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[2014] ZASCA 174
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Minister of Safety and Security v Van Der Walt and Another (1037/13) [2014] ZASCA 174; 2015 (2) SACR 1 (SCA) (19 November 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
No: 1037/13
In
the matter between:
THE
MINISTER OF SAFETY AND
SECURITY
...............................................
First Appellant
THE
MINISTER OF
JUSTICE
.........................................................................
Second Appellant
INSPECTOR
LEGANO
PHOSHOKO
................................................................
Third
Appellant
and
JEREMIA
JANSE VAN DER
WALT
...............................................................
First Respondent
ANDRIES
DANIEL VAN
WYK
.....................................................................
Second
Respondent
Neutral
citation:
Minister of Safety and
Security v Van der Walt (1037/13)
[2014]
ZASCA 174
(19 November 2014)
Coram:
Mpati P, Tshiqi, Theron, Swain JJA, and Mocumie
AJA
Heard:
09 September 2014
Delivered:
19 November 2014
Summary
:
Delict – unlawful detention – vicarious liability –
Minister of Safety and Security liable for negligent conduct
of a
police officer – magistrate not liable in delict for negligent
conduct while performing judicial function – Minister
of
Justice consequently not vicariously liable for the negligent conduct
of magistrate – malice – magistrates only
liable
personally for malicious conduct – malicious conduct not proved
and magistrate not sued personally for alleged malicious
conduct.
ORDER
On
appeal from
South Gauteng High Court,
Johannesburg (Van Der Merwe AJ sitting as court of first instance):
1
The appeal by the first appellant is upheld in part.
1.1 The order of
the high court in respect of the first appellant is set aside and
substituted as follows:
‘
(a)
The first defendant is ordered to make payment to the first
plaintiff in an amount of R120 000.
(b) The first
defendant is ordered to make payment to the second plaintiff in an
amount of R120 000.
(c) The first
defendant is ordered to pay interest on the amounts in (a) and (b) of
the order at the rate of 15.5 per cent per
annum from the date of
demand to the date of payment.
(d)
The first defendant is ordered to pay the plaintiffs’ costs of
suit together with interest thereon at the prescribed rate
of 15.5
per cent per annum from 14 days after taxation to date of payment.
Such costs are to include the costs of two counsel where
employed.’
2.
The first appellant is ordered to pay the costs of the appeal
including the costs consequent upon employment of two counsel where
employed.
3.
The appeal by the second appellant is upheld. The order of the High
Court is set aside and each party is ordered to pay their
own costs
in respect of the second appellant’s appeal.
JUDGMENT
Tshiqi
JA (Mpati P, Theron and Swain JJA, and Mocumie AJA): concurring
[1]
This appeal flows from the arrest of the two respondents and their
detention from the afternoon of 26 May 2004 to the morning
of 1 June
2004, when they were ultimately released on bail. The arrest and
detention took place at the Brackendowns Police Station,
Alberton.
The respondents were there in response to a telephone call made by
the branch commander to the second respondent
(‘Van Wyk’)
on 25 May 2004 informing him that a warrant had been issued for his
arrest and that of the first respondent
(‘Van der Walt’).
When they arrived at the police station the branch commander referred
them to the third appellant
(‘Phoshoko’), a detective
inspector, who was the investigating officer in the case. Phoshoko
confirmed that there was
a warrant for their arrest and showed them
two dockets, which he allowed them to read in his office.
[2]
The complaints in both dockets stemmed from a sale agreement
concluded between Van Wyk and one Kanti James Mochitele (‘Mochitele’)
in terms of which the former purchased a fixed property (’the
disputed property’) from the latter. Van Wyk had taken
occupation of the disputed property. Mochitele apparently purported
to cancel the sale agreement but Van Wyk disputed the validity
of the
cancellation. What followed was a series of criminal and civil
disputes between them.
