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[2021] ZAGPJHC 84
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Minister of Police v Manyoni (41499/2018) [2021] ZAGPJHC 84 (24 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
1. Reportable:
No
2. Of interest to
other judges: No
3. Revised: Yes
CASE
NO: 41499/2018
In
the matter between:
THE
MINISTER OF POLICE
Applicant
and
ZAKHELE
MANYONI
Respondent
In
re:
ZAKHELE MANYONI
Plaintiff
and
THE MINISTER OF
POLICE
First Defendant
THE NATIONAL
DIRECTOR OF
PUBLIC
PROSECUTIONS
Second Defendant
Application
for leave to appeal in a damages claim for unlawful arrest and
prolonged detention of more than eight months.
JUDGMENT
DE
VILLIERS, AJ:
Introduction
[1]
This
is an application for leave to appeal against my judgment dated 12
April 2021. The very short background is that I upheld the
respondent’s main claim based on unlawful arrest against the
applicant, the Minister of Police, and awarded damages. I made
no
finding in respect of the respondent’s alternative claim for
malicious prosecution, and made no order in respect of his
alternative claim against the National Director of Public
Prosecutions. Unsurprisingly, the second defendant, the National
Director
of Public Prosecutions, does not seek leave to appeal.
Leave
to appeal: the test
[2]
In
argument, the applicant expressly limited its appeal as one that has
to be evaluated in terms of
section 17(1)(a)(i)
of the
Superior
Courts Act 10 of 2013
.
[1]
The
applicant’s argument was that this test is the same test that
had applied under the Common Law. This submission, with
respect, is
incorrect.
[3]
The
law pertaining to
section 17(1)(a)(i)
of the
Superior Courts Act is
summarised in
Fair-Trade
Independent Tobacco Association v President of the Republic of South
Africa and Another
(21688/2020) [2020] ZAGPPHC 311
(24
July 2020) para 4-6, a judgment by a full court. It is now required
that there must be a measure of certainty that another court
will
differ from my judgment for leave to appeal to be granted. This is
more than “
just
a mere possibility that another court …, will, not might, find
differently on both facts and law
”
,
as set out in
Fair-Trade
Independent Tobacco Association,
and in the judgments referred to therein.
[4]
Hence
I will apply herein the test as set out in
Fair-Trade
Independent Tobacco Association
in
considering the four themes in the application for leave to appeal.
The first
theme: the apportionment argument
[5]
At trial, the defendants made common cause
and were represented by one legal team. That team now acts for the
applicant only. A
major part of the argument before me was that the
applicant believes that if I made an award, I was obliged to make an
order apportioning
blame between the Minister of Police and the
National Director of Public Prosecutions, the other defendant. I
refer to this submission
herein as “
the
apportionment argument
”. It was
my impression that the apportionment argument formed the basis for
the applicant informing me that it intends to
take this matter to the
Constitutional Court, if necessary.
[6]
The applicant denied in the plea that the
respondent’s detention after 22 May 2017 was unlawful, and
pleaded that this was
so as he was detained in terms of a court
order. As reflected in my original judgment, with respect, this is
not our law. The applicant
pleaded no apportionment of any award to
be made against it if I were to reject the pleaded defence. It also
could not have done
so, as it made common cause with the second
defendant. Thus, the apportionment argument was not pleaded. Assuming
(but not making
such a finding) that I must still consider the
argument, I address it in what follows.
[7]
At
the outset, in its heads of argument, the applicant seeks leave to
appeal to the Supreme Court of Appeal (“
the
SCA
”)
as I allegedly misapplied
De
Klerk v Minister of Police
2020 (1) SACR 1
(CC). With respect, I do not follow the reasoning why
this would mean that any leave to appeal must be to the SCA.
[8]
The
pleaded contention that a detention in terms of an order by a
magistrate is lawful detention thereafter, with respect is not
our
law. The argument was rejected as a universal principle in
De
Klerk
.
I did address it in my judgment under legal causation in paragraphs
25-32.
De
Klerk
did
not
find that a separate delict was required for the police’s
liability to continue from date of detention in terms of a court
order. To the contrary, the majority judgment rejected the view that
the court dealt with two delicts (paragraph 19 and 23). See
paragraph
1:
“…
The
main issue for determination is whether the Minister of Police (the
respondent) is liable to compensate Mr de Klerk (the applicant)
for
the entire period of his detention following his unlawful arrest,
including the period following his first appearance in court.
