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[2019] ZAGPJHC 296
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Maphoto and Others v Minister of Police and Another (A3172/18) [2019] ZAGPJHC 296 (29 August 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE No: A3172/18
In
the matter between:
SIMON MMAPHUTI
MAPHOTO 1
st
Appellant
MAPETU PHILEMON MAKWENG
2
nd
Appellant
MLUNGISI VINCENT
MNGADI 3
rd
Appellant
BUSISIWE GLADNESS
ZIKALALA 4
th
Appellant
FIKILE CONSTANCE
MBONGWE 5
th
Appellant
ALLOCIOUS OLEBOGENG
NTULI 6
th
Appellant
PHADI SHAUN
LENCWE 7
th
Appellant
BEN BUOANG
NTSHOLANE 8
th
Appellant
NOMZAMO CYNTHIA
NTETH 9
th
Appellant
VUSUMUZI SYDNEY
KUNENE 10
th
Appellant
MLUNGISI
NTETHO 11
th
Appellant
SIPHO ALFRED
SHOZI 12
th
Appellant
HLABEKILE
MAHLANGU 13
th
Appellant
MASEGO SHADRACK
MEGALANYANE 14
th
Appellant
THOBILE CYNTHIA
MOLOI 15
th
Appellant
KEITUMETSE HARRIETTE
MONCHUSI 16
th
Appellant
MBALI PATIENCE
MCHUNU 17
th
Appellant
WEZIWE EDITH
MAGWANYA 18
th
Appellant
BUYELWAJINI FIKILE
NDLOVU 19
th
Appellant
LESPHORO ERNEST
MAKWENG 20
th
Appellant
KHOLISWA
ZIMBI 21
st
Appellant
KHAZAMULA JEFFREY
MASHALI 22
nd
Appellant
PHYLLIS HLEZIWE
NXUMALO 23
rd
Appellant
KAGISO JAFTER
MATLHARE 24
th
Appellant
MORAKANE MARY
MOSAKA 25
th
Appellant
HLENGANI DANIEL
MALULEKE 26
th
Appellant
MAROPENG EMMANUEL
MAPHOTO 27
th
Appellant
JOSEPH MNGOMEZULU
28
th
Appellant
KHAZAMULA RECKSON MALULEKE
29
th
Appellant
MBONISENI
LUSHOZI 30
th
Appellant
JAMES
MEFOLO 31
st
Appellant
BONGEKILE HLENGIWE
ZULU 32
nd
Appellant
TRINITY BALESENG
MEGALENYANE 33
rd
Appellant
SAKHILE DANIEL
ZWANE 34
th
Appellant
SLINDILE
PIYOSE 35
th
Appellant
KHULANI
NDLOVU 36
th
Appellant
SFISO
NGUBANE 37
th
Appellant
CELSA VICENTE
FONDO 38
th
Appellant
JOHANNES
MEHLAPE 39
th
Appellant
DAZA
LUSHOZI 40
th
Appellant
FLORENCE
MTHIMKHULU 41
st
Appellant
AGOSTINHO ANTONIO
CHALE 42
nd
Appellant
MATLOU
MAPHOTO 43
rd
Appellant
XOLISILE WINLOVE
MBONANI 44
th
Appellant
DELIWE
NYANDU 45
th
Appellant
THEMBISILE
MTUNGWA 46
th
Appellant
and
THE MINISTER OF
POLICE 1
st
Respondent
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS 2
nd
Respondent
JUDGMENT
Ingrid OPPERMAN j
INTRODUCTION
[1]
On
20 June 2018 this court set aside and replaced an order granted by
Magistrate Beharie in the Johannesburg Magistate’s Court
dismissing a claim instituted by the appellants against the
respondents in which they claimed damages arising out of their
unlawful
arrest and detention. Merits and quantum had been separated
and this court declared that the first respondent was liable for 100%
of any damages the appellants might prove. The matter was remitted
back to the Magistrate’s Court for the hearing on the
quantum
of such damages.
