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[2020] ZAGPJHC 205
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Kadur and Others v Minister of Police and Others (2016/8525) [2020] ZAGPJHC 205 (13 May 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 2016/8525
In
the matter between:-
NAAZNEEN
BANU KADUR
First
Plaintiff
SHIREEN
BANU SHAIK
Second
Plaintiff
ZAKIYAH
EBRAHIM
Third
Plaintiff
JAMEEL
EBRAHIM
Fourth
Plaintiff
and
THE
MINISTER OF POLICE
First
Defendant
KGOKARE
WILLIAM MALATJIE
Second
Defendant
DAVID
MALULEKE
Third
Defendant
JUDGMENT
FMM
SNYMAN (AJ)
Introduction
1.
The facts in this matter are shocking.
The first plaintiff, her mother (the second plaintiff) and their
neighbours (the third
and fourth plaintiffs) claim for damages
resultant from unlawful arrest, assault and malicious prosecution
against the defendants
as a result of actions taken by the hands of
the second and third defendant (members of the South African Police
Service “SAPS”)
on Sunday morning, 18 November 2012.
2.
This matter came before me undefended:
no notice of intention to defend was filed on behalf of any of the
three defendants.
3.
The matter was set down and has duly been certified ready for
trial in determination of both merits and
quantum
of the
plaintiffs’ claims.
All four t
he
plaintiffs claim damages suffered as a result of the actions of the
second and third defendant for:
3.1.
Unlawful assault;
3.2.
Unlawful arrest and detention; and
3.3.
Malicious prosecution.
No
appearance for defendant
4.
Before proceeding with a matter where
the defendants are not present, the court has to be satisfied that
that the defendants are
aware of the matter, that they are aware
thereof that the matter may proceed in their absence and that
judgment may be given against
them in their absence. I deem it
sensible for the court in the absence of a notice of intention to
defend, to ensure that:
4.1.
The prescripts of the
Institution of
Legal Proceedings Against Certain Organs of State Act, 40 of 2002
have been met, since the first defendant is a state organ;
4.2.
Proper service of the summons has been effected on each defendant and
that the summons is informative of the consequences should
no
intention to defend be entered;
4.3.
The prescripts of
Rule 31
dealing with default judgments has been
complied with; and
4.4.
It would be in the interest of fairness to both parties and in the
interest of justice that the matter proceed.
5.
I briefly deal with each of these aspects.
Legal
proceedings against state organs
6.
Section 3
of the prescripts of the
Institution of Legal Proceedings Against Certain Organs of State Act,
40 of 2002 (“the Act”)
reads as follows:
“
3
Notice of intended legal proceedings to be given to organ of state
(1)
No legal proceedings for the recovery of a debt may be instituted
against an organ of state unless-
(a)
the creditor has given the organ of state in question notice in
writing of his or her or its intention to institute the legal
proceedings in question; or
(b)
the organ of state in question has consented in writing to the
institution of that legal proceedings-
(i)
without such notice; or
(ii)
upon receipt of a notice which does not comply with all the
requirements set out in subsection (2).
(2)
A notice must-
(a)
within six months from the date on which the debt became due, be
served on the organ of state in accordance with section 4 (1);
and
(b)
briefly set out-
(i)
the facts giving rise to the debt; and
(ii)
such particulars of such debt as are within the knowledge of the
creditor.”
7.
The plaintiff’s attorney did send
a letter to the National Commissioner of the SAPS stipulating the
events that aggrieved
their client. This letter complied with
the formalities laid down in the Act, and was sent within six months
from 18 November
2012.
8.
The first defendant acknowledged receipt
of the letter and responded thereto. I am satisfied that this
letter was duly received
by the first defendant and that these
statutory requirements have been met.
Service
on the defendants
9.
The
summons was issued on 2 June 2015 and proper service in terms of Rule
4(1)(a)(ii)
[1]
has taken place on the first defendant on 6 January 2016 at 11h00 at
the 3
rd
floor, Wachthuis, 231 Pretorius street, being the principle place of
business of the Minister of Police.
10.
