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[2021] ZAGPJHC 87
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Manyoni v Minister of Police and Another (41499/2018) [2021] ZAGPJHC 87 (23 June 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 41499/2018
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In the matter between:
ZAKHELE MANYONI
Plaintiff
and
THE MINISTER OF POLICE
First Defendant
THE NATIONAL DIRECTOR
OF
PUBLIC
PROSECUTIONS
Second Defendant
Damages
claim for unlawful arrest and prolonged detention of more than eight
months. The arrest was irrational and thus unlawful.
Double
compensation and date for determination of damages and date from
which interest would be payable in issue, as well as quantum.
JUDGMENT
DE VILLIERS, AJ:
[1]
This matter is the story of a man who,
although innocent of a crime, spent about eight-and-a-half months in
prison. The respondents
(I refer to them as “
the
state
” herein) aver that his
arrest and detention was lawful and that it is not liable to
compensate him for his arrest and detention.
The plaintiff seeks
damages under the
lex aquila
and
the
actio iniuriarum
,
being for damages caused by wrongful, culpable acts of the state. He
seeks compensation for a loss of income and general damages.
Lawful arrest and
detention?
[2]
The
first and main question to determine liability of the state is the
question of whether the arrest and detention of the plaintiff
were
lawful. The state bears the onus to show this.
[1]
[3]
It was common cause that the plaintiff was
arrested and charged with a Schedule 1 offence as contemplated in
section 40(1)(b)
of the
Criminal Procedure Act 51 of 1977
:
“
Arrest
by peace officer without warrant
(1)
A peace officer may without warrant arrest any person-
(a)
…
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1, other
than the offence of escaping from lawful
custody
”
.
[4]
If the section was properly complied with,
the arrest would have been lawful. The investigating officer arrested
the plaintiff knowing
the facts set out next - facts that appear (a)
from a statement by a complainant; (b) the investigating officer’s
entries
into the docket; and (c) in one instance, a common cause
fact. On these facts the investigating officer had to form the
opinion
that he reasonably suspected the plaintiff of having
committed an offence referred to in Schedule 1 to the
Criminal
Procedure Act:
>
[4.1]
A woman woke up during the night on 6 May
2017 and found that a man had broken into her house, he was standing
over her, and he
started to undress. The intruder’s face was
half-covered;
[4.2]
They started to wrestle and the intruder
assaulted the woman in this struggle. The intruder used his hand to
close her mouth and
later, as the complainant described it to the
police -
“…
put
his fingers in my mouth as he wants to pull out my tongue. I then
bite his fingers. When he took them out of my mouth …”;
[4.3]
The complainant managed to scream, and the
intruder fled. As he ran away, she saw that he wore navy, morning
slippers;
[4.4]
The police found a fingerprint on the
window where the perpetrator gained entry and blood in the room;
[4.5]
On 17 May 2017 the complainant advised the
investigating officer that she would not be able to identify the
intruder should she
see him again;
[4.6]
On 19 May 2017 the complainant advised the
investigating officer that someone in the community where she lived,
told her that the
plaintiff had a bandage on his left hand; and
[4.7]
The plaintiff lived in the same street that
the complainant lived in, and was in fact known to her, as his sister
was her friend.
[5]
The state argued that by conveying to the
police that the complainant had heard that the plaintiff had a
bandage on his hand, the
complainant had pointed him out as the
perpetrator of the crime. I respectfully disagree. She conveyed
hearsay evidence of an injury
to the plaintiff. No evidence was led
that she, at any stage, changed her version to one that she could or
did identify the plaintiff
as the intruder. In fact, the complainant
was not called to testify, despite having been at a court to testify
on a previous occasion.
Her absence was not explained.
[6]
The state argued that the complainant bit
the intruder on his fingers or his hands. I respectfully disagree.
The statement by the
complainant refers to her biting the assailant’s
fingers that were in her mouth. No evidence was led that she had
bitten
a part of the hand of her assailant other than the fingers.
[7]
The
evidence at this point diverges. The investigating officer’s
evidence was that he and the complainant arrested the plaintiff
at
the plaintiff’s house in the early evening of 19 May 2017
(almost two weeks after the incident). The state did not argue
that I
must disbelieve its own witness. The investigating officer testified
that the complainant had a bandage on his hand, but
that he did not
look at the plaintiff’s hand. According to him, the plaintiff
advised him that he had injured his hand in
assisting others with
home renovation work. The investigating officer did not make
inquiries about this version. I point out that
no evidence was led
that the investigating officer formed an opinion that the injury to
the plaintiff’s hand was consistent
with the complainant’s
evidence that she bit the fingers of her assailant.
[8]
If
the investigating officer is to be disbelieved, and the evidence of
the plaintiff is to be accepted in full, the matter becomes
worse for
the state. On the plaintiff’s version, the police came to his
house when he worked night shift. This was reported
to him. As a
result, he reported to the police station early the next day. He was
arrested at about 11H00 in the presence of the
complainant at the
police station. The objective evidence of the cell register bears out
the time of his arrest. The plaintiff
testified that he showed his
hand to the investigating officer and to the complainant. On his
version, the complainant stated that
his injuries were not consistent
with an injury caused by a bite. He later, before his first court
appearance
,
told
the investigating officer that he injured his hand on a razor wire
fence at his place of work when he struggled with a guard
dog.
[9]
The state argued that the only difference
in the versions of the investigating officer and that of the
plaintiff, was about the
time (and place) of arrest. I respectfully
disagree. The evidence on having looked at the hand, and the evidence
on the explanation
given, differed too.
[10]
I do not intend to resolve the conflicts
between the two versions. I will assume for the purposes of this
judgment that one could
accept the investigating officer’s
version, being the version best for the state. Accordingly, on the
evidence of the investigating
officer, the plaintiff was arrested for
(a) having an injury to his hand, (b) being a man, and (c) living in
the same street as
the complainant, who had reported a crime
involving a man whose fingers she had bitten. This arrest occurred
despite the plaintiff
giving an explanation for his injury, without
the investigating officer looking at the injury, or making enquiries
about it. No
evidence was led that the plaintiff was found in the
possession of navy, morning slippers, or if they were searched for.
[11]
The issue before me was if the
investigating officer reasonably suspected the plaintiff of the
crimes he was charged with and thus
lawfully arrested him in terms of
section 40(1)(b)
of the
Criminal Procedure Act. It
is a test of
rationality. The test is more clearly formulated as (a) if the
investigating officer had a suspicion, and (b) if so,
if his
suspicion rested on reasonable grounds. See
Duncan
v Minister of Law and Order
1986 (2) SA
805
(A) at 818H, a decision by the Supreme Court of Appeal (“the
SCA”).
[12]
In another judgment by the SCA,
Minister
of Safety and Security v Sekhoto and Another
2011 (5) SA 367
(SCA), regarding the rationality of an arrest under
section 40(1)(b)
of the
Criminal Procedure Act, it
was held in paras
38 39:
“
[38]
… it remains a general requirement that any discretion must be
exercised in good faith, rationally and not arbitrarily.