Related questions are whether the unlawful detention of the applicant
ceased when the Magistrate ordered his further detention
and whether
the Magistrate’s order rendered the subsequent harm caused by
his detention too remote (for the purposes of legal
causation) from
the unlawful arrest
.”
[9]
Thus
the police would remain liable after an unlawful arrest
unless
the damages are too remote (paragraph 24 to 47, especially paragraph
28, and also see paragraph 65). Even where the magistrate
erred in
not releasing the detained person on bail at the first hearing (see
paragraph 33), the police could remain liable (the
result of the
judgment). The magistrate’s error does not break the chain of
causation (see paragraphs 33, 34, 35 and 45).
The court expressly
held that our law is not that the applicant is necessarily not held
liable for loss arising from the post-court
appearance detention of
the detained person (paragraphs 36 and 45). “…
liability
should be determined in accordance with the principles of legal
causation, including constitutionally infused considerations
of
public policy
”
(paragraph
47 and also see paragraph 63). The question simply formulated is “
did
the
wrongful
act of Constable Ndala in arresting the applicant legally cause the
harm arising from his detention for a further seven
days after his
first court appearance? The determination of legal causation is
based on the consideration of the various
traditional factors already
discussed, including direct consequences, reasonable foreseeability,
and the presence of a novus actus
interveniens. The
implications of these factors must then be tested against
constitutionally-infused considerations of public
policy
”
(paragraph 65).
“…
In
establishing a delictual claim, a plaintiff needs to prove that the
unlawful, wrongful conduct of the police (i.e. the arrestor)
factually and legally caused the harm (post-court hearing deprivation
of liberty). The plaintiff does not need to establish,
necessarily, the unlawfulness of the harm (i.e. that the detention
after remand was itself unlawful). The plaintiff need
only
establish that the harm was not too remote from the unlawful arrest.
…”
(paragraph
60).
[10]
The
applicant’s argument with respect is also against the law as
set out in
Mahlangu
and Another v Minister of Police
(CCT 88/20) [
2021] ZACC 10
(14
May 2021). In that case, the appellants had not applied for bail
after their arrest. The court held that even that fact does
not break
the chain of causation following upon an unlawful arrest. The trial
court in
Mahlangu
held
that the Minister of Police’s liability ceased once the
magistrate made an order for further detention during the first
court
appearance. That was the applicant’s pleaded case before me.
The full court dismissed the appeal and
inter
alia
held that holding only the Minister of Police liable would ignore the
important role played by the prosecutor and the Court when
taking
decisions on the further detention of the detained persons. The SCA
was split on the matter.
[2]
The
majority held that a further unlawful act by the police would be
required after the unlawful arrest to hold the Minister of
Police
liable for the whole period of detention. As no such further unlawful
conduct was established, the Minister of Police was
not liable for
detention after the second court appearance as the false confession
was not the legal cause for the detention beyond
the second court
appearance.
[3]
[11]
Mahlangu
dealt
with a case where the police knew that the confession was obtained
under torture, and withheld the information from the prosecutor.
The
police knew that there was no evidence for a successful prosecution.
The Constitutional Court in paragraph 42 formulated the
issue as a
matter of legal causation. The court asked if public policy would
dictate that the inclusion of the false confession
in the docket,
accompanied by the silence of the police about it throughout the
detention of the appellants, “
is
too
remote for delictual liability to attach to the police and,
vicariously, to the Minister beyond the second court appearance
”
.
The court held that public policy does not dictate that such damages
would be too remote to recover from the Minister of Police.
“
The
unlawful continued concealment by the police of the fact that the
confession was obtained illegally therefore provides the applicants
with a basis for holding the Minister delictually liable for the full
detention period
”
(paragraph
45). The court further held that the applicants’ failure to
apply for bail did not constitute “
an
intervening act breaking the chain of legal causation
”
(paragraph 48).