The summons was not served
on the second defendant. The return of service reflects that
service was attempted on 10 July 2015
but could not be effected as
the second defendant was “
off
ill”
and the date
of his return was unknown. No further attempts of service on
the second defendant appear to have been made.
The plaintiff
withdrew the claim against the second defendant in court on the basis
that proper service has not taken place.
11.
The summons was duly served on the third
defendant personally by the sheriff on 15 July 2015 at 10h08 at
Booysens Police Station.
12.
The summons duly states that judgment
may be given in their absence should the defendants fail to enter an
appearance to defend
the matter. I am satisfied that the first
and third defendant were informed of the consequences in failing to
defend the
matter.
Rule
31 default judgments
13.
Rule
31 of the Uniform Rules of Court regulates the process in which a
judgment by default can be given.
[2]
14.
The plaintiffs acted well within their
rights to set the matter down to proceed without giving any notice to
the defendants, as
stipulated in Rule 31(2)(a) and Rule(4) of the
Uniform Rules of Court and by virtue of the defendants failing to
enter appearance
to defend the matter.
15.
Put differently: having failed to
deliver a notice of intention to defend, the plaintiffs had no legal
duty to inform the defendants
that the matter has been set down for
hearing.
Interest
of fairness and justice
16.
This is the third time that this matter
is before court. The first time was on 29 September 2017 where
the matter was referred
to open court for the hearing of evidence on
damages by my brother Justice Maoala.
17.
The second time was on 26 June 2018 when
the matter was removed by my brother Acting Justice Chohan. I
am informed by counsel
for the plaintiff that it had to be removed as
no court was available for the hearing of evidence.
18.
The cause of action arose in 2012
already and the plaintiff has been waiting for her day in court from
2015, when summons was issued.
19.
I have satisfied myself that the matter
may proceed on a default basis as there was compliance with the
Uniform Rules of Court as
well as the applicable legislation and
regulations.
20.
I find that it is in the interest of
fairness and justice to both parties that the matter proceed to
finality.
The
facts of the matter
21.
On Sunday morning 18 November 2012 the
first plaintiff woke up at 5am and commenced with her daily routine.
She washed, studied
her Bible (the Qu’ran) spent time in her
morning prayer. At about 7am she went to the kitchen to boil
water for tea
to drink with her mother. She put on some music
and went to her mother’s (the second plaintiff’s) room.
22.
Both the first and second plaintiffs are
devout Muslim woman and after waking up, washing, they individually
spend time in prayer
and reading the Qu’ran before commencing
their day. After their morning devotionals and just after 7am
the first plaintiff
took her and her mother’s tea and sat on
her mother’s bed as was their normal Sunday routine. They
heard a knock
at the window.
23.
The first plaintiff looked out the
bedroom window and saw a man in a police uniform. She and her
mother were expecting the
Police, as there was an altercation the
previous night between them and their neighbours about a parking spot
in the complex where
they resided. The altercation ended up in
the neighbours shoving each other, which ended up in a charge of
assault being
brought by the second plaintiff against their
neighbour.
24.
The first and second plaintiffs expected that the Police where
there to investigate the charge of assault laid the previous night
and the first plaintiff unlocked the security gate at the front door
to let the male police official in. Unexpectedly, the
second
defendant (“Malatji”) immediately and without any
introduction, violently grabbed the first plaintiff by her
shoulders
and shoved her down the hall until her back hit the wall. He
was shouting at her in most incomprehensible sentences,
such as “You
made a disturbance”, “I am here to take you” and “I
am going to kill you”.
The second defendant started
shaking the first plaintiff violently and her head hit the wall
several times. She could smell
alcohol on his breath and
reverberating from his body.
25.
Whilst banging her head against the wall with one hand on her
shoulder, Malatji started fondling the first plaintiff and touching
her inappropriately with the other hand. The first plaintiff
was in her pyjamas, not wearing any underwear. Her pyjamas
consisted of a sleeveless t-shirt and a knee-length bottom short also
made of t-shirt material. The first plaintiff
is very
slight of build and her pyjamas were very loose.
Having her head banged repeatedly, she shouted for help and
whilst trying to keep Malatji’s hands of her, the first
plaintiff
fell unconscious. She regained consciousness while
Malatji was grabbing her by her feet and dragging her outside.