[3]
The first docket pertained to an alleged theft of a toilet which
allegedly occurred on 29 November 2003 at the disputed property
which
was still occupied by Van Wyk and his family. On 28 November 2003,
Mochitele, accompanied by a group of approximately fifteen
people in
mini busses and a big truck, arrived at the premises without
notifying Van Wyk, to conduct what turned out to be ancestral
celebrations. Nothing untoward happened during the celebrations but
by the following day a hired portable toilet, left at the premises
overnight by Mochitele, had disappeared. He reported it stolen at the
Brackendowns police station. In his initial statement to
the police
Mochitele did not identify any suspect. However, on 3 December 2003,
he identified Van Wyk as a suspect. As a result
of that information
the case docket, which had initially been endorsed ‘ongespoor’,
was re–opened and assigned
to Phoshoko for further
investigation. That incident gave rise to a charge of theft against
the respondents but no warrant of arrest
was issued in relation to
that incident.
[4]
The warrant that was issued arose from the complaints contained in
the second docket which related to a separate incident that
allegedly
occurred on 7 December 2003, at a house in which Mochitele and his
family were residing at the time. Earlier that day,
Mochitele visited
the disputed property and, without consulting Van Wyk, dropped off
goods comprising of tyres, machinery and drums
at the property and
left. Van Wyk was angered by Mochitele’s conduct and
arranged with Van der Walt, who owned a bakkie,
to load the goods
onto his bakkie. They then went and dumped the goods at the property
occupied by Mochitele. During that process
an altercation ensued
between Van Wyk and Van der Walt on the one hand, and Mochitele and
his family on the other hand. There are
different versions of what
occurred during the incident but as a result of the altercation
Mochitele, his wife and brother laid
charges of assault with intent
to do grievous bodily harm, two charges of unlawful possession of
firearm and a charge of pointing
a firearm against Van Wyk and Van
der Walt.
[5]
After the respondents had inspected the dockets, Phoshoko charged and
arrested them in terms of the warrants. He detained them
in the
police cells and later transported them in a police van to the
holding cells of the Alberton Magistrate’s Court. Later
that
afternoon they briefly appeared before a magistrate and were remanded
in custody. The charge sheet placed before the magistrate
during that
appearance reflected that Van Wyk was facing a charge of assault
which allegedly occurred on 7 December 2003 and a
charge of theft
which allegedly occurred on a different date, (29 November 2003). Van
der Walt only faced a charge of pointing
a firearm that allegedly
occurred on 7 December 2003.
[6]
The respondents testified that what occurred in court during their
first appearance before they were remanded in custody was
unusual and
took them by surprise. After their case was called, the magistrate
adjourned the proceedings abruptly and left the
courtroom followed by
the prosecutor. They saw the magistrate talking to the prosecutor for
a while outside the court. The magistrate
then came back into court
followed by the prosecutor and wrote something on the papers before
her. She then informed them that
one of the charges they were facing
was armed robbery, a schedule 6 offence, which required them to bring
a formal bail application.
It is uncontroverted that the charge of
armed robbery was not reflected in the charge sheet placed before the
magistrate, but was
reflected in a form titled: ‘Annexure “A”
- Bail proceedings in terms of Section 60 of Act 51 of 1977’,
which was also placed before the magistrate during that first
appearance. The form was, according to the Ms Edith Zinn
(‘Zinn’)
who was the prosecutor at all times during the
respondents’ appearances, normally utilised by magistrates in
the Alberton
Magistrate’s Court as a check-list to guide them
during bail proceedings. It is common cause that the form was indeed
altered.
A perusal of it shows that the third charge: ‘possession
of an unlicensed firearm’, which was initially written there,
and which appeared in the charge sheet, was scratched out and
replaced with a charge of armed robbery. The alteration is initialled
and a signature appears at bottom of the form.
[7]
Zinn testified that she did not know who made the alteration nor did
she know who signed the form. The respondents testified
that they
thought it was the magistrate because of the discussion that took
place between her and Zinn during the adjournment,
shortly before she
informed them that they were facing a charge of armed robbery.
