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[2010] ZAGPPHC 274
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Kwenda and Others v Minister of Safety and Security (3667/09) [2010] ZAGPPHC 274 (25 June 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 3667/09
DATE:25/06/2010
In
the matter between:
MOSES
NDUNA
KWENDA
......................................................................................
First
Plaintiff
SIFISO
FOSHIM
MASEKO
.................................................................................
Second
Plaintiff
SIPHO
GIFT
KHUMALO
.........................................................................................
Third
Plaintiff
and
MINISTER
OF SAFETY AND
SECURITY
.................................................................
Defendant
JUDGMENT
MURPHY
J
1.
The three plaintiffs instituted action against the defendant alleging
that they were unlawfully arrested on Saturday 11 October
2008 by
Inspector Khoza, a member of the South African Police Service
("SAPS"), at Silverton police station in Pretoria.
After
their arrest, the plaintiffs were detained from approximately 17h15
on 11 October 2008 until approximately 12h15 on Monday
13 October
2008, when they were released from the police cells at the Pretoria
magistrate's court. They further alleged that at
all relevant times
Inspector Khoza was acting within the course and scope of his
employment as a member of the SAPS.
2.
The plaintiffs allege that as a result of the wrongful actions of the
members of the SAPS they each suffered damages in the amount
of R226
226,38. made up of three distinct amounts, namely R180 000 for loss
of freedom due to wrongful arrest and detention, R45
000 for
impairment of their dignity due to the wrongful arrest and detention
and being accused of having committed theft from a
motor vehicle, and
special damages in the amount of R1226.38. being the reasonable and
necessary fees of the plaintiffs' attorney
to protect each plaintiffs
rights during the period of their detention.
3.
The defendant pleaded that the arrests were made on the basis of
certain information regarding theft out of the motor vehicle
of a
complainant. The information led the police to the home of the first
plaintiff where the arrests were effected. The defendant
accordingly
denied that the arrests were unlawful and that he was liable for any
damages in that regard.
4.
Shortly before the trial commenced, counsel for the defendant
conceded the merits of the matter and informed the court that the
only matter that remained to be decided was the quantum of the
damages of the three plaintiffs. The defendant further placed on
record that it had conceded that the special damages claimed by the
respective plaintiffs, being the reasonable and necessary fees
of the
plaintiffs, were also conceded.
5.
In the light of those concessions, the facts are common cause. The
arrest took place on 11 October 2008 at approximately 17h00
at the
Silverton police station when the three plaintiffs were arrested
without a warrant by Inspector Khoza who was acting in
the scope and
course of his employment. The plaintiffs were detained initially at
Silverton police station from approximately 17h15
on Saturday 11
October 2008 until approximately 08h00 on Monday 13 October 2008 when
they were taken to court. They were detained
in the police cells at
the Pretoria magistrate's court until approximately 12h15 on that
day. The charges against them were dropped.
It is further common
cause that the detention was initially at the instance of Inspector
Khoza. but various other members of the
SAPS whose names and ranks
are unknown to the plaintiffs, were also acting in the course and
scope of their employment, and facilitated
the arrest and detention.
6.
Although nothing much turns on the point, various reasons were given
for the arrest. The first plaintiff testified that on Saturday
11
October 2008. Constable Golele initially told the plaintiffs at the
first plaintiff's home that they had come there in response
to a
report that there had been fighting at the first plaintiffs home.
Later it was suggested that they were arrested for hi-jacking.
The
plaintiffs' attorney at some point was informed that they were
arrested for armed robbery. However, while in detention the
plaintiffs were given a written notice explaining their
constitutional rights, upon which it was written that they had been
arrested
on a charge of theft out of a motor vehicle.
7.