She
scrambled in trying to get hold of anything to resist being
pulled by her feet, but to no avail. She could not get her
hands
under her to prevent her head from banging down the three steps
at the front door. She screamed out loud for him to stop,
and
for anyone to come and help her. This assault occurred slightly
after 7am.
26.
The second plaintiff ran from her room
when she heard the commotion and saw Malatji banging her child
against the wall repeatedly,
screaming he will kill her. She
had time to quickly throw a bathroom robe over her pyjamas. She
tried to inform Malatji
that he has it wrong: they are the victims,
they are the complainants in the disturbance charge of the previous
night. She
saw her child loose consciousness and then saw how
Malatji grabbed her by her ankles and dragged her out of the house.
She
tried her best to get him off of her daughter, but both these
slight women were no hindrance to a man the size of Malatji.
The ladies weighed a mere 50 kg and 55 kg respectively, their
combined weight no doubt being less than the weight of Malatji
alone.
Malatji is of sturdy built and clearly a strong man.
27.
After dragging her, Malatji straddled
the first plaintiff on the ground and placed both his hands around
her neck suffocating her.
The first plaintiff was now laying in
the paved parking area outside her flat, on her back, with Malatji
sitting on her with his
legs straddling her. The first
plaintiff screamed as if her life depended on it. On all
accounts, her life indeed did
depend on it. She repeatedly lost
consciousness. She testified that she believed that she was
going to be raped and
murdered. During this brutal attack by
his colleague, the third defendant (“Maluleke”), stood by
Malatji ostensibly
as his bodyguard. Maluleka prevented the
second plaintiff and physically held her away when she tried to get
Malatji off
of her daughter. Maluleke violently grabbed the
second plaintiff and threw her to the ground repeatedly. The
commotion was
clearly audible and visible and the occupants of the
complex were looking out of their windows and standing outside their
doors,
prompted by the screams of the first and second plaintiff.
There was approximately 14 people bearing witness to these assaults.
28.
A video recording of the ordeal was made
by a neighbour who resides in the complex and it clearly shows how
Malatji straddled the
first plaintiff. It shows his left leg
bent and pushed down on the first plaintiff’s torso. It
also clearly shows
both of his hands around her neck, aggressively
strangling and shaking her. The video further shows the second
plaintiff
approaching, screaming to Malatji to stop it, and shows
Maluleke grabbing the second plaintiff and violently throwing her to
the
ground. Both of these officers were in full police
uniform. The video was handed in as evidence and it was
revolting
to see two strong men in Police uniform brutally attacking
these two vulnerable women.
29.
Her mother shouted at the first
plaintiff that she should scratch Malatji with her nails to defend
herself. The first plaintiff
used her nails and scratched
Malatji’s face. The first plaintiff’s nails broke
Malatji’s skin and Malatji’s
blood started dripping on
the first plaintiff. Despite being scratched, Malatji kept on
strangling the first plaintiff.
30.
In addition to the video, photographs
that were handed in as exhibits, clearly show the brutal bruises
around the first plaintiff’s
neck, her arms and her wrists.
There appears to be absolutely no reason for two uniformed police
officials to attack two
woman with so much force. When Maluleke
saw that one of the neighbours are taking a video with his cellular
phone, the video
shows where Maluleke’s hand moves in the
direction of his fire-arm in his holster, whilst Maluleke walks
towards the videographer.
The video then stops abruptly.
31.
This video was taken by a neighbour who
did not testify at the trial. The video was identified by the
first, second, third
and fourth plaintiffs as an accurate portrayal
of the events. I allowed the video evidence on the grounds of
relevance.
32.
The third and fourth plaintiffs, a
married couple and neighbours of the first and second plaintiffs,
approached Malatji and Makubela
during the assaults in an effort to
assist the first and second plaintiffs. The fourth plaintiff
testified that he has never
seen any man assault any woman the manner
in which Malatji and Makubela assaulted the first and second
plaintiffs. He testified
that: “
Had
they not been police officials, I surely would have raised my hand
against them to protect the women.”
33.