[2]
On
19 October 2018, Magistrate Sibonyoni granted judgment for the 12th
appellant in the sum of R40 000 together with interest from
date of
judgment and costs and for the 15
th
appellant in the sum of R45 000 together with interest as aforesaid,
and costs. Absolution from the instance was granted
against the
remainder of the 44 appellants. This appeal lies against these
orders.
[3]
The
12
th
and the 15
th
appellants testified and the remaining 44 appellants did not. The
magistrate found that those who had not adduced any evidence,
had
failed to prove their damages and granted absolution from the
instance.
THE FACTS FOUND BY THE FULL BENCH
ON 20 JUNE 2018
[4]
On
26 August 2008, and under case number 2008/19472 issued out of this
court, 17 respondents and “further unlawful occupiers
of Erf
[…]8 and […]9 Bellevue Hillcrest Mansions” (‘
the
property’
)
were ordered by Malan J to be evicted from such property within 30
days of the granting of the order. The eviction order was granted
in
favour of Abraham Aubrey Levert, the owner of the property (“
the
owner
”).
[5]
Four
years and seven months later, on 22 March 2013, the deputy sheriff
evicted all of the occupants of the property. The deputy
sheriff
deposed to an affidavit on 18 March 2015 stating that the eviction
was pursuant to the court order dated 26 August 2008.
The evicted
occupants of the property were no longer 17 plus “further
unlawful occupiers of Erf […]8 and […]9
Bellevue
Hillcrest Mansions” but rather all the occupants of the
property.
[6]
On
the same day, being 22 March 2013, the appellants obtained an order
by Satchwell J in the urgent court of this Division, restoring
peaceful and undisturbed occupation of the property and interdicting
and restraining the owner from evicting the appellants pending
the
finalisation of an eviction application. Satchwell J gave further
directives on how the eviction application was to be prosecuted.
[7]
Seven
months later, on 18 November 2013, the appellants obtained an order
from Vally J rescinding the eviction order of 26 August
2008. This
order, however, rescinded an eviction order under case number
32404/08, a case number different from the original order
under which
the order on 26 August 2008 had been granted.
[8]
On
28 May 2015 Captain Bila (‘
Capt
Bila
’),
a police officer, received an instruction from the investigating
officer in the matter, Constable Mbombi (‘
Cst
Mbombi
’),
to gather manpower and arrest the appellants. This arrest, according
to Capt Bila, was effected pursuant to the 26 August
2008 eviction
order and a complaint laid by the owner against the appellants for
trespassing. The owner of the property had, approximately
three
months prior to the arrests, complained about the appellants
trespassing on the property. According to Capt. Bila, he was
given a
docket by Cst Mbombi which contained the 26 August 2008 order and was
told by Cst Mbombi that it was valid because she
(Cst Mbombi) had
investigated this aspect and the order was extant. She was not called
to testify. The restoration order of 22
March 2013 was missing from
the docket. Capt Bila was accompanied by the owner when he effected
the arrests. Capt Bila had not
enquired from any of the appellants
about the lawfulness of their occupation.
[9]
The
appellants were arrested, detained, taken to court the following
morning and released on warning in the afternoon. They attended
court
on numerous occasions thereafter until the charges were withdrawn on
6 April 2016.
EVIDENCE PRESENTED IN THE COURT
A
QUO
[10]
Appellants
12 and 15 testified. Their evidence was largely undisputed.
[11]
Appellant
12 testified that at the time of his arrest, he was 45 years old and
lived with his wife and small children, a boy aged
1 year and 3
months (his grandchild) and a girl aged 7. He had passed matric
during 1990. At the time of his arrest, he had already
worked as a
general worker for about 20 years at a company called Footwear
Trading. The police arrived between 22h00 and 22h30.
[12]
An
unknown number of police came to his flat and knocked on the door.