[2]
[39]
This would mean that peace officers are entitled to exercise their
discretion as they see fit, provided that they stay within
the bounds
of rationality. The standard is not breached because an officer
exercises the discretion in a manner other than that
deemed optimal
by the court. A number of choices may be open to him, all of which
may fall within the range of rationality. The
standard is not
perfection or even the optimum, judged from the vantage of hindsight
— so long as the discretion is exercised
within this range, the
standard is not breached.
[3]
”
[13]
Determining the boundary between
rationality and arbitrariness is not always easy. The parties
referred me to
Mabona and Another v
Minister of Law and Order and Others
1988 (2) SA 654
(SE) as a comparable case. In that case the suspect
was arrested, without a warrant, upon information given by an
anonymous informer
in connection with a robbery of R70 000.00. The
police searched the suspect’s resident, but was unable to find
any large
sum of money. The court held that the arrest was unlawful,
after stating (the bounds of) the rationality test at 658E-H
(underlining
added):
“…
The
test of whether a suspicion is reasonably entertained within the
meaning of s 40(1)(b) is objective (S v Nel and Another
1980 (4) SA
28
(E) at 33H).
Would a reasonable man
in the second defendant's position and possessed of the same
information have considered that there were
good and sufficient
grounds for suspecting that the plaintiffs were guilty of conspiracy
to commit robbery or possession of stolen
property knowing it to have
been stolen?
It seems to me that in
evaluating his information a reasonable man would bear in mind that
the section authorises drastic police
action
. It authorises an arrest on the
strength of a suspicion and without the need to swear out a warrant,
ie something which otherwise
would be
an
invasion of private rights and personal liberty
.
The reasonable man will therefore
analyse
and assess the quality of the information at his disposal critically
,
and he
will not accept it lightly or
without checking it where it can be checked
.
It is only after an examination of this kind that he will allow
himself to entertain a suspicion which will justify an arrest.
This
is not to say that the information at his disposal must be of
sufficiently high quality and cogency to engender in him a conviction
that the suspect is in fact guilty.
The
section requires suspicion but not certainty. However, the suspicion
must be based upon solid grounds. Otherwise, it will be
flighty or
arbitrary, and not a reasonable suspicion
.”
[14]
Restating these findings, would a
reasonable man in the investigating officer’s position,
possessed of the same information,
have considered that there were
good and sufficient grounds for suspecting that the plaintiff was
guilty of housebreaking and attempted
rape? I restate the known
facts: The plaintiff (a) had an injury to his hand, (b) was a man,
and (c) lived in the same street as
the complainant, who had reported
a crime involving a man whose fingers she had bitten.
[15]
It seems to me that such an arrest was
arbitrary. By far the most reasonable conclusion of the facts is that
the plaintiff was simply
a man with an injured hand. I can see no
rational basis to conclude that the three known facts point to him
being reasonably suspected
of the crimes committed by the unknown
intruder. My finding is strengthened by what appears to be failures
by the investigating
officer to consider (and possibly follow up) the
explanation for the injuries to the appellant’s hand, to ask to
look at
the injuries, to search for navy morning slippers, or to
consider that the plaintiff seemingly was not a stranger to the
complainant
(who still did not identify him).
[16]
My finding of an arbitrary arrest seems to
me to accord with the reasoning in a judgment by the SCA,
Minister
of Safety and Security and Another v Swart
[2012] ZASCA 16.
The SCA dealt with a case where a person was
arrested without a warrant on a suspicion of driving a motor vehicle
on a public road
whilst under the influence of intoxicating liquor.
The driver of the vehicle had driven off the road on a mountain pass,
seemingly
when miscalculating a dangerous curve in the road. The
police could smell a mild smell of alcohol when they spoke to the
person
who drove the vehicle (or whom they suspected to have been the
driver). The court formulated an objective test to consider the
rationality of the decision by the investigating officer to arrest
the driver as follows in para 20 and 23:
“
[20]
It is furthermore trite that the reasonableness of the suspicion of
any arresting officer acting under s 40(1)(b) must be approached
objectively. The question is whether any reasonable person,
confronted with the same set of facts, would form a suspicion that
a
person has committed a Schedule 1 offence.
M
v Minister of Safety & Security
2009 (2) SACR 291
(GSJ).
…
[23] To my mind to
conclude that the respondent was under the influence of alcohol based
on the mere fact that he smelt lightly
of alcohol, is more of a
quantum leap in logic. It follows in my view that the second
appellant’s suspicion was not based
on reasonable grounds and
therefore that the respondent’s arrest and detention were
unlawful.”
[17]
I am satisfied that the state failed to
discharge the onus to show that the plaintiff’s arrest was
lawful on the limited facts
known to the investigating officer. It
did not establish that it was rational to suspect the plaintiff of
having committed the
offences. The arrest and detention being
unlawful, the remaining issues are causation and damages.
Factual and legal
causation
[18]
But for the arrest, the detention would not
have happened. Factual causation thus was not in issue on the “
but
for
” application of the test. The
plaintiff was brought before court on 22 May 2017 and the matter was
remanded for a bail hearing
eventually on 13 June 2017. By that stage
the plaintiff was represented by a public defender. Bail was refused.
He was released
from detention on 24 January 2018 when the
prosecution’s request for a postponement was refused, about
eight-and-a-half months
after his arrest (about 251 days).
[19]
The state argued that the next matter for
consideration was the impact of the decisions by the learned
magistrate to keep the plaintiff
in detention pending the bail
hearing, and after the bail hearing pending the trial. The state
argued that these were material
events, and that malicious
prosecution must be shown to have existed for the plaintiff to
succeed in his damages claim for the
period after he was brought to
court and detained in a process controlled by a magistrate. I
respectfully disagree. I first address
the material facts upon which
my disagreement is based.
[20]
In opposing the plaintiff’s bail
application, the investigating officer made a statement that was
untrue. He stated under
oath that the plaintiff “…
has
an outstanding case where he escaped from custody as per Krugersdorp
CAS 845-2-1998
”. He made this
statement only relying on a report drawn from the police’s
records on its Crime Administration System
and without investigating
the correctness of the report. Upon reading the report, it shows that
the matter in fact was closed.
The report therefore did not reflect
that there was an outstanding case as stated by the investigating
officer. The presiding magistrate
relied on this false statement and
said:
“
As
far as the bail application is concerned, the state's case against
you at the moment is not exceptionally strong; that is true.
Should
the DNA come back and you be linked, then it would be just about
watertight. But at this stage that remains speculation;
we do not
know what will happen.
But
it bothers me that you have an outstanding escaping matter against
you. On top of it all you are still subject to parole for
some of the
other matters that you had been sentenced to direct imprisonment
.”