According to Van Wyk, they tried on two occasions
to explain to the
magistrate that there was no substance to this charge and that the
charges of assault and theft that he, Van
Wyk, was facing arose from
incidents that occurred on different dates and that Van der Walt was
only facing a charge of pointing
a firearm. The magistrate, however,
would not listen to him and there was no intervention by either Zinn
or Phoshoko. Instead,
the magistrate said they should discuss the
issue with the senior prosecutor who, however, was not in court at
that time and therefore
could not assist them. Zinn testified that
she did not have any recollection of the adjournment nor the
discussion she was alleged
to have had with the magistrate. Her
evidence was mainly generic and not helpful in clarifying what
occurred in court during that
first appearance by the respondents.
Phoshoko also testified. He simply denied that an adjournment took
place but shed no light
on the course of events relayed by the
respondents. Both he and Zinn, however, agreed that the charge of
armed robbery should not
have been written on Annexure ‘A’.
The magistrate was not called to testify.
[8]
After their appearance in court the respondents instructed an
attorney, Mr Culhane, to arrange for a bail application on their
behalf. On 27 May 2004 Culhane attempted to arrange a bail hearing
but did not succeed to do so and the respondents were not brought
before court. On 28 May 2004 Culhane succeeded in ensuring that they
were brought before court. On that day Phoshoko was not in
court but
Zinn was present. Culhane testified that during the appearance on 28
May 2004 he made a fervent representation to the
magistrate that
there was no basis for the charge of armed robbery. He described the
exchange between him and the magistrate as
follows:
‘
Now
I can remember very clearly on 28 May explaining to the magistrate
that this is not a Schedule 6 offence, explaining to her
that these
are two incidents which took place on two separate days and together
they do not constitute a Schedule 6 offence. M’
Lord, I wish to
make this very clear because I can remember on the day that I in fact
afterwards reflected on the fact that I had
never addressed a
magistrate in my entire life as I could say sternfully as I did on
that day. In fact I remember that at one point
I said to the
magistrate, “Do you not understand the point I am making to
you?” I never addressed a magistrate or a
judge like that, but
I was frustrated at the fact that she simply would not hear my
argument that this was not a Schedule 6 offence
that I ended up
uttering those words and that is also not recorded here madam.’
Regrettably
bail was still refused. On 1 June 2004 the respondents again appeared
before court. On this occasion their application
for bail was
unopposed and bail was set at an amount of R5 000 each. They managed
to pay the amount and were released the same
day.
[9]
Aggrieved by their arrest and detention from 26 May 2004 until their
release on bail on 1 June 2004, the respondents instituted
action
against Mochitele, the Minister of Safety and Security, the Minister
of Justice and Phoshoko in his personal capacity. The
basis of the
claim against Phoshoko was that he had a legal duty, as the
investigating officer in the case, to place all relevant
information
before the magistrate but had negligently failed in that duty. As a
result of that failure the magistrate refused to
grant bail to the
respondents during their first appearance and their further
appearances on 27 and 28 May 2004. The Minister of
Safety and
Security was sued on the basis that as Phoshoko’s employer, he
was vicariously liable for his employee’s
wrongful conduct. As
against the Minister of Justice, it was alleged that Zinn, who was
also present in court at all material times,
also failed, like
Phoshoko, to place such relevant information before the magistrate.
Had they performed their legal duties, as
required, the magistrate
would probably have released the respondents on bail. The factual
basis for the claim against both ministers
was that Phoshoko and
Zinn, who were at all times present in court during the first
appearance, failed to inform the magistrate
during that appearance,
and also did nothing after that appearance, to clarify to the
magistrate that there was no basis for the
charge of armed robbery.
And that had they done so, there would have been no basis for the
magistrate to say that the respondents
were facing a schedule 6
offence and the respondents would probably have been released on
bail.