When he opened the door, the police told him to get
dressed. At the
time, the children were awake and his youngest was crying because she
did not know what was happening. He asked
the police what he had done
but did not get any response. The police said they should get
dressed so that they could leave.
Outside he found other community
members who had been instructed to form a queue. They were
placed in a police van and taken
to the Hillbrow Police Station. At
the Hillbrow Police Station, they were made to sit in an open area
where fingerprints were taken.
Upon asking the police why their
fingerprints were being taken, they were shown pictures and told that
they had been arrested for
the “hijacking” of a building.
They were told they were living in the property unlawfully.
Thereafter they were taken
to a big room where they had to wait until
the next morning. There was nowhere to sleep. He explained that the
place where they
were kept was an open area with a gate. There
was a toilet right “near” them. The conditions in the
place where
they were kept were dirty. There was no privacy,
the toilet was open, and people were relieving themselves in full
view of
the other occupants. There was a lot of dust on the ground,
no blankets and it was cold. It was cold because, since he did not
know he was going to be arrested, he did not dress warmly. He
testified that everyone was scared as they were arrested for
something
of which they knew nothing. The incident was particularly
traumatic for him as the children had been left alone at the flat and
he did not know who was taking care of them. His wife was also
arrested, and she was appellant number 32. Only when
he came
back to the flat did he find out that the security guards had been
looking after the children. His daughter cried
when he arrived
back. He (and others) were taken to court the following day after
receiving tea, where he was released on warning
at about 14h00.
He did not have any difficulties with his employer regarding his
absence since he had proof from the police
in the form of a letter,
explaining what had occurred.
[13]
Appellant
15 testified that she was a 44-year old woman, a mother of an 11-year
old boy. She, the father of her child and the child,
reside at the
property. She was arrested at the same time as appellant 12. She
completed Form 5 which is the equivalent of a matric.
At the time
when the police arrived, she was not at the property as she had gone
to the hospital to take toiletries to a fellow
tenant who had just
given birth. She arrived back at about 21h00 with another tenant.
They could not find parking as the police
vehicles had blocked all
the parking spaces. They encountered metro police officers and police
officers, who asked them if they
lived there. When they
answered that they do, the police told them to get in line and take
out their identity documents (‘
ID’s
’).
She saw people coming down from their flats. She saw another person
who was fighting with the police as he did not want
to get into the
police van. Some were already in the police van. She then asked the
female metro police officer at the gate what
was wrong, but she
simply said that she must not ask questions and just get in the
line. She did not even get to go to her
flat. She thought that,
since there was a vehicle from Home Affairs, they were looking for
people’s ID’s. Like the
others, she too got into the
police van and was taken to the Hillbrow Police Station. It all
happened very fast. They got
off in the parking area of the police
station and they were asked for their ID’s whereafter the
police made them ‘write’
some things and then ushered
them into a cell with about 20 other women.
[14]
The
conditions in the cells were bad as most of them (not the witness
herself) were wearing pyjamas. The cells were cold and smelt
foul
because of a blocked toilet which could not be flushed. Some were
scared and some of them had never been arrested before.
When
they were given food, she and other inmates could not eat because
they were looking at the faeces from the toilet and the
stench was
unbearable. She asked a police officer to do something about it.
He said he would return with a female officer,
but the police officer
never returned. Someone arrived the following day to fix the toilet.
Neither the witness nor her fellow
detainees could use the toilet
even though they needed to. They eventually urinated at the
cell door, but still had to stay
in the cell. They were only taken to
court at approximately 14h00. She felt ‘
disappointed
’
because she felt like a criminal. She did not know why she had
been arrested. She had to leave her child behind in
the flat as both
she and the child’s father (appellant 24) had been arrested.
THE GROUNDS OF APPEAL
Absolution from the instance
[15]
The
appellants contended that the court
a
quo
had misdirected itself when it found that there was no factual basis
for an assessment of the quantum of damages in respect of
all the
appellants (‘
the
remaining appellants’
),
save for appellants 12 and 15, by virtue of the fact that they did
not testify at trial.