[21]
The public defender immediately addressed
one error in the reasoning by the learned magistrate. He stated that
his client was no
longer on parole. The learned magistrate then
stated:
“
But
if you have already escaped and you know they are looking for you
now, the likelihood of escaping again is now just about inevitable,
irresistible some may say. So in the circumstances I refuse bail
.”
[22]
According
to the record, the false statement about a pending escape matter
sealed the plaintiff’s fate at the bail hearing
and he remained
in custody pending completion of the investigation. Having been
arrested on irrational grounds, he now was detained
on a false
version that he had a pending case against him for having escaped.
[23]
In
the end, the fingerprint analysis only became available on 15 August
2017 (it pointed to a person other than the accused). It
is not clear
to me if this fact was brought immediately to the court’s
attention in considering the continued detention of
the plaintiff. As
reflected above, the plaintiff was released from detention on 24
January 2018 when the prosecution’s request
for a postponement
was refused. The DNA analysis only became available after the release
of the plaintiff. It also exonerated the
plaintiff.
[24]
I
next address the legal basis why I disagree that malicious
prosecution must be shown to have existed for the plaintiff to
succeed
in his damages claim for the period after he was brought to
court and appeared before a magistrate.
[25]
I
do not have to resolve the onus regarding pleading and proving legal
causation
[4]
in this judgment.
In the end, foreseeability was not in issue before me, and the case
was conducted by the plaintiff on the impact
of the false averment by
the investigating officer in his affidavit submitted at the bail
hearing (with an eye to rely in argument
on the leading case
addressed next).
[26]
The
leading case is
De
Klerk v Minister of Police
2020 (1) SACR 1
(CC). In a court consisting of ten judges, Thereon J
(four judges concurring)
[5]
gave
the majority judgment in the Constitutional Court (“the
ConCourt”), and Cameron J a concurring one. The ConCourt
dealt
with a case where the plaintiff was kept in custody for eight days.
He was taken to court on the first day of his arrest,
but foreseeably
so, the case was simply remanded for a bail hearing. The case was
withdrawn and the plaintiff released from detention.
The police
argued that the plaintiff’s first court appearance and the
court remand order, collectively constituted
a
novus actus interveniens
- breaking the chain of causation that started with the unlawful
arrest. It seems that this was the intended pleaded case before
me as
well, and the basis for the argument that malicious prosecution must
be proven to succeed with a claim after the first remand
by a
magistrate.
[27]
De Klerk
decided
the matter based on causation, an approach in which any lawful
detention after the unlawful arrest is but a factor to consider
in
determining legal causation.
De Klerk
held that the facts of a matter may mean that the wrongdoer, for
reasons of public policy, is not held liable for harm that is
too
remote from the unlawful arrest. However, in our law there is no
blanket principle that the police’s liability terminates
on the
first appearance of an unlawfully arrested person. Even if the
continued detention of the unlawfully arrested person is
lawful after
a court appearance, the police’s liability may continue. It is
but a factor to consider from amongst all factors.
The ConCourt held
in para 63 (underlining added):
“
In
cases like this, the liability of the police for detention post-court
appearance should be determined on an application of the
principles
of legal causation, having regard to the applicable tests and policy
considerations. This may include a consideration
of whether the
post-appearance detention was lawful.
[6]
It is these public policy considerations that will serve as a measure
of control to ensure that liability is not extended too far.
The
conduct of the police after an unlawful arrest, especially if the
police acted unlawfully after the unlawful arrest of the
plaintiff
,
[7]
is to be evaluated and considered in determining legal causation.
In addition, every matter must be determined on its own
facts –
there is no general rule that can be applied dogmatically in order to
determine liability.”
[28]
Footnote 93 in para 63 bears repeating:
“
[93]
In all the cases discussed above this was the case. Examples
include misleading a court or presenting false evidence.”
[29]
Due
to the false evidence about the appellant having escaped from
detention, there could have been no argument that the factual
chain
of causation was disturbed by legal causation. As appears from
De
Klerk
,
one of the cases referred to in para 63 was
Woji
v Minister of Police
2015 (1) SACR 409 (SCA).
[8]
This
is how the ConCourt in
De
Klerk
summarised the facts in
Woji
in
para 42:
“…
In
Woji, the accused was lawfully arrested. At the bail
application, the arresting officer testified that the accused could
clearly be seen in video footage of the alleged robbery for which he
were arrested. The accused was consequently remanded
in
custody. The police officer’s evidence, however, turned
out to be false – the video did not clearly depict
the accused.
…”
[30]
Hence the detention, despite a court order,
was not lawful detention (to the extent that this is a factor in
evaluating legal causation).
[31]
The
next leading case is
Mahlangu
and Another v Minister of Police
2020 (2) SACR 136.
The court also dealt with the liability of the
police for an unlawful arrest after the first remand before a
magistrate. The court
was split. Koen AJA
[9]
wrote the majority judgment. The plaintiffs were arrested on 29 May
2005, and were released on 10 February 2006 after the charges
were
withdrawn. The plaintiffs never pursued a bail application.
Ultimately this failure meant that the police’s liability
ended
as at 14 June 2005. Van der Merwe JA held that De
Klerk
did
not overturn
Woji
,
the effect of which he describes as follows in para 69:
“
In
Woji, therefore, this Court held the respondent liable for
post-appearance detention where the wrongful and culpable conduct
of
the police had materially influenced the decision of the court to
remand the person in question in custody. It is immaterial
whether
the unlawful police influence is exerted directly or through the
prosecutor. …”
[32]
This
is really the end of the matter on the question of causation. The
state did not argue (and could not argue in my respectful
view) that
damages suffered after detention by court order were too remote to be
recovered from the police; and could not argue
in my respectful view
that such an order was a
novus
actus interveniens
;
and did not argue (and could not argue in my respectful view) that
such damages were not foreseeable. In the circumstances of
this case,
the false affidavit by the investigating officer meant that the
police remained liable for damages caused by the unlawful
detention.
If the plaintiff bore the onus
[10]
to show legal causation, he succeeded.
Malicious prosecution
[33]
Although there are, in theory, two possible
causes of action available to the plaintiff in this matter (unlawful
arrest and detention
and malicious prosecution), and although both
were pleaded, he is perfectly within the law to seek payment for
damages for the
whole period of his detention as having been caused
by his unlawful arrest. As such I need not deal with the alternate
claim for
malicious prosecution. The pursuit of the alternative claim
caused minimal additional cost. I respectfully disagree with the
state’s
submission that I am obliged to dismiss the alternative
claim. In my view, I need not deal with it as it has become moot if
the
main claim is upheld, and I can make an order on costs that is
fair. That fair order is that the state must pay the costs of the
action. It is trite that fairness is the proper test in deciding
costs. See
Gelb v Hawkins
1960 (3) SA 687
(A) at 694A.
Time value of money
[34]
Having decided that the state, through an
unlawful act, acting at least negligently, caused the plaintiff to
suffer damages, the
remaining main issue is the amount of such
damages to be awarded to the plaintiff.
