15
[8]
Unreported judgment of Saldulker J, SGHC, case number 2011/25524,
dated 26 August 2011
[9]
[2013] All SA 443
(SGJ)
[10]
Unreported judgment of Meyer J, SGHC, case number 2002/23302, dated
31 March 2013
[11]
Unreported judgment of Francis J, SGHC, case number 2012/28575,
dated 28 March 2014
[12]
Unreported judgment of Baloyi AJ, GLD, case number 2013/6983, dated
20 February 2015
[13]
Unreported judgment of Mudau AJ, GLD, case number 2013/9075, dated
11 September 2015
[14]
Unreported judgment of Moshidi J, SGHC, case number 2011/5112,
dated 24 January 2013
[15]
Unreported judgment of Vilakazi AJ, GLD, case number 2008/37480,
dated 11 June 2015
[16]
Unreported judgment of Chaitram AJ, GLD, case number 2014/34632,
dated 21 October 2015
[17]
2006 JDR 0182 (SE)
[18]
In terms of section 12 of the Constitution.
[19]
2009 (6) SA 82
(GSJ)
[20]
Unreported judgment of Tolmay & Tuchten JJ, GDP, case number
2010/19296, dated 21 April 2016, at para 34
[21]
Para 37