[16]
The
court
a
quo
quoted a passage from the textbook titled “
The
Law of Personality”
[1]
which sets out the factors that ought to be taken into account when
assessing the quantum of damages in wrongful arrest and detention
matters. They are: (a) the circumstances under which the deprivation
of liberty occurred; (b) the presence or absence of malice
or an
improper motive on the part of the defendant; (c) the duration of the
deprivation of liberty; (d) whether the defendant apologised
or
provided a reasonable explanation for what happened; (e) the honour
and reputation of the victim and (f) previous awards in
comparable
cases.
[17]
Save
for those relating to (e), the court was appraised of all the facts
underpinning the considerations listed by the learned authors.
The
circumstances under which the deprivation of liberty occurred were
known with reference to the evidence tendered during the
merits
portion of the trial as appears from the appeal judgment dated 20
June 2018 (and summarised herein), which includes that
all the
appellants were detained at the Hillbrow Police Station and were
released on warning at about 14h00 in the afternoon of
29 May 2015,
that all the appellants were arrested pursuant to the very same
rescinded order, that the existence of the restoration
order was not
brought to the attention of the police before the arrest of the
appellants and that the police had not sought any
explanation from
the appellants regarding the lawfulness of their occupation of the
building. No apology had been tendered by the
respondent. The
duration of the deprivation of liberty of the appellants was
established to be overnight from around 23h00 on 28
May 2015 to
approximately between 14h00 to 15h00 of 29 May 2015 after which the
appellants were released at court after their first
appearance.
Accordingly, they were detained for approximately 16 hours.
[18]
In
declining to award damages to the appellants, solely on the basis
that the appellants had not personally testified, the court
a
quo
overlooked
the aforesaid factors.
[19]
Any
wrongful arrest and detention is inherently degrading and
traumatising to the victim of such arrest and detention.
[2]
[20]
In
Olivier
v Minister of Safety & Security And Another
[3]
the
court reasoned as follows regarding the plaintiff’s failure to
lead evidence regarding his personal circumstances in a
claim for
wrongful arrest and detention:
“
The
plaintiff closed his case without leading any evidence. Mr
Joubert, who appeared on behalf of the defendants, criticised
the
plaintiff for his failure to testify. In
Titus
v Shield Insurance Co Ltd
1980 (3) SA 119
(A) Miller JA at 133E said:
“
It
is clearly not an invariable rule that an adverse inference be drawn;
in the final result the decision must depend in large measure
upon
‘the particular circumstances of the litigation’ in which
the question arises. And one of the circumstances
that must be
taken into account and given due weight, is the strength or weakness
of the case which faces the party who refrains
from calling the
witness.”
In
my view the above comments of Miller JA are paramount where the
defendant such as is the case here, bears the onus. It
is quite
permissible for a plaintiff in a case of unlawful arrest, when the
onus rests on the defendant, when the facts are largely
common cause
and the unlawfulness of the defendant’s conduct can be
ascertained from those facts and the evidence presented
by the
defendant, to refrain from giving evidence. Even more so where
there is nothing for the plaintiff to rebut, such as
was the case
here. In my view nothing sinister can be read into the
plaintiff’s decision not to give evidence in the
circumstances
of the case.”
[21]
In
Chamberlain
v Minister Police
[4]
,
the
plaintiff elected not to testify. The period and condition of
the detention were known and the court awarded the plaintiff
damages
in the amount of R100 000 despite the following aspects of his
personal circumstances not being available:
“
[29]
In the present case the plaintiff chose not to testify. There
is no evidence before me of his age, level of education
or
occupation. The arrest did occur in the public eye and there is
no evidence before me of any extraordinary features which
may have
exacerbated the humiliation ordinarily associated with an arrest.