In view of the concessions that the arrest and detention were indeed
unlawful, all that remained in issue at the trial was the
appropriate
amount to compensate the plaintiffs for the wrong that was done to
them; in other words, the quantum of damages. The
concession in
relation to the special damages narrowed the matter further to
require determination only of the amount of general
damages to be
awarded in respect of the loss of freedom and the impairment of the
plaintiffs' dignity due to the arrest and accusation
of having
committed theft from a motor vehicle.
8.
All three plaintiffs testified, as well as the plaintiffs' attorney
and the employer of the second and third plaintiffs. The
defendant
closed his case without calling any witnesses. Much of the evidence
is not contested, and any differences that do exist
between the
parties relate more to the interpretation and weight to be attached
to certain aspects of the evidence.
9.
The first plaintiff is employed as a tracing agent by a firm of
attorneys in Pretoria. At the time of the arrest he was 45 years
of
age. He is reasonably well educated, having matriculated and
completed artisan courses qualifying him as a plumber. He worked
in
various positions as a plumber in the past and at one point ran his
own business. He has been employed as a tracing agent since
2005. He
is married and is the father of three children. He has never been
arrested before for any reason and thus the arrest that
took place on
11 October 2008 was his first unpleasant brush with the law in this
fashion. His employer. Mr de Klerk, the managing
director of
attorneys De Klerk & Marais Inc., testified that the first
plaintiff was a trustworthy worker upon whom he placed
much reliance
and about whom he had never received any complaint. The first
plaintiff testified that the arrest and accusations
humiliated him
and that he was affected significantly by the fact that his arrest
occurred in the presence of his 11 year old granddaughter
who lives
with him. He testified that the members of the SAPS who were in
attendance at the time of the arrest ignored his attempts
to explain
to them that none of the plaintiffs had been involved in any alleged
crime.
10.
The second plaintiff is 28 years old. He achieved grade 10 at school
and since 2005 has been working as a fitter fitting tyres
on rims and
as a wheel balancing technician at a company called Supa Quick in
Montana Crossing in Pretoria. He is not married and
lives with the
third plaintiff, to whom he is related. He has been previously
arrested on charges of the theft a video cassette
recorder. He
explained that the owner of the video cassette recorder had owed him
money and was aware of the fact that he took
it when he refused to
pay him. He remained in custody for a period of 5 months and was then
cautioned and discharged. With regard
to the arrest on 11 October
2008, he testified that he too felt humiliated by the arrest,
detention and accusations leveled against
him. Because of the arrest
and detention he was absent from work on Monday 13 October 2008. He
was thus required to account for
his absence. He fears that this has
led to a lack of trust between himself and his employer. Contrary to
this, the second plaintiff's
employer, Mr Horn, testified that he
regarded the employees (the second and third plaintiff) as
trustworthy and good workers. Nevertheless,
the second plaintiff
remains concerned about perceptions.
11.
The third plaintiff was 33 years of age at the time of the arrest. He
has grade 7 education. Since February 1997, he has been
in stable
continuous employment, working with Supa Quick, initially at
Centurion as a fitter and alignment technician, but he too
later
transferred to Montana Crossing. He is married and has nine minor
children, six of whom currently live him and his wife.
He too has
previously been arrested. This arrest arose as a result of a false
complaint by a woman with whom he had had a love
affair, who alleged
that he had abducted her 9 year old child. Nothing came of this
allegation and he was detained for only one
night and then released
without charge. He also testified that his arrest, detention and the
accusations made against him on 11
October 2008 caused him to feel
humiliated. He complained further that the police had ignored his
protestations of innocence. While
he was in custody he was permitted
to call his wife. On the night of his arrest his eight month old
daughter had a fever and this
weighed heavily on his mind because he
could not care for his child while his wife was required to work that
evening and again
the following day. He too was concerned about his
reputation at the workplace when he was required to account for his
absence.
12.
It is common cause that the plaintiffs' loss of freedom lasted from
their arrest at about 17h00 on 11 October 2008 to their
release at
12M5 on 13 October 2008, being approximately 44 hours.
13.