[35]
There is however another matter to address
first. The plaintiff, as he is entitled in law to do, sought interest
from the date of
the summons on the damages that I may award. This
demand focused the attention on the date as at which damages must be
determined:
Date of the delict (in this case the period from arrest
to release from detention is long); date of demand; date of summons;
or
date of judgment; or another date. After the hearing I sought
additional submissions on this aspect.
[36]
In this case the relevant dates were:
[36.1]
Arrest of the plaintiff 19 May 2017;
[36.2]
Release of the plaintiff from detention 24
January 2018;
[36.3]
Demand received by the state on or before 9
October 2018;
[36.4]
Summons issued 8 November 2018;
[36.5]
Summons served 27 November 2018;
[36.6]
Hearing completed 12 February 2021 (and
afterwards I called for further written submissions).
[37]
The date as at which damages must be
determined may be material. Although the assessment of general
damages is not done with mathematical
precision, especially in
periods of high inflation, awards will differ materially in value
depending if the award is determined
as at date of the delict or as
at date when the matter is argued. The practical norm is the later
date. Counsel usually make submissions
based on “
current
value
” of an earlier judgment in
seeking general damages. Judgments (my own too) reflect this
approach. Practically it is easy
and fair, as it provides for
inflation. If in such a case interest is awarded from date of the
award, the outcome remains fair.
In fact, the Road Accident Fund Act
56 of 1996 determines in section 17(3)(a) that no interest is payable
unless 14 days have elapsed
from the date of the court's order.
[38]
Having asked for interest from an earlier
date, the plaintiff focused the attention on a problem that is
immediately clear. If damages
are determined in the time value of
money as at date of the judgment, and interest is to run from date of
demand or service of
the summons, the plaintiff will receive double
compensation for the period that it takes for the trial to be
finalised. The converse
position is problematic too. If damages are
determined in the time value of money as at date of (completion?) of
the delict, and
interest is to run from date of demand or service of
the summons, the plaintiff will not be compensated for the period
that it
took to serve the summons.
[39]
The
Prescribed Rate of Interest Act 55 of
1975
addresses two main matters relevant to this issue, (a) the date
from which the interest is to run and (b) the rate of interest.
[40]
The traditional position is that
unliquidated amounts, such as the claim before me, had born interest
from the date of the judgment.
This position appears from in the
Prescribed Rate of Interest Act too
. See
section 2(1):
“
Interest
on a judgment debt
(1)
Every judgment debt which, but for the provisions of this subsection,
would not bear any interest after the date of the judgment
or order
by virtue of which it is due, shall bear interest from the day on
which such judgment debt is payable, unless that judgment
or order
provides otherwise.”
[41]
In 1997
section 2A
was inserted in the act.
It has the following relevant sections:
[41.1]
Section 2A(1)
provides for a default
position, linking judgments for unliquidated debts to
section 2(1)
referred to above-
“
Interest
on unliquidated debts
(1)
Subject to the provisions of this section the amount of every
unliquidated debt as determined by a court of law, or an arbitrator
or an arbitration tribunal or by agreement between the creditor and
the debtor, shall bear interest as contemplated in
section 1.
”
[41.2]
Section 2A(2)
then reads that
notwithstanding the previous subsection -
“
(2)
(a) Subject to any other agreement between the parties and the
provisions of the National Credit Act, 2005 (Act 34 of 2005)
the
interest contemplated in subsection (1) shall run from the date on
which payment of the debt is claimed by the service on the
debtor of
a demand or summons, whichever date is the earlier.”
[42]
The debt by law thus bears interest from a
date prior to the date when the court determines the amount. The
first date in this matter
has been the date of service of the demand
that preceded the summons. The plaintiff however sought interest from
the date of the
summons - 8 November 2018.
[43]
These interest provisions could work
unfairly, as the first case addressed below will illustrate. The act
provides a solution in
section 2A(5). Section 2A(5) reads:
“
Notwithstanding
the provisions of this Act but subject to any other law or an
agreement between the parties, a court of law, …
may make such
order as appears just in respect of the payment of interest on an
unliquidated debt, the rate at which interest shall
accrue and the
date from which interest shall run.”
[44]
Drake Flemmer & Orsmond Inc and
Another v Gajjar
2018 (3) SA 353
(SCA)
is instructive on the fairness of the impact of the time value of
money and interest. The claims in issue were for unliquidated
contractual damages. The judgment dealt with the date at which such
damages should be assessed. As such, the reasoning applies
in the
case before me too where I also had to address unliquidated damages.
The plaintiff brought an action against two sets of
attorneys for
professional negligence. The first claim was for damages suffered
when a Road Accident Fund (“the RAF”)
claim was settled
at substantially below its true value. The second claim was for the
prescription of the claim against the first
set of attorneys for
under-settling the RAF claim.
[45]
The collision occurred in 1997. The claim
was lodged with the RAF in 1999. An offer by the RAF was accepted in
1999. The plaintiff,
unbeknown to the first set of attorneys, had
more severe symptoms caused by the collision, and the claim was thus
under-settled.
The second set of attorneys issued summons against the
first set of attorneys in 2005 for negligent representation. By then
the
claim had prescribed. A third set of attorneys joined the second
set of attorneys as defendants in 2012. The trial started in 2015.
Judgment followed in 2016.
[46]
The
SCA drew a distinction between a case where the attorney had all the
relevant information for assessing a proper settlement
but
negligently under-settles, and a case where the attorney did not have
all the information and negligently did not investigate
the
matter.
[11]
In the
under-settlement claim, the first set of attorneys did not have all
the facts. They thus did not cause the loss on the date
of the
under-settlement in 1999, but when the matter would have served
before the notional trial court as at December 2002. The
SCA held
that the prescription claim arose on the date of the prescription in
December 2002, not when the matter would have come
to trial and
payment be obtained in February 2005.
[47]
It is trite that in law the date for the
determination of delictual damages is usually the date of the delict.
Directly relevant
to the matter before me, the SCA held in para 38:
“
Although
delictual damages are normally assessed at the date of the delict, in
personal injury claims the court takes into account
events occurring
up to the date of trial.
[12]
The
claimant is entitled to compensation for all injuries and sequelae
which are known or reasonably foreseeable at the trial date.
I have
estimated that the plaintiff's claim against the RAF would have come
to trial on 1 December 2002. Any evidence that would
have been
available to the plaintiff at that time could have been presented in
support of his claim.”
[48]
The SCA determined that in the matter
before it, the damages must be determined as at 2002. However, on the
facts of the matter
it would be unjust not to compensate the
plaintiff for the long delays. It was in fact the second firm of
attorneys that delayed
the matter till 2012. Hence the court found in
para 68:
“
In
summary, the correct approach in the present case would have been for
the plaintiff to prove the nominal value of his damages
as at the
notional trial date of 1 December 2002. That would have been the
value of the claim against DFO which LRI allowed to
prescribe on 21
December 2002. The time value of money would have been dealt with by
an order for interest in terms of s 2A(5),
such interest to run from
21 December 2002. Put differently, s 2A(5) provides the means by
which a court in this country can apply
the interest-rate solution.”