[12]
The
difference between
Mahlangu
and
the case before me is that the police knew that the confession was
false. In the case before me, I made no finding that the
police knew
that the statement in opposing bail (that there was a pending case
against the respondent for having had escaped from
custody), was
false. It is common cause that the statement was untruthful, an
incorrect rendition of the contents of the police
records. The false
statement by the police meant that the bail hearing could only have
had one result, and the mere fact of a court
appearance was no reason
not to hold the police liable for the whole period of detention.
[13]
In
my view, my judgment is in accordance with both
Mahlangu
and
De
Klerk.
I
dealt with the real issue, legal causation, identified in both
judgments as the issue post-appearance in court. I gave my reasons
why the damages are not too remote.
[14]
I
also disagree with the argument that I am obliged,
mero
motu
,
to apply an apportionment between the applicant and its co-defendant
(simply as result of the National Director of Public Prosecutions
being a co-defendant, sued in the alternative) in terms of
De
Klerk
.
That judgment in paragraph 85 makes it clear that the only
contemplated apportionment would be in terms of the Apportionment of
Damages Act 34 of 1956, an apportionment between joint wrongdoers.
[15]
The
respondent did what any plaintiff may do, he decided which claims to
pursue from amongst more than one possible cause of action.
The
respondent selected two claims, and pleaded them in the alternative
(unlawful arrest, alternatively malicious prosecution).
This is
entirely permissible. See Uniform Rule 10(3).
[4]
The
application for leave to appeal was argued as if these facts did not
exist.
[16]
Expanding
on the above, if one has regard to the particulars of claim, the
respondent first set out the pleaded facts from the date
of his
arrest to the date when the charges against him were withdrawn. He
thereafter pleaded that the officials involved in this
process acted
within the course and scope of their employment with the defendants.
Thereafter, the respondent pleaded why his arrest
and detention was
unlawful.
[17]
Importantly, the respondent, as he was
entitled to do, expressly picked the applicant as the principal
defendant. He later, in his
prayers sought relief (underlining added)
“
(a)
gainst
the First Defendant
alternatively
against the Second Defendant
alternatively
against the First and Second Defendants jointly and severally
…”
He thus expressly picked the
applicant as the principal defendant. He pursued the claim against
the National Director of Public
Prosecutions as a claim in the
alternative.
[18]
With respect, it is wrong for the applicant
to submit in its heads of argument that the respondent “…
has
chosen to plead his cause of action to include the Minister of Police
and National Director of Public Prosecuting Authority
”
without reflecting that the claims against them
were in the alternative.
[19]
The
respondent did pursue, in the alternative to the above claim for
unlawful arrest, a claim for malicious prosecution. The alternative
claim fell away when the main claim against the applicant succeeded.
I did not address the alternative claim, and had no need to
do so. I
said so in my judgment paragraph 33. The argument before me was that
I am obliged to find against the National Director
of Public
Prosecutions, or to exonerate it. Such a submission is contrary to
the pleadings and with respect, legal principle. A
court need not
make academic findings.
[20]
It
does not detract from the above that as part of his pleadings, the
respondent also pleaded that “
the
police and the prosecution
”
had failed to take certain steps once he was brought to court after
his arrest. The respondent pleaded in paragraph 21.4
(it should have
been numbered paragraph 22, underlining added):
“
In
failing to bring the true facts to the attention of the court and
opposing bail the police
alternatively
the prosecution
alternatively
both the police and the prosecution acted wrongfully and unlawfully
.
”
[21]
This formulation is wide enough to cover a
second delict after the unlawful arrest, but is an unnecessary
complication as set out
in
Mahlangu
and
De Klerk
and
in the context of claims in the alternative. The importance of the
averment is that it covers the reasons why remoteness of
damages
would not come into play.
[22]
If
the applicant believed that part of the damages (if awarded) needed
to be paid by the National Director of Public Prosecutions,
it had
remedies available to it. The remedies are expressly referred to in
De
Klerk
.
Paragraph 82-84 of that judgment accepts the trite proposition that
from amongst multiple wrongdoers, a plaintiff may select whom
to
proceed against. See too section 2(1) of the Apportionment of Damages
Act. Paragraph 85 of
De
Klerk
records that if the defendant seeks a contribution from another
person, the
Apportionment
of Damages Act
provides for the mechanism. That is trite too. That mechanism in this
case is set out in section 2(6) and 2(7) of the Apportionment
of
Damages Act, as referred to in
De
Klerk
.