[10]
Regarding the conduct of the magistrate, it was alleged that she had
made the amendments in Annexure ‘A’, that
in doing so she
acted maliciously and that it was as a result of the alteration,
which reflected a schedule 6 offence that the
respondents were denied
bail. It was also alleged that the error was brought to the attention
of the magistrate by the respondents
during their first appearance
and by their attorney on 28 May 2004, but that she negligently failed
to apply her mind to it. Despite
the allegation that the magistrate
was malicious, she was not sued in her personal capacity. The
respondents, however, sued the
Minister of Justice on the basis that
he was vicariously liable for the malicious, alternatively, negligent
conduct of the magistrate.
Mochitele was also sued on the basis that
he had laid false charges against the respondents and that it was as
a result of those
charges that they were arrested and detained.
[11]
The court a quo (Van der Merwe AJ) held that the detention of the
respondents was unlawful. It held Mochitele liable in his
personal
capacity and awarded damages against him. Mochitele is not pursuing
an appeal against the order. Regarding the claim arising
from the
alleged wrongful conduct of the prosecutor, the high court found that
the Minister of Justice ‘cannot be responsible
for decisions by
the National Prosecuting Authority…’. This finding is
not challenged by the respondents on appeal.
Regarding the conduct of
the magistrate, the high court found that it was the magistrate who
had interfered maliciously and intentionally
in the erroneous
formulation of the charge of armed robbery. And pertaining to the
liability of the Minister of Justice for the
wrongful conduct of the
magistrate the high court stated (para 52):
‘
Although
magistrates function independently and impartially (see
Van
Rooyen v The State
2002 (5) SA 246
(CC)), that does not detract from the fact that they are appointed by
and employed by the Minister of Justice… In carrying
out their
functions independently and impartially, they act within the course
and scope of their appointment and in accordance
with the basis on
which they were appointed. It follows that the Minister of Justice
remains in my view, as in the past, vicariously
liable for the
conduct of magistrates acting within the course and scope of their
employment…’.
In
the end the court made an order directing the Minister of Justice,
the Minister of Safety and Security and Phoshoko to make payment
jointly and severally to each of the respondents in an amount
of R250 000, plus interest at the rate of 15,5 % per annum
from
date of demand to date of payment. This appeal is with the leave of
that court. Phoshoko was not represented on appeal before
us.
[12]
The issues that arise for determination in this appeal are:
(a)
Whether the high court’s decision
that the detention of the respondents was unlawful was correct;
(b)
Whether the high court’s decision in
finding the Minister of Safety and Security liable for Phoshoko’s
negligent conduct
should be upheld;
(c)
Whether the Minister of Justice is
vicariously liable for wrongful conducts of magistrates committed
while discharging judicial
functions.
[13]
Before dealing with these issues it is necessary to deal with the
personal circumstances of the respondents at the time of
their
arrest, for it is uncontroverted that, but for the charge of armed
robbery that was inserted in Annexure ‘A’,
the
respondents were in all probability eligible for release on bail.
Both respondents were in the employ of Imperial Group as
risk
managers and had before then been in the employ of the South African
Police Services ‘SAPS’ for respective periods
of 14 and
16 years. At the time of their resignation they both held the rank of
captain. Their functions at Imperial entailed investigation
of
criminal conduct such as theft, armed robberies and truck hijackings.
In the course of their duties they were required to liaise
with
members of the SAPS in order to track and recover stolen property and
apprehend possible suspects. They had in the past worked
hand in hand
with some members of the SAPS from the Alberton Police Station,
including Phoshoko. Van der Walt was well known to
Phoshoko as a
former colleague in the SAPS and also at the time of their arrest as
an employee of Imperial.
Unlawful
Detention
[14]
There was no conceivable reason for the refusal by the magistrate to
release the respondents on bail. They remained in custody
because of
the groundless charge of armed robbery inserted in Annexure ‘A’
and the collective negligence of Phoshoko,
Zinn and the magistrate.
