Ngamekam v Minister of Safety and Security (739/2007) [2009] ZAECPEHC 30 (26 June 2009)

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[2009] ZAECPEHC 30
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Ngamekam v Minister of Safety and Security (739/2007) [2009] ZAECPEHC 30 (26 June 2009)

FORM A
FILING SHEET FOR EASTERN CAPE
HIGH COURT, PORT ELIZABETH
PARTIES
:
Case
Number:
739/2007
High
Court:
Port
Elizabeth
DATE
HEARD:
5
June 2009; 8 June 2009 – 11 June 2009
DATE
DELIVERED:
26
June 2009
JUDGE(S):
D.
Chetty
LEGAL
REPRESENTATIVES –
Appearances:
for
the Applicant(s):
Adv
Mouton/Adv Ayerst
for
the Respondent(s):
Adv
Gqamana
Instructing
attorneys:
Applicant(s):
Mr
Swanepoel(C/O Ungerer Struwig Minnaar & Peo)
Respondent(s):
Mr
Swart (State Attorneys)
CASE
INFORMATION -
Nature
of proceedings
:
Action
for Damages
Topic:
Key
Words:
Delict
– Action for damages for assault, arrest and detention. Two
mutually destructive versions – Plaintiff’s version consistent

with objectively established facts – Quantum of damages –
Unprovoked, senseless attack on defenceless person – Quantum
assessed
at R307 039, 60, inclusive of psychological counselling
OF
INTEREST
IN THE HIGH COURT OF SOUTH ARFICA
(EASTERN CAPE – PORT ELIZABETH)
Case No: 739/2007
In the matter between:
APPOLINAIRE
NGAMEKAM
Plaintiff
And
MINISTER OF
SAFETY AND SECURITY
Defendant
Coram :
Chetty,
J
Dates Heard :
5
June 2009; 8 June 2009 – 11 June 2009
Date Delivered :
26
June 2009
Summary :
Delict
– Action for damages for assault, arrest and detention. Two
mutually destructive versions – Plaintiff’s version consistent

with objectively established facts – Quantum of damages –
Unprovoked, senseless attack on defenceless person – Quantum
assessed at R307 039, 60, inclusive of psychological counselling
______________________________________________________________
JUDGMENT
______________________________________________________________
CHETTY, J
[1] The plaintiff,
a former resident of Cameroon, sought refuge in this country
in
1999 as a result of political turmoil in his country of origin. An
electrician by profession and imbued with an entrepreneurial
spirit
he soon ventured into the television and electrical goods business.
His business prospered and in due course he diversified
acquiring a
restaurant and real estate in Cape Town and Port Elizabeth as part of
his business portfolio.
[2] During 2005 he
acquired South African citizenship and was issued with an identity
document and a passport. Although French speaking
he had learnt to
speak English albeit not very well. With the effluxion of time his
property interests expanded to the extent that
he owns various fixed
residential properties in Cape Town and Port Elizabeth. He is by all
accounts a relatively successful businessman
frequently commuting
between Cape Town and Port Elizabeth and it is his sojourn in this
city during January 2007 which has given
rise to this delictual
action.
[3] He claims
damages for an assault committed upon him by members of the South
African Police Services, acting in the course and
scope of their
employment and for being wrongfully and unlawfully arrested and
subsequently detained at the holding cells at the
Mount Road police
station. The defendant has defended the action placing both the
merits and quantum in dispute. At the commencement
of the hearing,
two bundles, received in evidence as exhibits “A” and “B”,
comprising documents relating to the merits
and quantum respectively,
were handed up from the bar, the parties being in agreement that it
be admitted without formal proof.
[4] The plaintiff’s
cause of action is, as adumbrated hereinbefore, founded in delict. In
his particulars of claim the plaintiff
alleges that at approximately
21h30 on Saturday, 20 January 2007 and the boarding point of a bus
company, SA Roadlink, at the Greenacres
shopping area, members of the
South African Police Services wrongfully and unlawfully assaulted
him, arrested him and thereafter
detained him in the holding cells of
the Mount road police station. In its plea the defendant, whilst
admitting the arrest and
subsequent detention, denied not only the
assault but moreover the unlawfulness of the plaintiff’s arrest and
detention. It pleaded
that Inspector
Westraadt
(Westraadt)
,
whom, it is common case was the arresting officer, sprayed the
plaintiff with pepper spray to thwart an impending assault upon
him
by the plaintiff and another male person after the latter persons had
been informed that they were being arrested on reasonable
suspicion
of being illegal immigrants and the plaintiff, moreover, for being
drunk and disorderly in a public place. It will be
gleaned from the
aforegoing that the parties’ versions are irreconcilable. The
testimony adduced during the trial followed suit
but there is however
a large body of evidence which stands uncontroverted and which has a
decisive bearing not only upon the assessment
of the two conflicting
versions but moreover on the probabilities.
The undisputed evidence
[5] At
approximately
09h30,
Sunday, 21 January 2007, the plaintiff was escorted from the Mount
Road police cells in Port Elizabeth by two police officials
to the
Provincial hospital. He had to be assisted to walk for he could not
do so of his own accord. He was placed in the rear
of the police van
and at the hospital once more physically assisted to alight before a
wheelchair was found and provided to him.
Initial radiographs taken
of his right leg revealed a fracture of the right ankle and the
plaintiff was then transported to the
Livingstone hospital for
treatment. Further radiographic examination of the right ankle
revealed an undisplaced fracture of the
distal fibula without talar
shift necessitating the application of a below the knee plaster of
paris cast. Clinical examination
revealed bilateral bruising of his
hips, a bloodstained mouth, bilateral subconjunctival haemorrhages
and moderate swelling of
the right ankle. According to the hospital
records the plaintiff complained of severe pain in the right leg,
right elbow and wrist.
Analgesics to alleviate his pain were supplied
and eye drops administered to control the irritation in his eyes.
Upon discharge
from the hospital later the afternoon he was provided
with crutches and escorted back to the police cells where he arrived
at approximately
3:00 p.m.
[6] During the
course of the plaintiff’s incarceration that Sunday afternoon a
policeman arrived and asked the plaintiff to produce
his identity
document. The plaintiff complied and handed over his identity
document. A few hours later the same police officer
returned and took
the plaintiff to an office where he informed him that he was free to
go but that his identity document would
be retained in order that its
authenticity be verified. At approximately 17h45 the plaintiff was
released from custody together
with his co-arrestee, Mr
Alain
Kameni (Alain)
,
who, it would now be convenient to introduce to the narrative. He
was, as recounted herein, detained together with the plaintiff
in the
police cells at Mount road police station. He is a young man
presently in his second year of study pursuing a degree in