That remedy the applicant has not sought to apply to date. The
submissions by the applicant, that the respondent is bound by its
pleadings, is correct. So too is the applicant bound by its
pleadings.
[23]
Instead
of seeking a contribution from a joint wrongdoer, one legal team
represented the defendants (suggesting no conflict between
them) and
the defendants delivered a joint plea without seeking an
apportionment.
[24]
It is further alleged that I made the
following error:
“
The
learned Judge further erred in his finding at paragraph 32 of the
judgment, that the plaintiff bore the onus to show legal causation
and succeeded
.”
[25]
That statement is not a fair summary of my
judgment, paragraphs 18-32, especially paragraphs 24, 25, 27-29, and
32. It was never
the applicant’s case before me that the
damages were too remote to be recovered.
The second theme: the
arrest was rational and lawful
[26]
I allegedly incorrectly found that the
investigating officer acted irrationally and thus unlawfully in
arresting the plaintiff.
There really are two grounds for the
submission:
[26.1]
The first is that I allegedly understood
the facts wrong. The applicant alleges that the complainant had
pointed the respondent
out as the man who was in her room, and the
complainant’s original statement (a statement that must have
guided the investigating
officer in his arrest), is not common cause;
[26.2]
The second is that I erred in applying the
rational test.
[27]
In addition to these two main issues,
several other points are taken, with no suggestion that the alleged
errors would have had
an impact on my finding that the investigating
officer acted irrationally and thus unlawfully in arresting the
plaintiff. I list
these points taken:
[27.1]
I allegedly erred in stating that the
complainant advised the investigating officer that she would not be
able to identify her assailant
on 17 May 2017, as she made the
statement on 6 May 2017. I made an error in recording the date, it
occurred on a third date, 8
May 2017. It is an immaterial error, as
the real issue is that the complainant advised the investigating
officer that she would
not be able to identify her assailant;
[27.2]
I allegedly erred in not referring to the
injuries found on the respondent’s hand as recorded on a J88
form (after his arrest).
It is with respect a non-issue, as the real
issue is that the investigating officer took no steps (on his
version) to compare the
respondent’s injuries with the injuries
the complainant described in her statement to the police. Had he done
so, he would
have found a disconnect, but that is not the issue in
testing the rationality of his earlier actions;
[27.3]
In his heads of argument, the applicant’s
counsel took issue with the date of the call when the complainant
called the investigating
officer to inform him that she had learnt
that the respondent had an injured hand. I recorded the date as 19
May 2017, the counsel
avers that it was 18 May 2017. I assume,
without having confirmed the fact, that I made an error. If so, it
would be an immaterial
error as the issue is that the call preceded
the arrest;
[27.4]
I recorded that the DNA evidence would
later exonerate the respondent. I address it here, as I am not
certain where the applicant
wishes to further the point and as the
chronology in the heads of argument suggests that I should do it
here. The point taken in
the application for leave was that “…
in
actual
fact, there are no DNA samples which were found and this was never
the evidence by any witness in the criminal trial
”
.
This is wrong. The evidence before the magistrate was that such
evidence was collected at the scene, and the investigating officer
testified that DNA evidence was collected. The point taken in
argument was that the DNA evidence did not state that the respondent
was
not
the perpetrator, only that the person’s blood that was found
was
not
identified as the respondent’s. Hence, it was argued, the
respondent was
not
exonerated afterwards. With respect, it is a non-issue.
[28]
Reverting to the main issues, the first was
that I allegedly understood the facts wrong. The first fact that I
allegedly understood
wrong, is that I erred in dealing with the
injuries that the suspect sustained when committing the crime for
which the plaintiff
was arrested as common cause. I did not err:
[28.1]
I based my findings on the injuries on the
witness statement by the complainant. That statement was common cause
and dealt with
in evidence. The witness statement was explicit that
the complainant bit the fingers of her assailant. On the evidence in
her statement,
she could only have referred to her assailant’s
fingers whom she experienced was trying to grab her tongue when she
bit them.