It follows that their detention for the whole period was unlawful.
The
claim against the Minister of Safety and Security
[15]
Phoshoko did not deny that he was present in court during the
respondents’ first court appearance. As an investigating
officer it can be inferred that he knew the contents of the docket.
It can also be inferred that, as he was present in court during
that
appearance, he heard the magistrate informing the respondents that
there was an additional charge of armed robbery. He failed
to ensure
that the correct information was placed before the magistrate that
there was no basis for this charge and thus failed
to do what was
expected of a reasonable investigating officer in his position.
[1]
He could have done so through Zinn who was present in court. The fact
that the magistrate ignored the respondents when they tried
to reason
with her did not relieve Phoshoko of his duty as an investigating
officer to do so. After the adjournment on 26 May 2004
he again
adopted a supine attitude. A reasonable police officer would have
followed up immediately after the first appearance and
thereafter
done whatever was reasonably necessary to rectify the situation,
including clarifying the position with Zinn, or the
head prosecutor,
or the magistrate. Had he made an effort after the first appearance
to keep abreast of developments in the matter,
he probably would have
been aware that the respondents were scheduled to appear in court for
a bail application on 27 and 28 May,
and ensured that he was present
to rectify the error. For all those reasons Phoshoko was negligent
and his negligence caused the
prolonged detention of the respondents
after their first appearance on the 26 May to 1 June 2004. It follows
that the high court’s
finding of liability against the Minister
of Safety and Security must stand.
The
claim against the Minister of Justice and Constitutional Development
[16]
In the light of the fact that there is no cross-appeal by the
respondents against the finding that the Minister of Justice
cannot
be held liable for the negligent conduct of the prosecutor, what
remains is the question whether the Minister is liable
for the
magistrate’s refusal to release the respondents on bail.
[17]
In the main the respondent’s claim arising out of the
magistrate’s conduct was that she maliciously altered the
charges to include the charge of armed robbery. It was further
alleged that she negligently failed to establish what the correct
charges were and ignored all attempts by the respondents and their
attorney to clarify the issue.
Malice
[18]
Was it proved that it was the magistrate who made the alteration to
Annexure “A”? If the answer to that question
is in the
affirmative there can be no doubt that malice has been established
for it is common cause that there was no basis for
the alteration.
The contention that it was the magistrate who made the alteration is
deduced from what the respondents perceived
to be unusual conduct
between the magistrate and Zinn during the adjournment. Although the
magistrate did not testify so as to
dispute the evidence of the
respondents, and Zinn did not have any specific recollection of what
happened during the respondents’
court appearance, the problem
with the evidence of the respondents is that it does not shed light
on what the magistrate and Zinn
discussed during the adjournment,
because they could not hear what was being said. Even if it is
accepted that the magistrate wrote
something after speaking to the
prosecutor it cannot be inferred from the respondents’ evidence
that she was making the controversial
alteration because the
respondents could not see what she was writing and on which document.
It follows that the decision of the
high court that the magistrate
interfered maliciously to alter the charges to include the charge of
armed robbery cannot stand.
Negligence
[19]
A finding that the magistrate did not act maliciously does not mean
that negligence has not been established on the part of
the
magistrate. Her negligence stems from the fact that when the error
was raised, she ignored it. On 26 May 2004, when the respondents
explained to her that there was no basis for the charge, she could
have asked Zinn to respond or give an explanation. She could
also
have adjourned and instructed the senior prosecutor to attend court
to give an explanation. Instead, she told the respondents
(knowing
that they were in detention and could not do so) to take it up with
the senior prosecutor. When the issue was again raised
by Culhane
during the next court appearance she simply ignored him in spite of
what he described as a passionate plea to her to
apply herself to the
issue. The information Culhane gave to her was in the charge sheet
that was placed before her. She could easily
have checked the charge
sheet or raised pertinent questions with Zinn. In ignoring the
respondents and their attorney the magistrate
was grossly negligent
and it was as a result of her failure to pay attention to the
concerns raised with her that led her to order
the continued
detention of the respondents.