It appears that Malatji and Makubela
then called in assistance, and several more police officers arrived
at the scene in vehicles
sounding with alarms. The first,
second, third and fourth plaintiffs were all handcuffed. The
steel handcuffs on each
of them were tightened to cause maximum pain
and discomfort. All the plaintiffs asked whether the handcuffs
might be slightly
loosened, as it felt to them that their blood flow
to their hands are being cut off. Their requests were refused.
34.
The first plaintiff was placed in a
police van separate from the other three plaintiffs. The
first plaintiff begged
the police officials to allow her to dress, or
at least to get her clothes, as she was still in her pyjamas.
At that stage,
her pyjamas were in tatters as it was torn in the
struggle with Malatji. The police officers refused. The
first plaintiff
begged the police officers to allow her to get a
scarf to at least cover her head. Being a devout Muslim, it is
utmost impure
behaviour to be seen in public without being properly
clothed. Aside from the robe, it is unacceptable for Muslim
woman to
appear in public without your head being covered in public,
or to be barefoot in public. Both the first plaintiff and the
second plaintiff were without their head dress and without shoes and
the members of the Police refused that they obtain any clothing
to
cover themselves. This is a serious infringement of the first
and second plaintiff’s religious principles.
35.
An unknown police man targeted the
police van in which the second, third and fourth plaintiffs were
placed and through the window
a type of gas was released. It
appears that it might have been teargas. There was no
ventilation in the van.
The second plaintiff fainted more than
once in the back of the police van. The third plaintiff removed
her scarf and placed
it in front of the second plaintiff’s
face, to act as a form of mask, as she was scared that the second
plaintiff might not
be breathing and she was scared that the second
plaintiff was going to die as the second plaintiff suffers from
diabetes.
This fear was so real that the third plaintiff
recited the death prayer over the second defendant’s
unconscious body in the
back of the police van.
36.
The four plaintiffs were taken to the
Booysens Police Station. The first plaintiff was kept separate
from the other three.
The first plaintiff was arrested for
assaulting a police officer with the intent to do grievous bodily
harm. Malatji was
the complainant. The assault was the
scratching of Malaji’s face with the first plaintiff’s
nails, whilst he straddled
her. At a later stage, the second
plaintiff was also charged for assaulting a police officer with the
intent to do grievous
bodily harm.
37.
The third and fourth defendants were
charged with interfering with the execution of justice and theft of a
police vehicle’s
keys.
These criminal trials, as well as
those of the first and second plaintiffs, proceeded for the better
part of a year and disrupted
all the plaintiffs’ lives.
All the plaintiffs were found not guilty on all the charges.
38.
At the police station the second, third
and fourth defendants were instructed to stand in the hallway of the
station. They
were still in steel handcuffs. They were
not placed in police cells. When the second plaintiff sat on a
chair, she
was scolded and told that she does not deserve to sit on a
chair as she is part of the Talliban. After a long time
standing,
they were forced to sit on the tiled floor. Their
evidence was that the police members would walk past them and curse
at
them, called them derogative names and would make fun of them.
They would also be taunted by police members asking questions
such as
“so what are you going to do now?” and “you do not
belong in our country” and they were called
names such as
“Talliban”. They were being humiliated to the
extreme.
39.
The second plaintiff testified that when
she saw her daughter (the first plaintiff) at the police station she
was utterly shocked.
The first plaintiff’s pyjamas were
torn and tattered to such an extent that her breasts and buttocks as
well as most intimate
parts were not covered and visible. The
first plaintiff could not even cover herself as her hands were cuffed
together.
She was crying inconsolably and could barely stand.
Around her neck and arms thick bruises started to show.
40.
None of the plaintiffs were detained
overnight and were released on bail during the evening of Sunday 18
November 2012.
41.
The first and second plaintiff had
severe difficulties recalling these events during evidence. It
is clear that the incident
had an extremely scarring emotional impact
on both.
42.
For any woman it will be the most
degrading and humiliating experience and exposure: being dragged from
your house, your pyjamas
torn to such an extent that you are
indecently exposed and that you have no privacy, being helpless as
you are handcuffed.
Over and above the extreme humiliation that
any person would feel when violated to such an extent, the first and
second plaintiff
as devout Muslim woman had the added encroachment to
one of the core principles in her religion and belief, being dressed
modest
and fully covered.