I still maintain that the injuries, known to the
investigating officer at the time of the arrest were common cause;
[28.2]
There has been no suggestion that the
complainant changed her version prior to the arrest to one where her
assailant did not have
his fingers in her mouth, or not only having
had his fingers in her mouth but also the rest of his hand (or other
parts of his
hand);
[28.3]
In my view, the more that the applicant now
seeks to distance itself from the witness statement by the
complainant, the more irrational
the arrest would become;
[28.4]
The investigating officer (on his version)
did not even consider the actual injuries (as later objectively shown
on the J88 form)
to determine if they accorded with the complainant’s
version and/or being in accordance with injuries caused by biting. It
is now known what the injuries were, and on which parts of the hand
they were. The investigating officer acted irrationally in
effecting
the arrest, and this is one reason for that finding, as set out in my
judgment paragraph 14-15. The evidence was right
before him, and he
ignored it (on his version); and
[28.5]
The applicant led no evidence about the
various injuries recorded on the J88 form on the respondent’s
hand, especially which
ones were of recent origin. It is of no
moment, as in considering the rationality of the arrest that had
already taken place, such
evidence (even if it had been in favour of
the applicant), would be irrelevant in assessing the rationality of
the arrest. The
investigating officer (on his version) did not even
look at the hand.
[29]
The second alleged factual error that I
made is that I recorded the evidence incorrectly that the complainant
only identified the
respondent as a person with an injury to his hand
after she received this information. My summary of the evidence was
in accordance
with the common cause fact that she earlier had told
the investigating officer that she would be unable to identify her
attacker.
[30]
I made no error in my summary of the
evidence. The only witness was the investigating officer who
testified through an interpreter.
Much of the evidence below is
hearsay evidence, but it is the only evidence that the applicant
placed before the court to justify
the arrest and detention of the
respondent:
[30.1]
The investigating officer testified that
when he and the complainant were on their way to the respondent’s
house, she told
him that her attacker had shielded his face during
the assault;
[30.2]
During
his evidence-in-chief, the investigating officer said that when they
arrived at the respondent’s house, the complainant
identified
him and said “
this
was the suspect
”
.
She identified him by having regard to his bandaged left hand. The
investigating officer was asked by the defendants’ counsel
if
the complainant said that the respondent was the person who was in
her house, or “
what
was she saying exactly
”
.
The initial answer to those questions was that she said this was the
person who was in my house. i.e. the respondent. This was
however not
the end of the matter, as the witness was then asked an obvious
question, how could she have known that he was the
person who was in
her house as the perpetrator’s face was covered with a
balaclava.
[5]
The
answer was that she was told by other people that the person with the
features that she mentioned (described to them) is the
respondent.
What these features were, were not examined in evidence-in-chief. (In
context, none had been described in the complainant’s
statement, who could not clearly see her attacker. “Features”
could mean no more than a reference to an injury). It
is wrong to
ignore the explanation given (and the remainder of the evidence) and
to argue that the complainant pointed out the
respondent as the man
who had attacked her in her room;
[30.3]
A little bit later the investigating
officer testified, still in evidence-in-chief, that upon the
respondent having been pointed
out, he had to arrest the respondent
as his features where those described by the complainant. No evidence
was led that she had
described any features to him. What these
alleged features were, was again not examined in evidence-in-chief.
It is a subtle change
to the version that unidentified persons
identified the respondent from the description of the complainant;
[30.4]
Later, the investigating officer testified,
still in evidence-in-chief, that he opposed the bail application as
the police were
awaiting the fingerprint results to see if there were
other (criminal) cases outstanding against the respondent, and as the
case
was for serious charges of housebreaking and attempted rape. He
hoped that they had a strong case, as the respondent was previously
charged with housebreaking. He made no mention of placing value on
the pointing out as the reason for opposing bail;
[30.5]
Cross-examination then commenced. Under
cross-examination, the investigating officer was first asked to
address the complainant’s
original statement dated 6 May 2017.