All three plaintiffs testified that they were detained in the same
cell at the Silverton police station in conditions that were
less
than satisfactory. The undisputed evidence establishes that each
plaintiff only had a thin sponge on which to sleep on the
concrete
floor. The blankets with which they were issued were dirty, and in
one instance were stained with blood. Only one pillow
was made
available to them. There was a toilet situated in the cell which was
extremely dirty and the stench from this toilet filled
the cell with
a distinctly unpleasant odour. During the night the plaintiffs were
unable to gain access to any water, because the
only source of water
was situated outside the cell, to which they had access prior to
their being locked up. The police did not
provide them with any food
from the time of their arrest until approximately 11 h00 on Sunday
morning, that is the following day.
They testified that they received
food from their attorney when he visited them at about 09h00 on the
Sunday morning. The police
gave them a cup of tea and dry bread at
about 11 h00 on Sunday. There is some ambiguity in the evidence
about the provision of
food, in that the plaintiffs' attorney seemed
to suggest at one stage in his evidence that he had also provided the
plaintiffs
with food on the Saturday evening. Whatever the case, it
is common cause at least that the police provided food to the
plaintiffs
for the first time about 18 hours after they had been
arrested. During the night they were held at the Silverton police
station
two other detainees were put into the cell with them. While
detained at the magistrate's court in Pretoria they were held
together
with about 40 to 50 people. They all testified that they
were extremely fearful in that situation because many of those who
were
detained with them appeared to be hardened criminals. Whether
that is in fact so is difficult to say. Though it is perhaps
reasonable
to surmise that certainly some of their fellow detainees
at the court cells would have been experienced criminals and
accordingly
their subjective fears were understandable in the
circumstances. No food was provided to them at all by the police on
Monday 13
October 2008.
14.
In terms of section 35(2)(e) of the Constitution everyone who is
detained has the right to conditions of detention that are
consistent
with human dignity, including at least exercise and the provision, at
state expense, of adequate accommodation, nutrition,
reading material
and medical treatment. Furthermore, section 12(1)(e) of the
Constitution provides that everyone has the right
to freedom and
security of the person, which includes the right not to be treated or
punished in a cruel, inhuman or degrading
way. The failure to provide
awaiting trial prisoners with clean blankets, appropriate bedding and
hygienic toilet facilities is
unquestionably a denial of their rights
to dignity as protected by the Constitution. There can be no
justification for holding
prisoners in the conditions in which the
plaintiffs were held. All that is required to ensure that detainees
have appropriate bedding
and hygienic ablution and toilet facilities
is proper management. The demand for additional resources would be
minimal. The conduct
of the defendant, through its servants, who
omitted to provide the appropriate means of dignity, is an
unjustifiable infringement
of the rights of the plaintiffs as
detainees to adequate accommodation and nutrition.
15.
The infringement of the plaintiffs' constitutional rights to dignity
was not the only infringement. Mr de Klerk, the plaintiffs'
attorney,
tried unsuccessfully to secure the release of the plaintiffs from
detention. Once he received instructions, he contacted
the
investigating officer and arranged with him to meet at the Silverton
police station at 10h00 on Sunday morning, 12 October
2008, with a
view to having the plaintiffs released from detention on their own
recognisances or on police bail. The investigating
officer did not
keep the appointment. When Mr de Klerk attempted to contact him on
his cell phone, as he had been able to do the
previous evening, the
investigating officer had switched his cell phone off. Mr de Klerk
testified that before leaving the police
station, frustrated in his
efforts, he gave his business card to the police officers on duty and
requested the investigating officer
to contact him.
16.
Not long after Mr de Klerk had left the Silverton police station
without securing the release of the plaintiffs, the investigating
officer arrived at the police cells, and despite the plaintiffs
having informed him that they wished to consult with and have their
lawyer in attendance, the investigating officer took statements from
the plaintiffs in the absence of their attorney at 12h55,
13h55 and
14h31 respectively. These statements were admitted into evidence as
exhibits B13, B22 and B32. The conduct of the investigating
officer
resulted in the detention of the plaintiffs being prolonged and the
frustration of the possibility of an earlier release
on bail.
