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[2010] ZAGPPHC 183
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Mokonyane v Minister of Safety & Security and Another (33976/08) [2010] ZAGPPHC 183 (5 November 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 33976/08
DATE:
05/11/2010
In
the matter between:
JOHANNES
NTSHOTO MOKONYANE
............................................
Plaintiff
and
MINISTER
OF SAFETY &
SECURITY
...............................................
First
Defendant
and
INSPECTOR
CHIDI
..............................................................................
Second
Defendant
JUDGMENT
MAKGOKA,
J:
[1]
This judgment concerns the assessment of damages as a result of the
wrongful arrest and the subsequent detention of the plaintiff
by
second defendant and other police officers, acting within their
course and scope of their employment with the first defendant.
The
plaintiff was detained for approximately
47
hours.
[2]
The merits of the action were settled before the commencement of the
trial, in terms of which the defendants conceded the wrongfulness
of
the plaintiff's arrest and subsequent detention. Accordingly I am
seized only with the determination of an appropriate amount
of
damages flowing from such arrest and detention.
[3]
Only the plaintiff testified. His evidence is briefly as follows: on
16 January 2008 at approximately 09h00 he was arrested
at his place
of employment by the police on suspicion of theft of his employer's
trucks. His arrest was witnessed by some of his
co-workers, during
which he was hand-cuffed and escorted to a marked police van.
[4]
On
their way to the police station, the police stopped at a nearby
filling station where the second defendant told petrol attendants
that he had arrested a thug -referring to the plaintiff, who was then
in the rear of a police van. He was clearly visible to the
public as
the flaps of the police van were open.
[5]
He was later detained at the Sinoville police station from
approximately 11h00, where he was held in a 6x4 meters cell, with
no
chair, bench or blanket - just bare concrete floor. He was denied the
right to contact his family. At approximately 16h00 he
was taken to
an office block by the police where he was interrogated, during which
he was hand-cuffed. The interrogation lasted
for about 1.1/2
hours.
Thereafter he was taken back to the same cell at Sinoville police
station, where he was detained with four more other people.
[2]
The merits of the action were settled before the commencement of the
trial, in terms of which the defendants conceded the wrongfulness
of
the plaintiff's arrest and subsequent detention. Accordingly I am
seized only with the determination of an appropriate amount
of
damages flowing from such arrest and detention.
[3]
Only the plaintiff testified. His evidence is briefly as follows: on
16 January 2008 he was arrested at his place of employment
by the
police on suspicion of theft of his employer's trucks. His arrest was
witnessed by some of his co-workers, during which
he was hand-cuffed
and escorted to a marked police van.
[4]
On their way to the police station, the police stopped at a nearby
filling station where the second defendant told petrol attendants
that he had arrested a thug - referring to the plaintiff, who was
then in the rear of a police van. He was clearly visible to the
public as the flaps of the police van were open.
[5]
He was later detained at the Sinoville police station from
approximately 11h00, where he was held in a 6x4 meters cell, with
no
chair, bench or blanket - just bare concrete floor. He was denied the
right to contact his family. At approximately 16h00 he
was taken to
an office block by the police where he was interrogated, during which
he was hand-cuffed. The interrogation lasted
for about 1.1/2
hours.
Thereafter he was taken back to the same cell at Sinoville police
station, where he was detained with four more other people.
Later
during the evening three more detainees were brought into the cell.
They all spend the night in that bare cell. They were
not offered
food or accorded ablution facilities.
[6]
In the early hours of 17 January 2008 at approximately 01h00, the
eight of them were placed in a police van and transported
to
Kameeldrift police station. There was not enough space in the police
van and they were crammed.
[7]
They arrived at Kameeldfrift police station at approximately 02h00
where he was kept in a cell with no lights. There was a thin
floor
sponge and scruffy blankets. The toilets were all stinking. For the
rest of the early morning he could not sleep as he feared
for his
life. He did not have a shower that day as there was no hot water.
They were served brown bread with jam and tea for breakfast.
He was
released on 18 January 2008 at 9h06, without being charged. The
following day, 19 January 2008, he was dismissed from his
employment.
[8]
He was 30 years old at that time, and unmarried. He was however, in a
steady relationship, from which a minor child was born.
He resided at
his parental house with his father and three siblings. He was
employed as a driver and had been employed as such
for a year.