The statement reflected that the assailant was an unknown person,
wearing a cap and with his
face half-covered with a polo neck piece
of clothing. In the struggle, he put his fingers in her mouth as if
to pull out her tongue,
and she bit his fingers. He did not respond
to state that the complainant changed her version, or that he had no
knowledge of her
statement at the time of arrest;
[30.6]
The investigating officer was thereafter
asked to read from the investigating diary, the entry dated 8 May
2017, where the complainant
advised the investigating officer that
she could not identify the suspect if she were to see him again. He
did not respond to state
that the complainant changed her version;
[30.7]
After being asked to deal with the
discrepancies in the time of arrest in the official documents, the
place of arrest in the plea,
and his evidence about place and the
time of the arrest, it was put to him that he recorded that the
respondent had no visible
injuries. His response was that the
respondent had a bandage around his hand. He did not look at the
injury, but asked what had
injured the respondent “
on
the fingers
”;
[30.8]
Thereafter, he was asked to explain what he
meant by other people who identified the respondent. The
investigating officer testified
that the complainant called him and
said that she had an idea of who had attacked her. He asked her about
her statement that her
attacker’s face was covered. The
complainant told him that she had told other people what had happened
to her. Those people
said to her that the respondent had such
injuries. The evidence also was that this was a comment not by a
group of people, but
by a single, unidentified male person. The
conflict was not clarified. The investigating officer did not
interview the person or
persons, before or after the arrest. Thus,
according to the complainant, she was told that the respondent had
injuries to his hand.
He did not look at the respondent’s
injuries when he arrested him;
[30.9]
He followed up the results of the
fingerprint analysis on 24 December 2017. He asked the complainant if
she knew the person whose
fingerprints were found in her room. He
was surprised when the complainant said that she did not know that
person, but that
she knew it was the respondent who was in her room.
He was surprised as it conflicted with her earlier version that she
would not
be able to identify the perpetrator. He thus always knew
that she had not pointed out the respondent as the man who was in her
room.
[31]
I shortened the recordal of the evidence in
the original judgment, but my summary is correct. I made no error.
The positive averment
by the applicant that the complainant pointed
out the respondent as the person who was in her room, is incorrect
and contrary to
the evidence.
[32]
The last issue is that I allegedly
misunderstood the law and/or applied it incorrectly in finding that
the arrest of the respondent
was irrational. Three matters were
raised:
[32.1]
The applicant’s criticism of my
judgment as one where I allegedly misunderstood the test in
evaluating the rationality of
the arrest by apparently conflating
that test and the test to obtain a conviction (in a criminal trial)
wherein the standard of
proof is beyond reasonable doubt. I did not
make such an error;
[32.2]
The applicant contends that I erred in
comparing the facts in the present case with the facts in
Minister
of Safety and Security and Another v Swart
2012
(2) SACR 226
(SCA). I addressed the rationality test in my judgment
paragraphs 11-14, and 16. I referred to case authority. As part of my
judgment,
I referred to
Swart
where the SCA found that it was irrational to arrest a suspected
drunk driver on the facts of that case. The facts in that case
included an arrest after a motorcar collision not involving another
vehicle, and where someone, who appeared to be the driver,
smelled of
alcohol. The SCA held that such an arrest was irrational. I did not
err in referring to
Swart
;
[32.3]
It is alleged that my finding that the
applicant failed to discharge the onus to show that the respondent’s
arrest was lawful,
was
“
not
supported by any evidence
”
.
I made the only finding a court could have made on the evidence.
The
third theme: the affidavit by the investigating officer in opposing
bail was incorrectly dealt with
[33]
The first point is that I allegedly erred
in finding
“
that
the police lied about the record of SAP69
”
.
I made no such finding. The second point is that
“
the
case of escape from lawful custody appears in the record
”
.
It does not. I dealt with this in my judgment in paragraph 20. The
third point is that
“
it
was not the plaintiff's case that the police misled the Court with an
intention to unlawfully keep the plaintiff in custody
”
.
It was very much the plaintiff’s case that the police, in
failing to bring the true facts to the attention of the court
and
opposing bail acted wrongfully and unlawfully. The addition
of
“
with
an intention to unlawfully keep the plaintiff in custody”
has been introduced by the applicant. It did not
form part of my findings, or the case of the respondent. The fourth
point is that
“
the
investigating officer reasonably relied on a report that appeared on
the Crime Administration System and informed the Magistrate
in good
faith of what was contained in the record
”
.
The report does not bear out this version. I dealt with this in my
judgment in paragraph 20.