The
investigating officer, knowing full well that Mr de Klerk was the
plaintiffs' attorney, after not honouring an arrangement with
him,
and no doubt aware that he had earlier been present, went ahead and
interviewed the plaintiffs in violation of their constitutional
rights.
17.
In terms of section 35(1 )(f) of the Constitution everyone who is
arrested for allegedly committing an offence has the right
to be
released from detention if the interests of justice permit, subject
to reasonable conditions. Section 35(2)(b) of the Constitution
provides that anyone who is detained has the right to choose, and to
consult with, a legal practitioner, and to be informed of
this right
promptly. This provision should be read in conjunction with section
35(1) which provides that everyone who is arrested
for allegedly
committing an offence has the right to remain silent and not to be
compelled to make a statement that could be used
in evidence against
him. Legitimate inferences may be drawn from the limited evidence
that the investigating officer paid little
heed to the underlying
rationale of these rights and was not concerned that he might
infringe them. While normally the police have
48 hours to bring an
accused before court, where the evidence is notably insubstantial,
and the offence not serious, the obligation
on the authorities is to
at least weigh rationally and judiciously the possibility of
releasing an accused person on police bail
or their own
recognisances. In terms of
section 59A
of the
Criminal Procedure Act
51 of 1977
an authorised prosecutor may, in respect of the offences
referred to in schedule 7 of the Act, and in consultation with the
police
official charged with the investigation, authorise the release
of an accused on bail. Theft of an amount of less than R20 000 is
a
schedule 7 offence. The idea behind this section is that in less
serious offences the police should deprive accused persons of
their
liberty only as a last resort. Accordingly, the investigating officer
acting in consultation with an authorised prosecutor
could indeed
have released the plaintiffs at an earlier stage. At the very least
he had a duty to entertain any representations
by the plaintiffs'
attorney in that regard. By failing to honour his arrangement to meet
with the plaintiffs' attorney, and his
unconstitutional interrogation
of the plaintiffs, the investigating officer was in breach of his
duty and thus further infringed
the rights to dignity of the
plaintiffs.
18.
As I indicated earlier, the sole issue for determination is the
amount to be awarded for general damages for the injuries suffered
by
the plaintiffs arising out of their loss of freedom and the
impairment of their dignity. The courts have given ample direction
on
the correct approach to be followed. In Protea Assurance Co Ltd vs
Lamb
1971 (1) SA 530
(A) at 534H - 535A, Potgieter JA made the
following observation regarding general damages:
"It
is settled law that the trial judge has a large discretion to award
what he in the circumstances considers to be a fair
and adequate
compensation to the injured party for the sequelae of his injuries."
In
Minister of Safety and Security v Seymour
2006 (6) SA 320
(SCA) at
325B, Nugent JA added the following important rider as a guiding
principle in the exercise of the discretion. He said:
"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 that
that."
Dealing
specifically with damages for unlawful arrest and detention, Nugent
JA continued (at 326E) as follows:
"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 discernable
pattern other than that our courts are not
extravagant in
compensating the oss. It needs also to be kept in mind when making
such awards that there are many legitimate calls
on the public purse
to ensure that other rights that are no less important also receive
protection."
19.