Vicarious
liability of the Minister of Justice
[20]
Can the Minister of Justice and Constitutional Development be held
vicariously liable for the wrongful conduct of the magistrate?
In
holding the Minister of Justice vicariously liable for the wrongful
conduct of the magistrate the learned acting judge placed
reliance on
s (9)(1)(
a
)
of the Magistrate’s Courts Act, 32 of 1944, which provides that
magistrates are appointed by the Minister of Justice. The
high court
also relied upon
section 10
of the
Magistrates Act 90 of 1993
, which
provides that the Minister shall appoint magistrates in consultation
with the Magistrate’s Commission. It was the
finding that
magistrates are employed by the Minister of Justice that led the
learned acting judge to the conclusion that the Minister,
as an
employer, is ‘vicariously liable for the conduct of magistrates
acting within the course and scope of their employment’.
That
conclusion ignores the well-established principle that magistrates,
when they act in the course and scope of their judicial
functions,
enjoy, like all judicial officers, a status of judicial
independence.
[2]
This
status of judicial independence means that although magistrates may
remain state employees under their contracts of employment,
they
perform a judicial function and form part of the judicial branch of
government.
[3]
[21]
The question whether the Minister is vicariously liable for the
negligent conduct of a magistrate requires a consideration
of the
concept of judicial independence in the context of delictual
liability. There is ample authority to the effect that judicial
independence for judicial officers means that they are protected from
liability for their negligent conduct. Harms JA
in Telematrix
(Pty) Ltd v Advertising Standards Authority SA
2006 (1) SA 461
(SCA) para 14 stated:
‘…
there
is obviously a duty - even a legal duty - on a judicial officer to
adjudicate cases correctly and not to err negligently.
That does not
mean that a judicial officer who fails in
the duty, because of
negligence, acted wrongfully. Put in direct terms: can it be unlawful
[wrongful], in the sense that the wronged
party is entitled to
monetary compensation, for an incorrect judgment given negligently by
a judicial officer, whether in exercising
a discretion or making a
value judgment, assessing the facts or in finding, interpreting or
applying the appropriate legal principle?
Public or legal policy
considerations require that there should be no liability, ie, that
the potential defendant should be afforded
immunity against a damages
claim, even from third parties affected by the judgment.’
[22]
The approach in
Telematrix
accords with the following
statement by the Constitutional Court in
Le Roux and others v Dey
2011 (3) SA 274
(CC) para 122:
‘
In
the more recent past our courts have come to recognise, however, that
in the context of the law of delict:
(a)
the criterion of wrongfulness ultimately depends on a judicial
determination of whether — assuming all the other elements
of
delictual liability to be present — it would be reasonable to
impose liability on a defendant for the damages flowing
from specific
conduct; and
(b)
that the judicial determination of that reasonableness would in turn
depend on considerations of public and legal policy in accordance
with constitutional norms. Incidentally, to avoid confusion it should
be borne in mind that, what is meant by reasonableness in
the context
of wrongfulness has nothing to do with the reasonableness of the
defendant's conduct [which is part of the element
of negligence], but
it concerns the reasonableness of imposing liability on the defendant
for the harm resulting from that conduct.’
[4]
[23]
What those decisions mean, in sum, is that a magistrate is not
liable for his or her negligent conduct when performing his
or her
judicial functions, because for reasons of public and legal policy
his or her conduct is not regarded as wrongful. The fact
that the
magistrate is immune from liability for his or her negligent conduct
means there is no basis to hold any other party vicariously
liable
for such negligent conduct. That is so because vicarious liability is
in general terms defined as the strict liability of
one person for
the delict of another. What it means is that a person may be held
liable for the wrongful act or omission of another
even though the
former did not strictly engage in any wrongful conduct.