43.
This ordeal left the first and second
plaintiffs with severe emotional scars. To this day, both of
them are suffering from
depression and receive therapy. The
first plaintiff uses Biral, a natural calming agent and the second
plaintiff uses prescription
medication to keep her depression in
check. Both the first and second plaintiff had to receive and
(on an
ad hoc
basis)
are still receiving psychological assistance.
44.
The second plaintiff has lost all her
trust in the police, to such an extent that when she had to report a
burglary, she refused
to go to the police station as she was afraid
of what they might do to her. She rather suffered the loss and
not claim from
insurance, as opposed to going to the police station
and report the burglary. The second plaintiff has also caused a
vehicle
collision, as she “froze” in traffic when she
heard police sirens. It is clear that the incident had a severe
emotional impact (in addition to the physical impact) on the first
and second plaintiffs.
45.
No expert reports served before me in
relation to the mental health of the first and second plaintiffs.
I accept their evidence
that they suffer from depression and use
medication and therapy to deal with the events of 18 November 2012.
46.
The onus rests on the plaintiffs to
prove that they were assaulted, unlawfully arrested and maliciously
prosecuted. Irrespective
of whether the matter was defended or
not, the plaintiffs each has to prove his / her individual claims on
a balance of probabilities.
47.
The evidence before me support the claim
that the four plaintiffs were unlawfully arrested and maliciously
prosecuted. The
evidence also support the claim that the first
and second plaintiffs were assaulted. The video clearly shows
how the first
plaintiff attempted to protect herself by scratching
the second defendants face, and her mother attempted to protect her
child
by trying to drag Malatji off of the body of the first
plaintiff. The video also clearly shows how Maluleke pushes and
drags
the second plaintiff. The photographs, as well as the J88
report completed by the medical practitioner in the medico-legal
examination, were all in support of the oral evidence of the assault
on the two women.
48.
The first and second plaintiff attempted
to open charges of assault against the second and third defendant,
but to no avail.
The first and second plaintiffs also laid a
complaint by the Independent Complaints Directorate (ICD) of the
SAPS, but similarly
no response was received.
49.
I accordingly find that the first,
second, third and fourth plaintiffs were unlawfully assaulted,
arrested and maliciously prosecuted.
Quantum
Special
damages: legal fees
50.
All four plaintiffs claim special
damages of the legal fees they had to incur for legal representation
in the charges brought against
them where Malatji and Maluleke were
the complainants:
50.1.
Against the first plaintiff the charge of assault with the intent to
do grievous bodily harm; and
50.2.
Against the second to fourth plaintiffs the charges of interference
with justice and theft of a state owned vehicle key.
51.
The amount claimed for each plaintiff
was an amount of R100,000. The tax invoice presented on the
letterhead of the attorney
of record did not reflect the amounts
which were already paid and which amounts remained due. The
invoices were also not
accompanied by receipts indicating the amounts
received.
52.
The plaintiffs did not provide any
details of their payments but only testified broadly that they have a
down-payment arrangement
and some monies have already been paid.
All the payments were made in cash.
53.
In argument, the court raised the issue
of the best-evidence rule in circumstances where the creditor is an
attorney regulated by
strict regulations in regard to bookkeeping of
trust accounts. This claim for special damages were
subsequently withdrawn.
General
damages
54.
The principle in determining the amount
of the award is that the award should be fair to both sides -
it must give just compensation
to the plaintiff, but not “
not
pour out largesse from the horn of plenty at the defendant’s
expense”
which was pointed out
in
Pitt v Economic Insurance Company
Limited
1975 (3) SA 284
(N) at
287. The awards made in previous cases are a useful guide
to what other courts have considered to be appropriate,
but the
awards itself have no higher value than that of a guideline.
55.
The
very nature of general damages makes it difficult to exactly assess
an appropriate amount. Ultimately the amount awarded is
the amount
which a court may deem reasonable under the particular circumstances
of a specific case.
[3]
56.