[49]
The “
interest
rate solution
” is the answer to
the effect of
SA Eagle Insurance Co Ltd
v Hartley
[1990] ZASCA 106
;
1990 (4) SA 833
(A) at 840G-H
on the time value of money:
“
The
principle of currency nominalism is in my view to be applied as
follows in the present case. The respondent suffered a loss
of
income, expressed in rands, prior to the trial. That loss had to be
made good by the appellant by paying to the respondent the
number of
rands which he has lost, irrespective of whether the purchasing power
of the rand has varied in the interim.”
[50]
In the mater before me the delict ended on
the plaintiff’s release – 24 January 2018. I will
determine his damages
as at that date, as he suffered an ongoing
wrong during the whole period of his detention, in fact he suffered
repeated delicts.
See
Slomowitz v
Vereeniging Town Counc
il
1966 (3) SA
317
(A) at 330F-332C and
Lombo v African
National Congress
2002 (5) SA 668
(SCA)
at para 26. The plaintiff sought interest from a later date, the date
of the summons, 8 November 2018.
[51]
In summary, the answer therefore seems to
me that as damages are calculated as at date of the delict, any
unjust result caused by
a delay is to be dealt with by applying
section 2A(5)
of the
Prescribed Rate of Interest Act. This
section
attracts no onus. See
Adel Builders
(Pty) Ltd v Thompson
at
2000 (4) SA
1027
(SCA) at para 15. In this case I will act fairly to both parties
if I simply apply the prescribed rate of interest as claimed.
[52]
If
I apply the rate as contemplated in
sections 1(1)
[13]
and 1(2)(a)
[14]
of the
Prescribed Rate of Interest Act, that
rate is 10% per year.
That was the rate that applied when summons was issued. See
Crookes
Brothers Ltd v Regional Land Claims Commission for the Province of
Mpumalanga and Others
2013 (2) SA 259
(SCA) at para 22 referring to
Davehill
(Pty) Ltd and Others v Community Development Board
1988 (1) SA 290
(A) at 300J-301E.
What damages did the
plaintiff suffer?
[53]
I can now address the remaining issue, the
amount of damages to be awarded. The plaintiff claimed damages as
follows:
[53.1]
Unlawful arrest on 19 May 2017, R50 000.00.
This claim was not pursued as a separate claim in the end;
[53.2]
Unlawful detention from 19 May 2017 to 22
May 2017 (3 days), R150 000.00. This claim was persisted
with, plus interest
at the rate of 10% from date of the summons;
[53.3]
Further
detention from 22 May 2017 to 24 January 2018 (according to the
plaintiff computed at a fair and reasonable rate of R20
000.00 per
day of incarceration, 248/240 days), R4 800 000.00. This claim in the
end was reduced to R1 250 000.00, plus interest
at the rate of 10%
from date of the summons. I address the damages for the incarceration
below. It is helpful to a court if a plaintiff
seeks realistic
damages, and not outrageous sums;
[15]
[53.4]
Loss of income for eight (8) months at R3
200.00 per month, R25 600.00. This claim, the plaintiff in the
end sought to incorporate
in the claim set out above in one award,
but it seems to me to be an error in law to treat it as part of a
general damages claim.
The claim was not abandoned.
[54]
The total amount claimed in the summons was
R5 025 600 .00. In the end, the total amount claimed in argument was
reduced to R1 400
000.00.
[55]
Dealing
with the claim for loss of income first, the evidence shows that the
plaintiff earned R500.00 per week, or about (dependent
on overtime)
between R2 600.00 and R2 800.00 per month. The state argued that in
the absence of “
a
salary payslip or an affidavit from his employer
”
[16]
the claim should fail. In my view, the plaintiff could do no more
than state (as he did) that he earned a cash wage, given to him
in an
envelope. He testified that his former employer has passed away. He
presented his available evidence and is entitled to payment.
It seems
to be one of those cases where an estimate of a monthly loss of R2
700.00 would be appropriate for the ten months of May
2017 to January
2018, being R27 000.00. The plaintiff claimed R25 600.00 plus
interest at the rate of 10% per year from 8 November
2018. He is
entitled to such compensation.
[56]
General damages remain as the outstanding
issue.
[57]
In my view one should not split general
damages arising from the unlawful arrest into separate general
damages claims (as claimed
by the plaintiff), whether broken down in
claims for every day of detention, or claims dependent on the
facility where the plaintiff
was detained, or claims dependent on
milestones in the process of arrest, initial detention at the police
cells, first appearance
in court, etc. Such damages arise from one
event, the unlawful arrest. The experiences in some periods of
detention would have
been worse than others, but one should assess
the whole period of detention as a period of detention.
[58]
Visser and Potgieter
Law
of Damages, Third Edition, at 15.3.9 at page 545 548 states the
following factors that generally play a role in the assessment
of
damages in similar cases, an assessment to determine what is
fundamentally fair and equitable (footnotes omitted):
“…
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 (e.g. solitary confinement or humiliating nature)
of the
deprivation of liberty; the status, standing, age and health and
disability of the plaintiff; the extent of the publicity
given to
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
effect 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 actio iniuriarum also has a
punitive function.”
[59]
This list of factors has been quoted with
approval in this division in
Mokiyi v
Minister of Police and Another
[2019]
ZAGPPHC 440 at para 9 and in
Mathe v
Minister of Police
2017 (2) SACR211
(GJ) at para 19.
Visser and Potgieter
add at page 458 (footnotes omitted):
“
Neethling
et al add the following factors with reference to wrongful arrest:
the circumstances surrounding the deprivation of liberty,
its
duration, the presence or absence of an apology or satisfactory
explanation. Naturally satisfaction is increased if additional
personality interests such as dignity and good name are involved.”