[34]
The investigating officer was
cross-examined on the opposition to the granting of bail, and his
affidavit used therein. He declared
that there was a pending
Krugersdorp case against the respondent for escaping from custody.
The investigating officer made no enquiries
about the entry on the
so-called profile upon which he relied. The profile reflected under
its status that the entry was cancelled,
there was no such pending
case. The investigating officer conceded to this in
cross-examination. That the statement is false, is
irrefutably clear
from the evidence. It is immaterial to the question if the court had
been provided with correct information to
determine the application
for bail if the investigating officer was merely negligent in reading
the report on which his affidavit
was based, or if he acted
intentionally. The line of re-examination was whether errors in the
so-called profile were common, but
reliability did not address the
fact that there was no current case for escaping from custody, as set
out in his affidavit opposing
bail.
[35]
The fifth point is that the magistrate
could have had reasons not mentioned by him for refusing bail. The
fact is he refused bail
based on the false affidavit. I dealt with
this in my judgment in paragraph 20-22. The sixth point is that the
false affidavit
was not expressly pleaded. That is true, in that it
was a general statement made that the police failed to bring the true
facts
to the attention of the court in opposing bail, but the matter
was fully canvassed in the evidence and the affidavit was addressed
in re-examination.
The fourth theme:
damages were incorrectly awarded
[36]
The last issue in any appeal would be if I
correctly calculated the damages that I awarded. The issues raised in
the application
for leave to appeal were:
[36.1]
I allegedly erred in accepting the
plaintiff’s evidence about his loss of income. The statement
that
“
no
evidence was led in respect of these loss of earnings
”
is contrary to the facts of the matter. I dealt
with the evidence presented about the loss of income by the
respondent in detail
in my judgment in paragraphs 5.4 and 55;
[36.2]
The general damages I awarded are
“
excessive
and startlingly disproportionate to awards made in similar cases
”
.
This contention I address next.
[37]
Having provided me with
not
one
comparable case in argument, having
read my judgment referring to several such comparable cases
in
paragraphs 56-70.11, the applicant persists to make the baseless
submission that the award for general damages “
is
excessive and startlingly disproportionate to awards made in similar
cases
”
. I dealt with this
aspect comprehensively (with no assistance from the applicant) and
the applicant takes no issue with a single
finding I made. I awarded
R600 000.00 as at 24 January 2018 in case of about eight-and-half
months of detention. The Constitutional
Court in
Mahlangu
(a judgment that became available after
mine), awarded R550 000.00 to the first appellant (who was tortured)
and R500 000.00 to
the second appellant in a case with a comparable
period of unlawful detention. The appellants were released from
custody on 10
February 2006. The court Constitutional Court
awarded interest from the date of the High Court decision, 26
September 2014.
If the damages were awarded as at 2014, my award is
in a similar amount to the amount awarded by the Constitutional
Court.
Conclusion
[38]
In my view, the application for leave to
appeal, has to fail. In my view, it is premised on incorrect
recordals of fact and incorrect
submissions on law, and there is no
measure of certainty that another court will differ from my judgment.
[39]
Costs should follow the result.
[40]
Accordingly, I make the following order:
1.
The application for leave to appeal is
dismissed with costs.
DP de Villiers AJ
Heard
on:
21 May 2021
Delivered
on:
24 June 2021 by uploading on CaseLines
On
behalf of the Applicant:
Adv M Mhambi
Instructed
by
State Attorney
On
behalf of the Respondent:
Mr L Naidoo
Loagan Naidoo
Attorney
[1]
“
Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that the
appeal would have a
reasonable prospect of success”.
[2]
Mahlangu
and Another v Minister of Police
[2020] 2 All SA 656 (SCA).
[3]
I
pause to mention that the respondent relied on this judgment before
me. I referred to it in
paragraph 31 of my judgment. I
was, at stage, bound by the majority decision.
[4]
“
Several
defendants may be sued in one action either jointly, jointly and
severally, separately
or
in the
alternative
,
whenever the question arising between them or any of them and the
plaintiff or any of the
plaintiffs depends upon the
determination of substantially the same question of law or fact
which, if
such defendants were sued separately, would
arise in each separate action.” (underlining added).
[5]
Nothing
turns on the formulation, as the evidence was that the assailant’s
face was partially covered.