Even though every case is to be
determined on its own merits, an exercise should be undertaken by the
court when determining the
amount of damages in which the court
should compare previous awards on comparable cases, as stated by
Potgieter JA in
Protea Assurance Co
Ltd v Lamb
1971 (1) SA 530
(A) at
535H-536B:
'It
should be emphasised . . . that this process of comparison does not
take the form of a meticulous examination of awards made
in other
cases in order to fix the amount of compensation; nor should the
process be allowed so to dominate the enquiry as to become
a fetter
upon the court's general discretion in such matters. Comparable
cases, when available, should rather be used to afford
some guidance,
in a general way, towards assisting the court in arriving at an award
which is not substantially out of general
accord with previous awards
in broadly similar cases, regard being had to all the factors which
are considered to be relevant in
the assessment of general damages.
At the same time it may be permissible, in an appropriate case, to
test any assessment arrived
at upon this basis by reference to the
general pattern of previous awards in cases where the injuries and
their sequelae may
have been either more serious or less
than those in the case under consideration.”
57.
In
Minister
of Safety and Security v Seymour
2006
(6) SA 320
(SCA) a 63 year old businessman were unlawfully arrested
and detained for five days. The award granted in the High Court
was R500,000 which amount was reduced on appeal to R90,000. The
current monetary value of the award is approximately R220,000.
In the matter before court, none of the plaintiffs were detained
overnight or any prolonged period in the following days.
However, the humiliation and infringement on religious principles as
suffered by the first and second plaintiffs during the assault,
arrest and detainment would, in my view, be justifiably compensated
in an amount between R200,000 and R300,000.
58.
In
Manase
v Minister of Safety and Security and Another
2003
(1) SA 567
(Ck) the plaintiff was arrested by police for murder and
was detained for total of 49 days. The criminal charges were
subsequently
withdrawn in the High Court. The court found that
the arrest, detention and prosecution was wrongful, unlawful and
malicious
and awarded general damages in the amount of R100,000
(R90,000 of which being for malicious arrest and detention, and
R10,000 for
malicious prosecution). The current monetary value
of the award would be approximately R250,000. In relation to
the
determination of the quantum, White J held:
“
[27]
The Court takes a serious view of the malicious arrest and detention
of the plaintiff. He was at the time 65 years old, married,
a
grandfather and a successful businessman, residing permanently in
Keiskammahoek. Not only had he never been in any trouble with
the law
before, but he must also have been respected in the small village
where he lived and conducted his business. The serenity
of his life
was obviously shattered by the arrest and, as he testified, the
detention proved to be a traumatic experience. He was
detained for a
lengthy period - 49 days - during which time he had to share a cell
with criminals. Due to his arrest and detention
he has lost the
esteem not only of the people in Keiskammahoek, but also of his
business associates.”
59.
In comparing the Manasa matter and the
matter currently before court, similarities are the humiliation and
defiling of the first
and second plaintiffs’ religion in
relation to a respected and successful businessman arrested and
detained for a prolonged
period. Both Manase and the first and
second defendant experienced trauma due to the incident and, to
borrow the above phrase
eloquently put by my brother White J: “
The
serenity of (his-sic) life was obviously shattered.”
60.
The court has traced the following two
undermentioned cases in The Quantum of Damages in Bodily and Fatal
Cases of Robert Koch Jutastat
e-publications, which is of assistance
to it in determination of a fair and just
quantum
in the matter before court.
61.
In the matter of
Minister
of Safety and Security v Raymond Augustine and 3 Others
2017 (7K3) QOD 13 (SCA) the members of the police executed a raid in
terms of which they penetrated the house of the plaintiff
and his
family members at night. The family members were forcefully
held to the ground and no answers were given to them.
It later
transpired that the wrong house was raided. The family members
of Augustine suffered severe post traumatic stress
disorder and
anxiety and the first defendant had a heart attack of which he
contributes the stress to the incident. In the
High Court the
plaintiffs were awarded R25,000 each for general damages. This
was overturned in the Supreme Court of Appeal
for R200,000 and
R250,000 individually to each of the four plaintiffs, depending on
their unique circumstances. The amount
of R200,000 would equal
the currency of approximately R250,000 in today’s value.
The similarity with the matter before
court is that the first and
second plaintiff were aggressively unrooted from their residence.
62.