The only evidence placed before me in respect
of the circumstances of
his detention emerged from the cross-examination of Mlaza who
testified that the plaintiff was detained
in a large cell together
with other suspected offenders. The cell has a sleeping area,
toilet and shower, however, there
are no beds or other furniture upon
which to sleep. Mlaza confirms that during the detention of the
plaintiff he, together
with other prisoners, would have been
regularly fed. He is unable to provide particulars of the menu
or the times at which
prisoners were fed as these functions are
performed by the Uniform Branch….. There has been no
suggestion in the evidence
of Mlaza, or any other police officer,
that they had dealt harshly with the plaintiff either at the time of
his arrest or during
his detention. The evidence does not
establish the status or standing of the plaintiff in society nor is
there any evidence
relating to his health. The evidence does
not suggest any publicity given to his deprivation of liberty.”
[22]
In
Mapurunga
v Minister of Police
[5]
the
court, despite the fact that the plaintiff did not testify as to
quantum, nevertheless made an award premised upon, amongst
other
sources, the evidence elicited from the arresting officer. The
court found that even though it would have been very
helpful to the
court if the plaintiff had testified to his personal circumstances,
the court could not hold it against him, more
so because the onus was
on the defendant to establish the lawfulness of the arrest and
detention.
[6]
[23]
In
Gabayi
and Another v Minister of Police and Another
[7]
one
of the plaintiffs passed away after the proceedings were instituted.
Litis
contestatio
had
therefore taken place before his death and the executrix was
therefore competent to pursue the matter to its finality.
With
specific reference to the deceased’s claim for damages flowing
from his unlawful arrest and detention, the court found
that the
defendant did not discharge the onus of justifying the arrest and
detention and therefore the plaintiff was entitled to
damages by
virtue of the onus being upon the defendant.
[24]
The
appellants argued, and we agree, that a concession by a defendant or
a pronouncement by a court that an arrest and detention
is unlawful,
ipso
facto
entitles the victim to an award of appropriate general damages
flowing therefrom.
[8]
Of course it is advisable that the personal circumstances and the
impact the arrest had on the particular individual concerned
would be
helpful in assessing damages but to contend that the appellants had
not shown that they were entitled to at least R1 because
they did not
testify, which is the effect of the judgment of the court
a
quo
,
has no foundation in law or in fact and goes against the very spirit
of the values entrenched in our Constitution.
[25]
The
order granting absolution in respect of the remaining appellants,
accordingly falls to be set aside.
Quantum of appellants 12 and 15 and
the remaining appellants
[26]
Appellant
12 was awarded R40 000 in damages and appellant 15, R45 000. Their
counsel, Mr van Rooyen, in his very able argument,
submitted that
there is a striking disparity between what the court
a
quo
ought to have awarded and what it in fact awarded, and this would
entitle this court to set the awards aside and make the appropriate
awards.
[27]
He
argued that the court
a
quo,
had
failed to afford the following facts which were common to all
appellants, the appropriate weight:
27.1.
The
severity of the circumstances and extreme inconvenience and
discomfort the appellants suffered by being arrested very late at
night;
27.2.
The
rounding-up of all the appellants like cattle in the parking garage
of the building and herding them into police vans;
27.3.
The
humiliation and hardship endured by the appellants when they were
detained in overcrowded cells under conditions which were
not
consonant with human dignity or compliant with the Constitution;
27.4.
The
fact that the appellants were all detained in cells that had no
working ablution facilities and that there were no blankets;
27.5.
That
they had nowhere to lay down as there was not enough space in the
cell to accommodate all the detainees; and
27.6.
The
fact that the appellants were not treated in accordance with the
presumption of innocence, but as criminals.
