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[2010] ZAGPPHC 528
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Louw and Another v Minister of Safety and Security (32494/2009) [2010] ZAGPPHC 528 (15 April 2010)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case Number:
32494/2009
Date: 15 April 2010
In the matter
between:
JACOBUS COENRAAD
LOUW
....................................................................................................
First
Plaintiff
BARRY PIETER
GRIFFIN
........................................................................................................
Second
Plaintiff
and
THE MINISTER OF
SAFETY AND
SECURITY
..............................................................................
Defendant
JUDGMENT
M M RIP AJ
1
.
In the present
matter, the First and Second Plaintiffs whom appeared to share a
residence have instituted action against the Minister
of Safety and
Security for damages of R200 000,00 each as a result of certain
unlawful actions taken by members of the South African
Police
Services.
2.
I was not satisfied
at the time of hearing the matter that the Plaintiffs should be
entitled to the sum of R200 000,00 in damages
and wished to consider
this aspect further. Unfortunately, the exigencies of practice have
overtaken me and I apologise for the
delay in delivering this
judgment.
3.
The facts are as
follows:-
3.1 The Plaintiffs
were at their residence on 19 December 2006, the one apparently
working on the computer and the other one reading
a book. It was
approximately 9 o'clock in the morning.
3.2 The next moment
they noticed that two individuals had entered the house and were
walking in the house. Such individuals later
turned out to be one De
Jager, a member of the South African Police Service Dog Unit and a
certain Alta, apparently a Police Reservist.
It is unclear how they
gained access to the house, but I assume that they simply walked in
through one of the open doors.
3.3 Both of the
Plaintiffs state they were shocked and traumatised by the sudden
appearance of people in their home, since at first
they thought they
may be the subject of a robbery. In fact it appears that De Jager was
armed. Neither De Jager nor the aforementioned
Alta were in police
uniform and appear to have been dressed in civilian clothes.
3.4 When confronted
De Jager indicated that he was a member of the South African Police
Services Dog Unit and that he was busy investigating
allegations that
the Plaintiffs were in possession of drugs. The type of drug has not
been identified. After a search of the premises,
which included
requiring the Plaintiffs to empty their pockets, no drugs were
apparently found and no further steps were taken
by the South African
Police Services, De Jager or the aforementioned Alta. No prosecution
followed and no charges were ever laid.
3.5 It appears
furthermore that there must have been a police vehicle at the
premises, since the Plaintiffs mentioned that there
was a police dog
in a vehicle, but that the dog was not used as part of the search. I
must say that I find it strange that if there
is a search for drugs
on a premises and a police dog is available to assist in such search
that the dog would not have been used.
3.6 What is clear is
that when De Jager was asked to identify himself, he refused to do so
and simply stated that he is a member
of the South African Police
Services Dog Unit. He indicated, in response to a question, that he
did not have a search warrant.
When De Jager was asked by the
Plaintiffs to be allowed to call their lawyer, he apparently raised
his voice and shouted at the
Plaintiffs that it would not assist
them. It is clear that the Plaintiffs appeared intimated and helpless
in the face of the sudden
appearance of this armed man in their house
whom clearly adopted an aggressive and intimidating attitude towards
them. It appears
that rather than have a confrontation they simply
acceded to the wishes of De Jager and his assistant, the
aforementioned Alta.
3.7 What is clear is
that the actions of the aforementioned De Jager as assisted by Alta
are clearly unlawful and constitute a serious
breach of the
constitutional rights of the Plaintiffs in a number of material
respects. The Plaintiffs are clearly entitled to
their right to
privacy, dignity and fair and proper administrative process. All of
these rights are enshrined in the Constitution
of the Republic of
South Africa. What this means is that should the South African Police
Services or any of its members require
to perform their duties that
such duties must be performed lawfully and in accordance with the
laws of the Republic of South Africa.
To simply walk unannounced,
armed and in private clothes into a persons home does not constitute
such a lawful action.
4.
I accordingly have
no hesitation in finding that the actions of the aforementioned De
Jager and Alta are unlawful, negate the Plaintiffs
rights to the
constitutional issues I have mentioned above and on that basis the
Defendant, namely the Minister of Safety and Security,
on the basis
of vicarious liability is liable for the actions of his servants.
5.
The issue that I
have some difficulty with is to quantify what the damages in the
present circumstances should constitute. Counsel
who appeared before
me could not refer me to a precedent similar to the facts that are
presently before me.
In
the matter of
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC)
the
Constitutional Court found that there is no impediment for the
granting of damages on the basis of the breach of a constitutional
right.
7.
In
the matter of
Ramakulukusha
v Commander. Venda National Force
1989
(2)
SA 813
VSC
the
Plaintiff in that matter was unlawfully detained for eight days. In
respect of the arrest and unlawful detention of the Plaintiff
in that
matter, the Court in 1989 awarded an amount of R20 000,00, apparently
equal to approximately R80 000,00 today.
8
.
In
the matter of
Minister
of Safety and Security v Seymour
2006 (6) SA 320
(SCA)
,
the Appeal Court reduced an order of the High Court from R500 000,00
to R90 000,00 for the unlawful arrest and detention of the
Plaintiff
for a period of five days. I was referred to a number of other
matters that do not appear to be directly relevant.
9.
On the basis of the
authorities referred to above and trying to be analogous and due to
the fact that it is clear that:-
9.1 The Plaintiffs:-
9.1.1 received a
tremendous shock at the unlawful and unannounced invasion of their
home;
9.1.2 were
intimidated by the Police Officers involved;
9.1.3 experienced
feelings of shock and trauma at what had occurred;
9.1.4 had their
dignity injured and impacted upon as a result of the manner in which
they were treated and the unlawful invasion
of their home.
I find that an
amount of R40 000,00 each would be a suitable amount in the
circumstances.
10.
As a result, I make
the following order:-
11.1 The Defendant
is ordered to pay each of the Plaintiffs R40 000,00;
11.2 Interest on the
aforementioned amount shall run at the rate of 15.5% per annum from
date of this judgment to payment;
11.3 Costs of suit.
MERVYN M RIP AJ
ACTING JUDGE OF
THE HIGH COURT
PRETORIA
13 APRIL 2010