[60]
Applying the above:
[60.1]
Our society places a high value on the
right to physical liberty. This matter is no different;
[60.2]
The circumstances under which the
deprivation of liberty took place were not unusually shameful or
harsh. On the facts of this matter,
I see this factor as a neutral
factor. The same would apply to the extent of the publicity given to
deprivation of liberty of the
plaintiff, it too is a neutral factor
on the facts of this matter;
[60.3]
Unlawful detention by its nature infringes
upon the rights to physical freedom, to dignity and a good name. On
the facts of this
matter, I see this factor as a neutral factor;
[60.4]
The investigating officer erred, but I
cannot find that he was motivated by improper motive on the evidence
before me. On the facts
of this matter, I see this factor as a
neutral factor;
[60.5]
The detention was of long duration,
eight-and-a-half months. It seems to me that the awards in our courts
start on a higher proportional
award and then proportionally reduce
the longer the detention is. The total award thus exceeds the awards
for shorter periods,
without being calculated as an
incarceration-rate-per-day. In the end, the inquiry is what amount of
general damages is appropriate
relief on the facts of this case. I
agree with the finding in
Latha and
Another v Minister of Police and Others
2019
(1) SACR 328
(KZP) at paras 11-12 relying on
Mkwati
v Minister of Police
[2018] ZAECMHC 2
at para 18 and
Alves v Lom Business
Solutions (Pty) Ltd and Another
2012
(1) SA 399
(GSJ) at para 36 that it is “
not
helpful to calculate a daily tariff or what has been termed a
‘flat-rate’ in arriving at an award
”;
[60.6]
I did not have evidence before me to make a
finding that detention in an overcrowded, violent cell is much less
injurious than solitary
confinement. On the facts of this matter, I
see this factor as a neutral factor;
[60.7]
The manner of detention was not unusually
humiliating. On the facts of this matter, I see this factor as a
neutral factor;
[60.8]
I have some difficulty in considering the
status, standing, and age of the plaintiff as factors. Yes, the
plaintiff in this matter
had limited education (grade seven), and yes
he had a job that is not one with high status (a security guard
earning relatively
low wages). But the right to dignity and the right
to equality seem to me to point away from using such facts as reasons
to reduce
an award. On the facts of this matter, I see these factors
as neutral factors;
[60.9]
The plaintiff was 38 years old at the time
of his arrest. I have difficulty in putting a factoring value on age.
At what stage(s)
in one’s life is age a factor to increase or
decrease an award? On the facts of this matter, I see this factor as
a neutral
factor;
[60.10]
The plaintiff’s health and any
disability played no role in this matter;
[60.11]
The absence of an apology or satisfactory
explanation of the events by the defendant, do play a role. The
matter was defended to
the bitter end, but so do I assume are all
cases defenced on the merits and on the
quantum
.
On the facts of this matter, I see these factors as neutral factors;
[60.12]
The plaintiff did not contribute to his
misfortune;
[60.13]
I do consider the effect an award may have
on the public purse;
[60.14]
The plaintiff was told that he should
receive lower compensation as he had been in detention before. The
plaintiff had three prior
convictions and he testified that he served
his sentences in juvenile prisons: 1998 - four years for motor
vehicle theft; 1998
- fifteen years for robbery with aggravated
circumstances; and 2004 - eight years for possession of a firearm. In
some sense, one
could argue it was worse, as he had obtained gainful
employment.
[61]
The main factors are that the plaintiff was
unlawfully arrested for a crime he did not commit and deprived of his
freedom for a
prolonged period. During his detention for about
eight-and-a-half months he endured overcrowded, violent, dirty,
detention conditions,
and was limited in his interaction with people
dear to him. There were very limited toilet and washing facilities,
and initially
too few matrasses and blankets. He encountered the
power of prison gangs and ineffective protection by the prison
warders. These
facts, regrettably, are notorious and little would be
added to this judgment by repeating the uncontested evidence of the
horrific
conditions he encountered in detention.
[62]
The general damages to be awarded, despite
its compensatory purpose, "…
are
not susceptible to exact or immediate calculation in monetary terms.
In other words, there is no real relationship between the
money and
the loss
". See
Van
der Merwe v Road Accident Fund and Another (Women's Legal Centre
Trust as Amicus Curiae)
[2006] ZACC 4
;
2006 (4) SA 230
(CC) at para 39. Still the award must be just and equitable,
compensating the victim for the loss (
Van
der Merwe
para 41).
[63]
As verbalised in
De
Jongh v Du Pisanie
[2004] 2 All SA 565
(SCA) at para 58, the difficulty is that a court is asked to
determine an amount of compensation as general damages for a loss
that money cannot compensate. As such, the past judgments are useful
to determine the amount and as set out in
De
Jongh
para 56, a court should guard
against its (humane) tendency to over-compensate due to its sympathy
for the victim. In considering
comparable awards, they remain an
aide, broad parameters, to ensure consistent and predictable awards,
which I agree is an inherent
requirement of fair awards. See
De
Jongh
at para 64.
[64]
Against this background, I turn to the last
factor, the awards in previous comparable cases and the effect of
inflation. Comparable
decisions assist to steer me away from gut
feeling and blind guesses. In this process, I do not and cannot seek
mathematical accuracy
in applying them, in the often widely differing
cases in the comparable range. See
De
Jongh
at para 63-64 and
Minister
of Safety and Security v Seymour
2006
(6) SA 320
(SCA) at para 4, and 16-20. I endeavoured not to follow
them slavishly, only to use them as a guide, acutely aware of the
differences
in each case. Still, it is often difficult too to
ascertain the reasons why some judgments contain outlier high awards.
[65]
The state thought that R10 000.00 per month
would suffice as general damages for unlawful detention of
eight-and-a-half months (R85
000.00). If one could have understood
the decision to contest merits and quantum, and if one could have
understood the decision
not to apologise, this submission is in its
effect, insultingly low. I used it as a factor to increase the
general damages awarded
in this case. This is no way to treat a
person, wronged by the state, a state founded on the value of human
dignity. That state
will make mistakes, it will, through no ill will,
cause harm, and it has limited resources, but it needs to do what is
right. Offering
compensation in this case of R85 000.00 is not. As
will appear below, the lowest comparable award was for about R300
000.00.
[66]
The
state relied on “
Tyulu
v Minister of Safety and Security”
2009 (5) SA 85
(SCA) at paras 26-27
[17]
regarding the factors to consider in my award. The SCA in
Tyulu
reduced an award of R280 000.00 by the trial judge and R50 000.00
by an appeal court, to R15 000.00. A 48-year old magistrate
had been
unlawfully arrested and detained for being drunk in public, and
thereafter on the same day for drunk driving. The first
arrest was
found to have been unlawful, the second not. The magistrate was in
unlawful detention for 15 minutes in 2003. The principles
in
Tyulu
(set out in footnote 17) guide me but, with respect, the award cannot
be compared to the current facts.
[67]
The
state also referred me to a judgment dealing with detention for only
three days,
Sithebe
v Minister of Police
[2014] ZAGPJHC 201. The judgment dealt with an unlawful arrest and
detention in November 2011. The learned judge awarded R150 000.00
in
August 2014. It appears to me that the learned judge used the time
value of money as in 2014.
[18]
With respect, I did not follow the argument how this award would be
helpful in determining that an award for unlawful detention
for
eight-and-a-half months should be less - R85 000.00.
[68]
As reflected, in the end the plaintiff
claimed R1 400 000.00 (less the loss of income claim). I round it off
to a claim for general
damages for R1 375 000.00. The plaintiff
referred me to
Mbwanja v Minister of
Police
[2017] ZAGPPHC 176. In that case
the plaintiff was unlawfully arrested in January 2006, and remained
in custody for five months.
The court awarded R500 000.00. The
plaintiff’s arrest in
Mbwanja
was more publicly demeaning than in the present case. He was 29, and
had a diploma from a Technikon, and had a comfortable home
life,
employed as a manager in a casino. His family lost their home, and
their furniture in the period that he was unemployed.