The general approach in the
assessment of damages for unlawful arrest and detention
[28]
The
Supreme Court of Appeal held as follows in
Minister
of Safety and Security v Tyulu
:
[9]
‘
In
the assessment of damages for unlawful arrest and detention, it is
important to bear in mind that the primary purpose is not
to enrich
the aggrieved party but to offer him or her some much-needed solatium
for his or her injured feelings. It is therefore
crucial that serious
attempts be made to ensure that the damages awarded are commensurate
with the injury inflicted. However, our
courts should be astute to
ensure that the awards they make for such infractions 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. I readily concede that
it is impossible to determine an award of
damages for this kind of injuria with any kind of mathematical
accuracy. Although it
is always helpful to have regard to awards made
in previous cases to serve as a guide, such an approach if slavishly
followed can
prove to be treacherous. The correct approach is to have
regard to all the facts of the particular case and to determine the
quantum
of damages on such facts (
Minister
of Safety and Security v Seymour
2006 (6) SA 320
(SCA) at 325 para 17;
Rudolph
and Others v Minister of Safety and Security and Another
2009 (5) SA 94
(SCA) ([2009] ZASCA 39) paras 26–29).’
Factors that can play a role in the
assessment of damages
[29]
The
authors of Visser & Potgieter
Law
of Damages
have extracted from South African case law the following factors
which can play a role in the assessment of damages:
[10]
‘
In
deprivation of liberty the amount of satisfaction is in the
discretion of the court and calculated ex aequo et bono. Factors
which can play a role are the circumstances under which the
deprivation of liberty took place; the presence or absence of
improper
motive or ‘malice’ on the part of the defendant;
the harsh conduct of the defendants; the duration and nature (eg
solitary
confinement or humiliating nature) of the deprivation of
liberty; the status, standing, age, health and disability of the
plaintiff;
the extent of the publicity given to the deprivation of
liberty; the presence or absence of an apology or satisfactory
explanation
of the events by the defendant; awards in previous
comparable cases; the fact that in addition to physical freedom,
other personality
interests such as honour and good name as well as
constitutionally protected fundamental rights have been infringed;
the high value
of the right to physical liberty; the effects of
inflation; the fact that the plaintiff contributed to his or her
misfortune; the
effect an award may have on the public purse; and,
according to some, the view that the actio iniuriarum also has a
punitive function.
[30]
Section
35(2)(
e
)
of the Constitution
[11]
provides as follows:
‘
(2)
Everyone who is detained, including every sentenced prisoner, has the
right –
…
.
(
e
)
to conditions of detention that are consistent with human dignity,
including at least exercise and the provision, at state expense,
of
adequate accommodation, nutrition, reading material and medical
treatment.’
[31]
In
Minister
of Safety and Security vs Seymore
[12]
,
Nugent J A stated at paragraph 17:
‘
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.’
[32]
In
Mandleni
v Minister of Police
[13]
,
Hellens AJ observed as follows in para [13]:
‘
In
Masisi
v Minister of Safety and Security
2011 (2) SACR 262
Mokgoka
J very wisely in my view described the purpose of an award of general
damages in the context of a matter such as the present
as a process
in which one seeks to compensate a claimant for deprivation of
personal liberty and freedom and the attendant mental
anguish and
distress. The right to liberty is an individual’s most
cherished right, and one of the foundational values giving
inspiration to an ethos premised on freedom, dignity, honour and
security. Its unlawful invasion therefore struck at the very
fundament of such ethos. Those with authority to curtail that right
had to do so with the greatest of circumspection, and sparingly.
Where members of the Police transgressed in that regard, the victim
of the abuse was entitled to be compensated in full measure
for any
humiliation and dignity which resulted.’
[33]
Conscious
of the limited value that previous cases provide, I will refer to
certain decided cases and work my way to an appropriate
assessment of
damages in this case.
[34]
In
Baasden
v Minister of Safety & Security
[14]
a
professional landscaper received an award of what is today the
equivalent of R154 000 (original award R120 000) after he was
arrested at OR Tambo Airport. He had been detained overnight on a
charge of alienation of goods, which goods were still on credit.
Whilst the court took cognisance of the fact that it must have been
very humiliating for him to be arrested, no particular negative
conditions of detention were recorded.