The tragic circumstances in the matter
of
Maart v Minister of Police
2013 (6K3) QOD 24 (ECP) also provides guidance on a suitable
quantum
.
Ms Maart called the assistance of the SAPS to detain her son, who was
under the influence of alcohol. In the process
of detaining
him, her son drew two knives and threatened the police officials.
The police officials shot the young man in
the head, in front of his
mother, Ms Maart. As a result of observing her son's death, at
the hands of the policemen summoned
by her, the plaintiff suffered
severe trauma which forms the basis of her claim for damages.
The court awarded a sum of R200,000
damages to the plaintiff.
The currency would amount to R275,000 in today’s value. A
similarity in the matter
is that a mother witnessed violent actions
of policemen against her child.
63.
In the matter of
Minister
of Safety and Security v Tyulu
2009
(5) SA 85
(SCA) the arrestee was a magistrate arrested for being
intoxicated in public. The arrest was executed by people with
whom
he normally worked, he was manhandled and dragged into a police
vehicle. The arrestee was a man of considerable standing in the
community and must have been caused serious embarrassment,
humiliation and shock, with concomitant mental anguish and stress (as
set out in the judgment paragraph [25] at 93B - C.) Damages of
R15,000 was awarded for unlawful arrest and detention. The
current monetary value of the amount would be approximately R30,000.
This is comparable to the damages suffered by the third
and fourth
plaintiffs.
64.
In argument, Mr Bodhania subdivided the
various headings of general damages. Counsel conceded that it
is not an advisable
approach for the court to consider separate
amounts for various elements of the damage and calculate damages as a
mathematical
process. The acceptable manner in which to
determine the amount that would be just and fair, was to be guided by
the facts
of each case individually with all the elements viewed
holistic.
65.
Mr Bodhania argued on behalf of the
plaintiffs that compensation in the amount of R1 million to R1.2
million to the first plaintiff
would be a fair and reasonable
amount. On his argument the following factors justify such an
amount:
65.1.
The trauma of being physically exposed to be forced in public in her
night-wear and without a head-scarf, robe or shoes in direct
conflict
with her religious principles, as well as the humiliation to be
physically exposed of her most intimate and private body
parts;
65.2.
The humiliation and depravation of dignity to be arrested,
transported in a police van, ordered to stand in the Booysens Police
Station corridor in her torn night-wear;
65.3.
The trauma of being unlawfully arrested and put through a malicious
prosecution for a whole year, where she had to testify about
the
assault on her, but was accused of assaulting Malatji; and
65.4.
The general damages of being ridiculed, harassed and defamed at the
Booysens Police Station.
66.
It was argued on behalf of the second
plaintiff that compensation in the total amount of between R750,000
to R900,000 would be a
reasonable amount with the following main
factors taken into account:
66.1.
The humiliation and depravation of dignity to be arrested,
transported in a police van, ordered to stand in the Booysens Police
Station corridor in her night-wear with gown;
66.2.
The second plaintiff is left with severe anxiety due to the
unreasonableness and nonsensical nature of the events, and she has
and no trust left in the South African Police Service;
66.3.
The second plaintiff has had to see her daughter being attacked,
humiliated and exposed and she could do nothing to protect her
daughter; and
66.4.
The second plaintiff lost her employment due to the repercussions of
the incident. She was left without an income for 7 months,
and
cannot perform employment functions the way she had prior to the
incident.
67.
It was argued on behalf of the third and
fourth plaintiffs that compensation in the amount of R600,000 to
R800,000 would be reasonable
with the main factors as follows:
67.1.
The third and fourth plaintiffs were subjected to some form of
teargas in the back of the police van;
67.2.
The third and fourth plaintiffs had their hands cuffed very tight;
67.3.
The third and fourth plaintiffs went to assist the first and second
plaintiff against the brutality of the second and third defendants,
but ended up being arrested and detained; and
67.4.
The third and fourth plaintiffs were prosecuted for interference with
justice and theft of a state owned vehicle key.
68.
For the reasons set out above, I deem
the amounts submitted by Mr Bodhania to be very opportunistic.
69.