The learned
judge did not refer to comparable awards, and awarded interest from
the date of judgment, 5 April 2017. This would
mean, considering the
facts of the two matters, that a comparable award in the present case
would be about R800 000.00 as at 24 January
2018.
[69]
The
only further matter relied upon by the plaintiff with a degree of
compatibility as to duration of detention is
Onwuchekwa
v Minister of Police and Another
[2015] ZAGPPHC 919. The plaintiff was arrested in October 2009 and he
remained in detention for 44 days (one-and-a-half months).
The
learned judge seemingly determined the value of comparable awards as
at trial,
[19]
and awarded
R600 000.00 on 28 August 2015, but awarded interest from 14
February 2012. This would mean, considering the facts
of the two
matters, that a comparable award in the present case would be about
R2 500 000.00 as at 24 January 2018.
Such an award
would be so out of proportion to any other award, that I decline to
consider it as a guide.
[70]
I also looked at the following comparable
cases. In making an assessment of what the judgments mean for the
case before me, I considered
inflation, length of detention, and any
peculiar facts that would have led to a higher award in the case
referred to. Where I could
see an indication that the judge worked
with the time value of money as at date of the judgment, I used that
date. Where I could
see no indication, and interest was backdated to
date of demand or summons, I used the date of the delict as the base
to calculate
present value as at date of the delict:
[70.1]
Minister of Justice v Hofmeyr
[1993] ZASCA 40
;
1993
(3) SA 131
(A)
,
a
case where the plaintiff was unlawfully detained for five months from
3 May 1988, amounting to effective solitary confinement.
The SCA
upheld an award of R50 000.00 on 22 August 1990. A comparable award
as 24 January 2018 would be substantially higher (about
R300 000.00).
This would mean, considering the facts of the two matters, that a
comparable award in the present case as at 24 January
2018 would be
about R500 000.00. I point out that this is a judgment by the SCA;
[70.2]
Mthimkhulu and Another v Minister of
Law-and-Order
1993 (3) SA 432
(E), a
case where the plaintiffs were arrested on 8 March 1991, and detained
for 144 days (four-and-a-half months). The judgment
was delivered on
24 November 1992. The learned judge did not refer to comparable
authority and ordered interest to run from date
of judgment. The
plaintiffs were awarded R40 000.00 each, despite some differences in
their personal circumstances. This would
mean, considering the facts
of the two matters, that a comparable award in the present case as at
24 January 2018 would be about
R400 000.00;
[70.3]
Zealand
v Minister of Justice and Constitutional Development and Another
[2008] ZACC 3
;
2008
(4) SA 458
(CC), a case where the plaintiffs were charged and
sentenced on 28 September 1998 to an effective sentence of 18 years
imprisonment
on a charge of murder. The convictions and sentence were
set aside on appeal on 23 August 1999. Due to an error by the
registrar
of the Grahamstown High Court, they remained in detention
for an effective further period of four years and ten months until 30
June 2004. I have been unable to trace the judgment awarding
damages;
[20]
[70.4]
Stemar v Minister of Police and Another
[2014] ZAGPPHC 295, a case where the plaintiff was
arrested in November 2010 and he remained in detention for eleven
months until
October 2011. The court awarded R450 000.00 on 16 May
2014, with interest from the date of summons. The learned judge did
not refer
to comparable awards. This would mean, considering the
facts of the two matters, that a comparable award in the present case
as
at 24 January 2018 would be about R400 000.00;
[70.5]
Riochards v Minister of Police and
Others
[2014] ZAGPJHC 280, a case where
the plaintiff was arrested in March 2010 and he remained in detention
for 115 days (four months)
until August 2010. Demand was made on 14
June 2012. The court awarded R500 000.00 on 23 October 2014, with
interest from the date
of judgment. This would mean, considering the
facts of the two matters, that a comparable award in the present case
as at 24 January
2018 would be about R1 000 000.00. This award
seems high if compared to the judgments listed immediately above and
next;
[70.6]
Woji v Minister of Police
2015 (1) SACR 409
(SCA), a case where the
plaintiff was arrested in November 2007 and he remained in detention
for thirteen months until January
2009. The court awarded R500 000.00
on 11 September 2014, with interest from the date of demand. This
date does not appear to be
reflected in the judgment. The judgment
gives no other indication that the SCA considered the date of the
delict to be the relevant
date, but based on the interest award, I
assume it did. This would mean, considering the facts of the two
matters, that a comparable
award in the present case as at 24 January
2018 would be about R500 000.00 too;
[70.7]
Links v Minister of Safety and Security
and Another
[2015] ZAECPEHC 18, a case
where the plaintiff was arrested in December 2009 and he remained in
detention for three months until
March 2010. The court awarded R250
000.00 on 30 March 2015, with interest from the date of demand. This
date does not appear to
be reflected in the judgment. The judgment
gives no other indication that the court considered the date of the
delict to be the
relevant date, but based on the interest award, I
assume it did. This would mean, considering the facts of the two
matters, that
a comparable award in the present case as at 24 January
2018 would be about R900 000.00. This amount seems high if
compared
to the judgments referred to above, including judgments in
the SCA;
[70.8]
Okonkwo
v Minister of Home Affairs and Another
[2015]
ZAECELLC 8, a case where the plaintiff was unlawfully arrested in
August 2012, and was detained for 75 days (two-and-a-half
months)
until May 2013. The plaintiff’s arrest was a humiliating,
public affair. He had to deal with unwelcome sexual advances
in
detention. The court awarded R600 000.00, with interest from the date
of judgment, 30 June 2015. The learned judge did not refer
to earlier
cases. The judgment in the application for leave to appeal
[21]
reflects that, in fact, the award of damages was meant to cover four
claims (
contumelia
,
R400 000.00 claimed, deprivation of liberty, R600 000.00 claimed,
legal expenses R15 000.00 claimed, and loss of business income,
R75
000.00 claimed). I do not know what happened in the appeal, and could
not really use the judgment for comparison purposes;
[70.9]
Latha
and Another v Minister of Police and Others
(supra)
2019 (1) SACR 328 (KZP),
[22]
a
case where the plaintiffs were arrested in June 2006 and they
remained in detention for six years and eleven months until May
2013.
They were severely assaulted by the police, assaulted in prison,
stabbed in prison, and the list goes on. The learned judge
referred
to comparable cases and referred to “
current
value
”
and “
present
day value
”
of the earlier awards and awarded R3 500 000.00 on 15 August
2018 with interest from the date of judgment. This would
mean,
considering the facts of the two matters, that a comparable award in
the present case as at 24 January 2018 would be about
R300 000.00.
The learned judge, Seegobin J recorded that the award in in the
Zealand
matter was R2 000 000.00. The exercise to compare previous judgments
in the
Latha
judgment was most helpful in the preparation of this judgment;
[70.10]
Lebelo v Minister of Police
[2019] ZAGPPHC 69, a case where the plaintiff was
arrested in May 2013 and he remained in detention for 101 days
(three-and-a-half
months) until 6 September 2013. The plaintiff faced
attacks in jail, including violence of a sexual nature. He was
robbed. The
court considered the present-day values of comparable
cases, awarded R500 000.00 on 28 February 2019 and made no order as
to interest.