[35]
In
Latakgomo
v Minister of Safety & Security
[15]
,
the head of security at a Pick n Pay store, received an award of what
is today the equivalent of R90 000 (original award R80 000)
after he
was falsely accused of stealing chicken from the store where he was
employed. He was arrested whilst on duty in
full view of his
colleagues and customers. He was detained overnight in dire
conditions and only released the next day at
lunch time after the
prosecutor decided not to prosecute.
[36]
In
Tsuma
& Another v Minister of Safety & Security And Another
[16]
,
a security guard was awarded damages in an amount of what today is
the equivalent of R114 000 (original award R65 000) after
having
been arrested and detained overnight from just before midnight and
released at around 10h00 the following day, the period
of detention
being approximately 9 hours.
[37]
In
Louw
v Minister of Safety and Security
[17]
,
a young couple was awarded damages in an amount of what today is the
equivalent of R146 000 (original award R75 000)
for
having been unlawfully arrested and detained for a period of 20
hours. This was in full view of the public in one of
Pretoria’s
busiest police stations. They were both traumatised by the
arrest and were exposed to hardened criminals
and detained under
appalling conditions. They were people who could deal with what
had happened to them and their reputations
had not suffered
materially.
[38]
In
Van
Rensburg v City of Johannesburg
[18]
,
the Plaintiff was a 74 year old male retiree. The Plaintiff was
detained in a holding cell at the Johannesburg Central Prison.
The
Plaintiff spent about 6 hours in custody. The Plaintiff was awarded
general damages of R75 000. Adjusted for inflation
this is
approximately R123 000 in today’s money.
[39]
In
Pasha
v Minister of Police
[19]
Epstein AJ awarded general damages of
R80 000 (in today’s money approximately R112 000).
The
Plaintiff had spent about 9 hours in custody. He
was 40 years old at the time of his arrest. He had a wife
and
children. He worked as a Debt Collector at the office of the State
Attorney in Johannesburg. The Plaintiff knew the Police
Officials who
arrested him as they were colleagues of his wife. After having been
handcuffed, the Plaintiff was led through a shopping
mall which
caused him to feel humiliated, embarrassed and his dignity was
impaired. People who knew the Plaintiff were surprised
to see what
was happening. He was detained in the holding cell with about 7 other
detainees. The toilet in the cell was filthy
and there was no toilet
paper. The blankets provided were dirty. The Plaintiff felt that the
community no longer had confidence
in him and regarded him as a
robber. Sometimes colleagues made negative comments towards him.
[40]
In
Mothoa
v Minister of Police
[20]
,
a matter decided during 2013, the plaintiff was forced to endure a
detention lasting twenty two hours in the holding cells of
the
Johannesburg Central police station under appalling conditions. The
plaintiff was awarded R150 000 (approximately R204 000
today) as
damages for his unlawful arrest and detention.
[41]
In
Black
v Minister of Police
[21]
(decided during 2013), the plaintiff was sleeping inside his parked
vehicle outside a building of flats when he was arrested. He
had
pneumonia and was under medical treatment. He was arrested for
drunkenness. He was refused access to a bathroom and defecated
in his
pants. He was kept in over crowded holding cells both at the police
station and at court. It was mid winter. This ordeal
lasted 40 hours.
Damages in the amount of R140 000 (approximately R187 000 today) were
awarded for his unlawful arrest and detention.
[42]
In
Keitumetsi
Letlalo v Minister of Police
[22]
,
the plaintiff, a hairdresser, photographed with his cell phone,
police officers assaulting two persons. The police demanded the
phone, when he refused he was arrested and detained for 24 hours.
There was no legal basis for his arrest. He was kept in appalling
circumstances. He was awarded R110 000 (approximately R141 000
today).
[43]
Having
regard to the facts as a whole, the past awards and the relevant case
law, in my view a fair and reasonable amount for the
damages to be
awarded to appellants 12 and 15 is R80 000 each and R 60 000 for the
remainder of the appellants. Appellants’
counsel, during
argument, conceded that it would be appropriate to draw a distinction
between the appellants who testified and
those who did not as the
personal information relating to the remainder of the appellants was
lacking.