[9]
The proper approach to assessment of damages in matters such as the
present includes evaluation of the personal circumstances
of the
plaintiff, the circumstances around the arrest, as well as the nature
and duration of the detention. See
Ngcobo
v Minister of Police
1978
(4) SA 930
(D) at 935B-F.
[10]
Although the determination of an appropriate amount of damages is
largely a matter of discretion, some guidance can be obtained
by
having regard to previous awards made in comparable cases, which
afford a useful guide in this regard. The process of comparison
is
not a meticulous examination of awards, and should not interfere upon
the court's general discretion:
Protea
Assurance v Lamb
1971
(1) SA 530
(A) at 535B-536A and
Minister
of Safety and Security v
Seymour
2006 (6) SA 320
(SCA) at 325 B-F.
[11]
The purpose of an award for general damages in the context of a
matter such as the present, is to compensate a claimant for
deprivation of personal liberty and freedom and the attendant mental
anguish and distress. In
Minister
of Safety and Security v Tyulu
2009
(5) SA 85
(SCA) Bosielo AJA (as he then was) emphasised that the
primary purpose is "not to enrich the claimant but to offer him
or
her some much-needed solatium for his or her injured feelings"
(paragraph 26).
[12]
Mr Seabi, attorney for the plaintiff, referred me to the following
cases:
Gellman
v Minister of Safety and Security
2008
(1) SACR 466
(W);
Seymour
and
Tyulu
(supra),
as well as an unreported judgment of this court in
Liebenberg
v Minister of Safety and Security and Another
(GNP
case no 18352/2008, 18 June 2009).
[13]
In
Gellman,
an
attorney, who was also a businessman, was unlawfully arrested and
paraded in handcuffs in before his employees. He was later
detained
for over 48 hours, during which he was held in a police cell, where
he was seen by a number of his fellow attorneys, and
was also
deprived of access to his heart medication. He was awarded R80 000 in
damages.
[14]
In
Seymour,
a
63 year old small scale farmer who suffered from high-blood pressure
was unlawfully arrested and detained for five days. He fell
ill the
morning following the arrest, experiencing chest pains. The High
Court awarded him general damages of R500 000. On appeal,
the Supreme
Court of Appeal reduced the amount to R90 000.
[15]
In arriving at the amount of damages, the SCA restated the general
principles applicable in assessment of general damages and
considered
past awards as well as the devaluation of currency. The court found
that throughout his detention Seymour suffered no
degradation beyond
that that inherent in being arrested and detained.
[16]
In
Tyulu,
a
magistrate was awarded R280 000 in the High Court for unlawful arrest
and detention which lasted 15 minutes. On appeal the Full
Court
overturned the High Court's finding on the merits of the second
arrest and detention but confirmed the judgment on the merits
of the
first arrest, and reduced the amount of damages to R50 000. On
further appeal, the SCA reduced the amount to R15 000, after
taking
into account the relatively short duration of the detention, the
appellant's standing in the community and the manner in
which he was
arrested.
[17]
In
Liebenberg,
Legodi
J awarded R20 000 for the wrongful arrest and detention which lasted
approximately 3.
1/4
hours.
Unfortunately the learned Judge did not consider any previous
comparable cases or personal circumstances of the plaintiff,
nor
state which factors weighed most heavily with him in arriving at the
amount of general damages.
[18]
Mr
Mohlamonyane,
on
the other hand, referred me to two unreported cases decided in the
Eastern Cape and Free State, respectively, in
Minister
of Safety and Security v Du Plessis
(ECD
case no CA 28/09, 2 July 2009), the High Court on appeal from a
magistrate court confirmed an award of R15 000 for a period
of
16
½
hours
detention.
[19]
In
Minister
of
Safety and Security v Moloi,
(FSB
case no A262/2005, 28 February 2008) the magistrate court had awarded
the respondent damages of R100 000 for unlawful arrest
and detention
which lasted approximately 24 hours. On appeal, the High Court
reduced the award to R15 000. The High Court noted,
among others,
that the respondent gave no evidence as to how he experienced the
unlawful arrest and detention, other than saying
he felt very sad.
[20]
I find the award in
Du
Plessis
very
conservative in light of the views expressed in
Seymour.