[5]
But, as liability is closely linked to the wrongful conduct of the
primary wrongdoer it is inconceivable that there could be vicarious
or secondary liability where there is no primary delictual liability.
[24]
This is in direct contrast with what happened in cases such as
Goldschagg v Minister van Polisie
1979
(3) SA 1284
(T);
De Welzen v Regering
van Kwa-Zulu en ‘n ander
1990 (2)
SA 915
(N); and
Minister of Safety and
Security v Kruger
2011 (1) SACR 529
(SCA). Those cases dealt with a provision in the Police Act which
exempted members of the SAPS from liability in certain circumstances.
The question that arose was whether in those circumstances the
Minister was also exempt from vicarious liability. It was held that
the Minister was not exempt. This conclusion rested squarely on the
interpretation that was given to the specific wording of the
statutory enactment. According to that interpretation the section did
not mean that the conduct of the member was not wrongful.
What the
section provided for, so it was held, was that in the circumstances
contemplated, the member
was exempt from
liability despite the fact that his or her conduct remained wrongful
(see
Kruger
para
18 and
De Welzen
923H-I).
The reason why the magistrate was not liable in
Telematrix
was that his or her conduct was not regarded as wrongful for public
or legal policy considerations. Consequently, because the
magistrate’s conduct is not regarded as wrongful in delict
vicarious liability cannot be imposed upon the Minister.
[25]
In the light of the finding that the magistrate did not act
maliciously, it is unnecessary to deal with the issue of whether
the
minister is vicariously liable for the malicious conduct of a
magistrate.
Conclusion
[26]
The Minister of Safety and Security is accordingly liable for the
negligent conduct of Phoshoko. The Minister of Justice is,
however,
not vicariously liable for the negligent conduct of the magistrate.
In the light of the finding of negligence on the part
of the
magistrate, a copy of this judgment will be made available to the
Magistrate’s Commission, as an entity responsible,
amongst
others, for disciplinary issues pertaining to magistrates for its
consideration.
Quantum
[27]
The high court made an award of R250 000 in favour of each of
the respondents. Ms Baloyi, for the appellants, submitted
that the
individual awards were inconsistent with those made by courts in
similar matters. She made reference to the case of
Minister
of Safety and Security v Seymour
[6]
where this court reduced an award in the amount of R500 000 and
substituted it with one of R90 000. In that case the
plaintiff
was a 63 year old farmer who was detained for a period of five days.
Whilst in prison he fell ill. A doctor who subsequently
examined him
diagnosed hypertension and angina and gave instructions that he
should b
e
taken to hospital. That was not done immediately and after he was
eventually hospitalised, it transpired that he also suffered
from
severe symptoms of post-traumatic stress and depression. In dealing
with the appropriate approach in awarding damages this
court said
[para 17]:
‘
The
assessment of awards of general damages with reference to awards made
in previous cases is fraught with difficulty. The facts
of a
particular case need to be looked at as a whole and few cases are
directly comparable. They are a useful guide to what other
courts
have considered to be appropriate but they have no higher value than
that…’.
In
para 20 the court continued:
‘
Money
can never be more than a crude
solatium
for the deprivation of what in truth can never be restored and there
is no empirical measure for the loss. The awards I have referred
to
reflect no discernible pattern other than that courts are not
extravagant in compensating the loss. It needs also to be kept
in
mind when making such awards that there are legitimate calls upon the
public purse to ensure that other rights that are no less
important
also receive protection.’
[28]
Recently, in
Woji
v The Minister of Police
[7]
this court awarded the plaintiff damages in the amount of R500 000.
In that case the plaintiff was arrested as a result of
mistaken
identity and imprisoned for a period of thirteen months. He was
placed in an overcrowded prison and was subjected to a
gang that
sodomised other prisoners. He was raped twice, and as a result
experienced difficulty in having sexual relations with
his
girlfriend. He also witnessed another prisoner being stabbed, which
made him fear for his life. He was allocated a single cell
after
eight months but was as a result isolated and lonely.