In reaching my conclusion on an appropriate amount to be awarded in
this instance, I have had regard to the following cases:
Minister of
Safety and Security v Seymour (supra); Louw and Another v Minister of
Safety and Security and Others
2006 (2) SACR 178
(T); Gellman v
Minister of Safety and Security
[2007] ZAGPHC 269
;
2008 (1) SACR 446
(W); Olivier v
Minister of Safety and Security and Another
[2008] ZAGPHC 50
;
2008 (2) SACR 387
(W);
Ramphal v Minister of Safety and Security
2009 (1) SACR 211
(E);
Minister of Safety and Security v Tyulu
2009 (5) SA 85
(SCA); and
Thandane v Minister of Law and Order
1991 (1) SA 702
(E). These
judgments confirm what Nugent JA said in Seymour, namely that the
awards reflect no discernable pattern and indicate
that our courts
are not extravagant in compensating the loss occasioned by unlawful
arrest and detention. The factors that usually
have some bearing are:
the age of the plaintiff, whether or not the arrest was for an
improper motive; whether the plaintiff was
manhandled or arrested in
a humiliating, degrading or public manner; the duration of the
detention; and whether the plaintiff was
compromised in his dignity
further by reason of him occupying an important office or position.
20.
It is obvious from the evidence that all of the plaintiffs suffered
humiliation by reason of the arrest in front of the first
plaintiff's
grandchild and subsequently at their places of employment when they
had to account for their absence. The plaintiffs
are in reasonable
good health and it cannot be said that the detention, despite the
appalling conditions, compromised their health
or physical well-being
in any way. No doubt, the humiliation and appalling conditions of the
detention did have a negative emotional
impact that may possibly
endure. Nevertheless I have the impression that the plaintiffs are
men of the world and will not be too
deleteriously affected at a
psychological level. What is however an important consideration in
the present matter is that they
were held in conditions and subjected
to a period of detention and interrogation that unjustifiably
infringed their constitutional
rights. Counsel for the defendant has
urged me to keep in consideration though that the plaintiffs were
granted an opportunity
to make phone calls to their family members
and attorney, were detained in the same cell and not subjected to any
physical or positive
mistreatment beyond the omissions to which I
have already referred. The probabilities are also that the SAPS might
not have provided
food because food had been made available from
other sources. I am not sure that the latter point sufficiently
excuses the conduct
of the police. Whether food is brought in from
the outside or not, arrested persons have a right to be provided with
nutrition
during their period of detention and the evidence, as I
understand it. indicates that they were not offered food until 18
hours
after they had been detained, and then only dry bread and tea.
21.
Looking at the quantum awarded in previous recent decisions, the best
that can be said is that the amounts awarded range from
between R12
000 and R90 000. I am unable to find any case in which an amount as
much as R225 000. as sought by each plaintiff,
has ever been awarded.
22.
Bearing all these circumstances in mind, in my view an appropriate
award of general damages in this case would be the sum of
R70 000 for
each plaintiff.
23.
The plaintiffs' claims against the defendant are for unliquidated
damages. Mr Prinsloo SC, who appeared for the plaintiffs,
requested
me to make an order in respect of interest effective from the date of
the service of summons until the date of payment.
In terms of the
Prescribed Rate of Interest Act 55 of 1975
it is permissible to
recover mora interest on amounts awarded by a court which, but for
such award, were unliquidated. Once judgment
is granted such interest
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 -
section 2A(2)(a).
The word "demand" is
defined in the Act to mean a written demand setting out the
creditor's claim in such a manner as
to enable the debtor reasonably
to assess the quantum thereof. Mr Prinsloo submitted that it was
possible for the defendant in
this case to reasonably assess the
quantum once summons was issued. I agree. Accordingly. I shall order
interest to run as requested.
23.
In the premises. I issue the following orders:
i)
The defendant is ordered to pay each plaintiff the amount of R71
226,38, together with interest on such amount at the rate of
15.5
percent per annum a tempore morae from the date of service of summons
to the date of payment.
ii)
The defendant is ordered to pay the plaintiff's costs.
JR
MURPHY
JUDGE
OF THE HIGH COURT
Date
Heard: 4, 7 and 8 June 2010
For
the Applicant: Adv JJS Prinsloo SC, Johannesburg
Instructed
By: De Klerk & Marais Inc. Pretoria
For
the Respondent: Adv TB Hutamo, Pretoria
Instructed
By: State Attorney, Pretoria