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[2010] ZAGPPHC 643
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Kwenda and Others v Minister of Safety and Security (3667.09) [2010] ZAGPPHC 643 (25 June 2010)

IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE NO: 3667/09
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 17h 15 on 11 October 2008
until approximately 12h 15 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 plaintiffs
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 12h15 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 hOO 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
hOO 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
us
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 loss 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);
Ramphai
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%
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 plaintiffs 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