[29]
In this case the respondents are former police officers who both
held the rank of captain at the time of their resignation.
They
testified that they were subjected to appalling conditions and had to
endure the humiliation of being imprisoned by and in
front of their
former colleagues. On the first night they had to withstand the cold
cells as they were detained in winter and slept
on the cement floor
with only one blanket. As police officers who had arrested some of
the prison inmates they were concerned about
their safety. The
following day, after the unsuccessful attempt to bring a bail
application on their behalf, they slept in holding
cells at the
Alberton Police Station and upon their return to prison, they were
moved to a single cell. Van Wyk stated that for
a while after that
experience he could not sleep well. Van Der Walt stated that as a
result he suffered from influenza, lost weight
and developed kidney
complications which necessitated surgery to remove what turned out to
be kidney stones. No evidence was led
to dispute their testimony on
the prison conditions and their personal experiences. Due regard
being had to all of these factors
the award made by the high court is
disproportionate. An appropriate award, in my view, is an amount of
R120 000 for each
of the respondents.
Costs
[30]
In light of the fact that the Minister of Safety and Security has
been unsuccessful in the appeal, the respondents are accordingly
entitled to their costs. Although the Minister of Justice has been
successful, regard being had to all the facts, I am of the view
that
the Minister of Justice and the respondents should each pay their own
costs.
[31]
In the result I make the following order:
1 The appeal by the
first appellant is upheld in part.
1.1 The order of
the high court in respect of the first appellant is set aside and
substituted as follows:
‘
(a)
The first defendant is ordered to make payment to the first
plaintiff in an amount of R120 000.
(b) The first
defendant is ordered to make payment to the second plaintiff in an
amount of R120 000.
(c) The first
defendant is ordered to pay interest on the amounts in (a) and (b) of
the order at the rate of 15.5 per cent per
annum from the date of
demand to the date of payment.
(d)
The first defendant is ordered to pay the plaintiffs’ costs of
suit together with interest thereon at the prescribed rate
of 15.5
per cent per annum from 14 days after taxation to date of payment.
Such costs are to include the costs of two counsel where
employed.’
2.
The first appellant is ordered to pay the costs of the appeal
including the costs consequent upon employment of two counsel where
employed.
3. The appeal by the
second appellant is upheld. The order of the high court is set aside
and each party is ordered to pay their
own costs in respect of the
second appellant’s appeal.
_________________________
Z
L L TSHIQI
JUDGE
OF APPEAL
APPEARANCES
For
Appellants: Advocate M.S Baloyi
Instructed by:
State Attorney,
Johannesburg
State
Attorney, Bloemfontein
For
Respondents: Advocate RS Willis (
with him A
Mooij)
Instructed by:
Gerald Cullhane
Attorneys, Roodepoort
Phatshoane
Henney Attorneys, Bloemfontein
[1]
Minister
of Safety and Security & another v Carmichele
2004
(3) SA 305
(SCA) paras 49-50.
[2]
Schierhout
v Union Government (Minister of Justice)
1919
AD 30
at 42-43;
Van
Rooyen & others v The State & others (General Council of the
Bar of South Africa Intervening)
[2001] ZACC 8
;
2002
(2) SACR 222
(CC) para 265.
[3]
President
of the Republic of South Africa & others v Reinecke
2014
(3) SA 205
(SCA) para 7.
[4]
See
also
F
v Minister of Safety and Security and others
2012
(1) SA 536
(CC) paras 117-124;
Trustees,
Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd
2006
(3) SA 138
(SCA) para 11.
[5]
F
v Minister of Safety and Security
(supra)
para 40.
[6]
Minister
of Safety and Security v Seymour
2006
(6) SA 320
(SCA) para 19.
[7]
Woji
v Minister of Police
(92/2012)
[2014] ZASCA 108
(11 September 2014).