After considering all the evidence
before me, the applicable case law and legal principles, I come to
the conclusion that it would
be just and fair under the circumstances
to award general damages to the first, second, third and fourth
plaintiffs for the actions
taken by the second and third defendants
on 18 November 2012 as follows:
69.1.
an amount of R300,000 compensation to the first plaintiff for general
damages occurred during the unlawful assault, arrest and
detention as
well as the malicious prosecution;
69.2.
an amount of R250,000 compensation to the second plaintiff for
general damages occurred during the unlawful assault, arrest and
detention as well as the malicious prosecution;
69.3.
an amount of R20,000 compensation to the third plaintiff for general
damages occurred during the unlawful assault, arrest and detention;
69.4.
an amount of R20,000 compensation to the fourth plaintiff for general
damages occurred during the unlawful assault, arrest and
detention.
70.
The plaintiffs are requested to serve a
copy of this judgment together with the video-evidence contained on
the flash-drive / memory
stick on the Independent Complaints
Directorate.
71.
The
plaintiffs are also requested to send a copy of this judgment to the
National and Provincial Commissioners of the South African
Police
Services.
I
consequently make the following order:
1.
The first and third defendants
(collectively and/or individually) are ordered to pay to the first
defendant an amount of R300,000;
2.
The first and third defendants
(collectively and/or individually) are ordered to pay to the second
defendant an amount of R250,000;
3.
The first and third defendants
(collective and/or individually) are ordered to pay to the third
defendant an amount of R20,000;
4.
The first and third defendants
(collective and/or individually) are ordered to pay to the fourth
defendant an amount of R20,000;
5.
The plaintiffs’ legal
representatives are requested to serve a copy of this judgment
together with the flash-drive / memory
stick on the Independent
Complaints Directorate;
6.
The
plaintiffs’ legal representatives are also requested to serve a
copy of this judgment to the National and Provincial Commissioners
of
the South African Police Services; and
7.
The first and third defendants are to
pay the costs of the plaintiffs on a scale as between party and
party.
_________________________________
FMM
SNYMAN, AJ
ACTING
JUDGE OF THE HIGH COURT
DATE
OF HEARING: 20 FEBRUARY 2020
DATE
OF JUDGMENT: 13 MAY 2020
JUDGMENT
DELIVERED ELECTRONICALLY DUE TO COVID 19 RESTRICTIONS
Appearance
for the plaintiff: Adv Bodhania
Instructed
by: Yousha Tayob Attorney
Tel:
011 838 3342
Fax:
011 838 4744
Ref:
MLA/0005/YT
No
appearance for the defendants
[1]
Rule
4 of the Uniform Rules of Court reads as follows: “
4
Service
(1)(a) Service
of any process of the court directed to the sheriff and subject to
the provisions of paragraph (aA) any
document initiating
application proceedings shall be effected by the sheriff in one or
other of the following manners:
(i)…
(ii) by
leaving a copy thereof at the place of residence or business of the
said person, guardian, tutor, curator or
the like with the person
apparently in charge of the premises at the time of delivery, being
a person apparently not less than
sixteen years of age. For the
purposes of this paragraph when a building, other than an hotel,
boarding-house, hostel or similar
residential building, is occupied
by more than one person or family, ‘residence’ or ‘place
of business’
means that portion of the building occupied by
the person upon whom service is to be effected…”
[2]
Rule
31 reads as follows:
“
31
Judgment on confession and by default and rescission of judgments
(1)…
(2) (a) Whenever
in an action the claim or, if there is more than one claim, any of
the claims is not for a debt or
liquidated demand and a
defendant
is in default of delivery of notice of intention to defend
or of
a plea, the plaintiff may set the action down as provided in subrule
(4) for default judgment and the court may, after
hearing evidence,
grant judgment against the defendant or make such order as it deems
fit.
…
(4)
The proceedings referred to in subrules (2) and (3) shall be set
down for hearing upon not less than five days’ notice
to the
party in default:
Provided that no notice of set down shall be
given to any party in default of delivery of notice of intention to
defend.
”
(own
emphasis)
[3]
See:
Sandler v Wholesale Coal Suppliers Ltd
1941
AD 194
at
199;
Klopper:
The Law of Third Party Compensation, 2
nd
ed, p
152-158