INTEREST
[44]
We
were requested to order interest to run from date of demand or
service of summons, as provided for in Section 2A of the Prescribed
Rate of Interest Act, Act 55 of 1975. No reason was advanced why this
should not follow and I know of none.
ORDER
[45]
I
accordingly grant the following order:
45.1.
The
appeal is upheld with costs.
45.2.
The
order of the court
a
quo
is set aside and replaced with the following:
45.2.1.
‘
The
1
st
defendant is ordered to pay plaintiffs 12 and 15 the amount of R 80
000 each, together with interest thereon at the rate of 10,25%,
from
date of service of summons until date of payment, both days
inclusive.
45.2.2.
The
1
st
defendant is ordered to pay plaintiffs 1 to 11, 13, 14 and 16 to 46
the amount of R 60 000 each, together with interest thereon
at the
rate of 10,25%, from date of service of summons until date of
payment, both days inclusive.
45.2.3.
The
1
st
defendant is to pay the costs of suit.’
___________________________
I
OPPERMAN
Judge
of the High Court
Gauteng Local
Division, Johannesburg
I Agree
_________________________
H.E
MKHAWANE
Acting Judge of the
High Court
Gauteng Local
Division, Johannesburg
Heard:
6 August 2019
Judgment
delivered: 29 August 2019
Appearances:
For
Appellants: Adv. J.M. Van Rooyen
Instructed
by: N Ndebele Inc Attorneys
For
First Respondent: Adv. S.I. Vobi
Instructed
by: The State Attorney
[1]
Neethling,
Potgieter & Visser, 5
th
Edition at page 130 paragraph 2.4
[2]
Seymor v
Minister of Safety & Security
2006
(6) SA 320
SCA at par [21]; See
Radhuva
v Minister of Safety & Security
[2016]
ZACC 24
at par
[57]
[3]
2009 (3) SA 434
(W) at 440I – 441C
[4]
Unreported, ECLD
3500/2009, 8 May 2014.
[5]
Unreported,
2011/34441 (15 May 2013) GP
[6]
See par [34] of
the judgment
[7]
Unreported,
966/2015 (23 January 2018) ECLD
[8]
Olivier
supra
at
446H-J;
Gabayi
supra
at
par 11(w)
[9]
Minister of
Safety and Security v Tyulu
2009
(5) SA 85
(SCA) paragraph 26 at 93D-F.
[10]
Visser &
Potgieter
Law
of Damages
Third
Edition, pages 545–548. This list of factors has been referred
to with approval in
Ntshingana
v Minister of Safety and Security
(unreported
judgment dated 14 October 2003 under Eastern Cape Division case
number 2001/1639) and
Phasha
v Minister of Police
(unreported
judgment by Epstein AJ dated 23 November 2012 under South Gauteng
High Court case number 2011/25524).
[11]
Constitution of
the Republic of South Africa, 1996.
[12]
2006(6) SA 320
(SCA)
[13]
an unreported
judgement of this division dated 24 April 2017 by Hellens AJ under
case number 37539/14
[14]
11874/2011,
Unreported, 28 February 2014, GNP,
[15]
2016 JDR 1601 (GP)
[16]
(Unreported) (WLD
27661/2006) (30 May 2008)
[17]
2006 (2) SACR 178
(TPD)
[18]
2009 (2) SA 101
WLD
[19]
Unreported
judgment by Epstein AJ, dated 23 November 2012, under South Gauteng
High Court case number 25524/2011.
[20]
An unreported
judgment by Hutton AJ, dated 8 March 2013, under South Gauteng High
Court case number 2011/5056
[21]
An unreported
judgement by Windell J, dated August 2013 under case number
2011/38093
[22]
An
unreported judgment by Francis J, dated 28 March 2014, under Gauteng
Local Division, Johannesburg case number 28575/12