In
Moloi,
the
court noted that the respondent gave no evidence as to how he
experienced the unlawful arrest and detention, which the court
considered among other factors in reducing the amount of damages to
R15 000. For these reasons I do not find these cases particularly
helpful. Mr
Mohlamonyane,
correctly
in my view, did not seriously contend that
I
should
consider an amount in the region of those awarded in these two cases.
[21]
Although the duration of the detention in the present case was
relatively short, I find the circumstances of the plaintiff's
arrest
and the conditions under which he was detained most unacceptable. The
arrest appears to have been based on the flimsiest
of reasons. The
continued detention, especially after the interrogation could not
link the plaintiff to the crime, points to a
total disregard by the
police for the right to personal liberty.
[22]
I come to this conclusion for the reason that the plaintiff was
arrested on the basis of an affidavit deposed to by an employee
or
manager of the plaintiff's then employer. In that affidavit, there
was no reference whatsoever to the plaintiff or his possible
involvement in the theft of his employer's trucks. He was
interrogated on the same day and despite that he was not linked with
any crime, he was not released forthwith.
[23]
The publicity around his arrest must have caused the plaintiff
considerable embarrassment and anguish as he was arrested and
paraded
in handcuffs before his co-workers. He was thereafter detained in a
crowded and bare cell. He was denied the right to contact
his family;
he was deprived of food for approximately 24 hours; he was
transported in a crammed police van during ungodly hours;
at the
Kameeldrift police station he was kept in a filthy and dark cell.
In the end, it is clear that the plaintiff suffered
considerable
indignity and deprivation during his detention. He said that much in
his evidence.
[24]
He later lost his job as a direct result of the arrest. No evidence
was led as to whether his dismissal was challenged or whether
the
plaintiff found new employment. However, the very fact of an
individual losing employment as a result of wrongful arrest and
detention, must weigh heavily in consideration of damages.
[25]
Mr Seabi strongly urged me to award R80 000, a similar amount to that
in
Gellman,
contending
that the facts of the two cases are similar. Mr
Mohlamonyane,
on
the other hand, submitted that taking all factors into account, an
amount of R60 000 should be awarded.
[26]
Of all the cases mentioned, I find the facts in
Gellman
to
be, in broadest terms, closely similar to the present case. Having
said that, there are important distinguishing factors between
the two
cases. First, Gellman is a practising attorney and businessman. It is
trite that one's social standing is a factor to be
considered as part
of the personal circumstances in assessing damages in matters of this
nature. The plaintiff in the present matter
was a driver.
[27]
Second, and flowing from the first, Gellman was arrested in the
presence of his employees, whereas the plaintiff was arrested
in the
presence of his co-workers. Third, Gellman was seen by some of his
fellow attorneys while held in a police cell, i, whereas
there is no
evidence that beyond his arrest, the plaintiff was seen by anyone
known to him. On the above considerations I agree
with Mr
Mohlamonyane
that
Gellman
is
distinguishable on the facts, from the present case.
[28]
Having regard to the circumstances of the arrest, the duration of the
detention, the personal circumstances of the plaintiff,
the awards
made in previous comparable cases, I deem R70 000 to be a just and
fair amount of damages for the plaintiff. Costs should
follow the
cause. With regard to
mora
interest,
the proper date from which same should commence, is the date on which
the defendants received the plaintiff's notice in
terms of Act 40 of
2002. That date is not clear from the papers - only the date of
acknowledgment is reflected, which is 8 April
2008. I would therefore
order interest from the latter date.
[29]
The following order is therefore made:
1.
The defendants are ordered, jointly and severally, the one paying the
other to be absolved, to pay the plaintiff in the following
terms:
1.1
the
amount of R70 000;
1.2
interest
on the amount at 15.5 percent
p.a
from
8 April 2008 to date of payment;
1.3
costs
of the suit.
T
M MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
HEARD
:
5 OCTOBER 2010
JUDGMENT
DELIVERED
:
5 NOVEMBER 2010
FOR
THE PLAINTIFF
:
MR KP SEABI (ATTORNEY)
INSTRUCTED
BY
:
KB
SEABI ATTORNEYS,
PRETORIA
FOR
THE DEFENDANTS
:
ADV MD MOHLAMONYANE.
INSTRUCTED
BY
:
STATE
ATTORNEY,
PRETORIA