This would mean, considering the facts of the two
matters, that a comparable award in the present case as at 24 January
2018 would
be about R950 000.00. This amount seems high if compared
to the judgments referred to above, including judgments in the SCA;
[70.11]
Msongelwa v Minister of Police
2020 (2) SACR 664
(ECM), a case where the
plaintiff was arrested in August 2011 and he remained in detention
for 158 days (five months) until 12
January 2012. The plaintiff was
arrested at a tavern, shot in his ankle, kept under guard in a public
hospital. He was assaulted
in prison. The court awarded R5 000 000.00
on 17 March 2020, with interest from 30 days after date of judgment.
I assume that the
award was meant to be as at March 2020. This would
mean, considering the facts of the two matters, that a comparable
award in the
present case as at 24 January 2018 would about R7 000
000.00. Such an award also would be so out of proportion to any other
award,
that I decline to consider it as a guide.
[71]
It seems to me that the appropriate level
at which to set general damages would be at R600 000.00 as at 24
January 2018. I have
much sympathy for the plaintiff; I had to guard
against my sympathy unduly influencing my award. Testing my award, I
asked what
award I would have made had the police in this instance
shot the plaintiff in the arrest and rendered him quadriplegic for
life,
as opposed to have had him imprisoned for about eight-and-half
months. I also asked what the award would have been had the plaintiff
been detained for nine days as opposed eight-and-a-half months.
Costs
[72]
The matter was previously on the roll and
costs were reserved. I am advised that the presiding judge
unexpectedly caused a postponement
of the trial as the notes by the
presiding magistrate had not been transcribed. Both parties wanted
the matter to proceed, but
the presiding judge saw the matter
differently. Illegible handwritten notes and affidavits are a
continuous problem in trials.
It was a problem in this case too,
after transcription of the notes by the presiding magistrate, as
especially the investigating
officer’s handwriting is hard to
read. Nothing in this judgment should be interpreted as an approval
of the failure by a
party to transcribe handwritten material
documents. However, it seems to me to be a postponement where the
appropriate costs order
in respect thereof is that costs should
follow the result.
[73]
The plaintiff sought penalising costs. No
notice of such a request was given. It seems to me to be an unduly
harsh order. I have
found the defence by the state to be without
merit, but I am hesitant to penalise it. A penalising costs order
must remain extraordinary
relief.
Accordingly, I make the
following order:
1.
The first defendant is ordered to pay to
the plaintiff the sum of R25 600.00 plus interest at the rate of 10%
per year from 8 November
2018 to date of payment in full;
2.
The first defendant is ordered to pay to
the plaintiff the sum of R600 000.00 plus interest at the rate of 10%
per year from 8 November
2018 to date of payment in full;
3.
The first defendant is ordered to pay the
plaintiff’s costs of the action, including all reserved costs.
DP
de Villiers AJ
Heard
on:
8-10 and 12 February
2021
Delivered on:
12 April 2021 by uploading on CaseLines
[Paragraph
1 revised on 23 June 2021]
On behalf of the
Plaintiff:
Mr L Naidoo
Instructed
by:
Logan Naidoo Attorney
On behalf of the
Defendants:
Adv M Mhambi
Instructed
by:
State Attorney
[1]
Minister
of Law and Order and Others v Hurley and Another
1986 (3) SA 568
(A) at 589E-F.
[2]
“37 Masetlha v President of the RSA
[2007] ZACC 20
;
2008 (1) SA 566
(CC)
(2008
(1) BCLR 1)
para 23.”
[3]
“
38
Hill v Hamilton-Wentworth Regional Police Services Board
[2007] 3
SCR 129
(2007 SCC 41)
para 73, adapted for present purposes. Compare
Al Fayed and Others v Commissioner of Police of the Metropolis
[2004] EW CA Civ 1579
para 82.”
[4]
This
judgment does not call for a full discussion of the factual
causation versus legal causation. In this regard see
Nohour
and Another v Minister of Justice and Constitutional Development
2020 (2) SACR 229
(SCA) at paras 15-19.
[5]
Basson
AJ, Dlodlo AJ, Khampepe J and Petse AJ concurring.
[6]
“
[92]
Importantly, this relationship between lawfulness of the decision to
remand and legal causation of the unlawful arrest is
distinct from
the relationship between wrongfulness and legal causation of the
same delict. I make no pronouncements on
the latter.”
[7]
“
[93]
In all the cases discussed above this was the case. Examples include
misleading a court or presenting false evidence.”
[8]
Woji
is also reported as
W
v Minister of Police
[2014] ZASCA 108.
[9]
Cachalia
JA and Dolamo AJA concurring.
[10]
It
seems that the plaintiff bears it as part of the overall onus. See
Oppelt
v Department of Health, Western Cape
2016 (1) SA 325
(CC) at para 35, perhaps an onus arises once the
issue is raised by the state.
[11]
Paras 40-41.
[12]
“
4
See eg
Botha
v Rondalia Versekeringskorporasie van Suid-Afrika Bpk
1978 (1) SA 996
(T) at 1004D – 1005B;
Beverley
v Mutual & Federal Insurance Co Ltd
1988 (2) SA 267
(D) at 271D – I;
Road
Accident Fund v Monani and Another
2009 (4) SA 327
(SCA) ([2009] ZASCA 18) para 9”.
[13]
“
If
a debt bears interest and the rate at which the interest is to be
calculated is not governed by any other law or by an agreement
or a
trade custom or in any other manner, such interest shall be
calculated at the rate contemplated in subsection (2) (a) as
at the time when such interest begins to run, unless a court of law,
on the ground of special circumstances relating to that
debt, orders
otherwise.”
[14]
“
For
the purposes of subsection (1), the rate of interest is the
repurchase rate as determined from time to time by the South African
Reserve Bank, plus 3,5 percent per annum”.
[15]
I appreciate the plaintiff’s approach.
[16]
An
affidavit would have been inadmissible evidence, unless agreed to by
the state.
[17]
The correct reference is
Minister
of Safety and Security v Tyulu
2009 (5) SA 85
(SCA) at para 26-27:
“
[26]
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).
[27]
Having given careful consideration to all relevant facts, including
the age of the respondent, the circumstances of his arrest,
its
nature and short duration, his social and professional standing, the
fact that he was arrested for an improper motive and
awards made in
comparable cases, I am of the view that a fair and appropriate award
of damages for the respondent's unlawful
arrest and detention is an
amount of R15 000.”
[18]
See para 202.6 of the judgment.
[19]
Para 6.
[20]
But see below, it was R2 000 000.00.
[21]
Okonkwo
v Minister of Home Affairs and Another
[2015] ZAECELLC 15.
[22]
It is a judgment that I made considerable use of, with gratitude for
the summary of case authority on point.