information technology at Damelin College in Port Elizabeth. He is a
Cameroonian national, lawfully resident in this country having

entered our borders with a valid passport. His evidence concerning
the events in the cell is not in dispute. He recounted that
the
plaintiff, on admission to the cell, remained unconscious until the
early hours of the next day when he regained consciousness.
The
plaintiff was disorientated, totally oblivious of his surrounds and
with no recollection of the circumstances relating to his

incarceration. He complained of cold and
Alain
covered him with what passed for a blanket and provided him with
succour until he finally became orientated as to time and place.
He
recounted how the plaintiff was taken to hospital, his return
therefrom and their subsequent release from custody.
[7] As adumbrated
earlier, the circumstances under which the plaintiff and Alain came
to be incarcerated is in issue and the versions
of the plaintiff and
the defendant mutually destructive as regards those events which
occurred after the arrival of
Westraadt
at what I shall, for the sake of convenience, refer to as the bus
station. In order to place those events in proper perspective
however
it is apposite to narrate what occurred prior to
Westraadt’s
arrival. In this respect there is only one account, viz. that of the
plaintiff,
Alain
and
Alain’s
older brother,
Andre
Djomjoue
(
Andre
).
[8]
Andre
is resident in Port Elizabeth having acquired South African
citizenship. He and the plaintiff were well acquainted and the
plaintiff
had spent the week with him and
Alain
at his residence in Port Elizabeth. On the evening of 20 January 2007
he and
Alain
transported the plaintiff to the bus station at Greenacres to enable
the latter to board the 9:30 p.m. bus to Cape Town. The plaintiff
had
two (2) items of luggage, a small bag which he described as a
document bag and a box containing a moulinex food mixer. Although

there is some discrepancy between the plaintiff and his witnesses
concerning the exact size and description of his bag I accept
the
plaintiff’s evidence that he had a conventional laptop bag which
contained a few items of clothing, personal documents and
his
passport. Nothing however turns on these discrepancies. What is clear
is that the bus driver refused to allow the plaintiff
to board the
bus with the moulinex box. An exchange of words ensued, the driver
demanding that the plaintiff pay an additional
amount of R50, 00 for
the box and the plaintiff insisting that in that eventuality he be
provided with a receipt. The bus driver’s
intractable attitude led
the plaintiff to the company’s ticket office to resolve the impasse
but to no avail. The office was
locked and unmanned and the plaintiff
returned to the bus.
The disputed evidence
[9] The plaintiff’s
version is that en route from the bus he noticed a police vehicle
with two occupants and a dog. As he approached
the bus, he saw the
driver pointing to him remarking “
that’s
the guy”
.
Suspecting nothing untoward and of the mindset that the police
“had
come to put things right”
he proceeded nonchalantly towards them.
Westraadt
however grabbed him on the front of his shirt, slapped him on the
left check, uttered an obscenity relating to his perceived status
as
a Nigerian and kicked him on both legs. When the plaintiff
remonstrated, Westraadt produced a canister of pepper spray from
his
side which he sprayed onto the plaintiff’s face blinding him.
Further kicks felled him and whilst prone on his stomach felt
himself
being handcuffed, his arms behind his back. He was then lifted and
manhandled towards the police car and forced therein.
This proved
impossible for two reasons, his size and the manner in which he had
been handcuffed. He was then pulled out of the
vehicle and thrown to
the ground where he lost consciousness only regaining same in the
early hours of the following morning.
[10] The
plaintiff’s travails at the hands of
Westraadt
was corroborated by both Alain and Andre and although there are
discrepancies between themselves on the one hand and the plaintiff
on
the other concerning the sequence of events, I am satisfied that
these discrepancies do not in any way deleteriously impact
upon the
reliability of their evidence. More than two and a half years have
elapsed since the incident and the effluxion of time
is no doubt the
cause of these non-material inconsistencies. I found them to be
honest witnesses, who could, had they so wished,
embellished their
evidence. It is a testament to their honesty that they refrained from
so doing.
[11] In evaluating
the evidence adduced their version is the only one, objectively
considered, which can account for the plaintiff’s
hospitalisation
and is consistent with the injuries sustained by him.
Westraadt
,
save for admitting having sprayed pepper spray onto the plaintiff’s
face, denied the assault. During cross-examination by Mr
Mouton
,
Westraadt
was referred to the injuries sustained by the plaintiff and invited
to proffer an explanation. He opined that by falling to the
ground
after being sprayed with the pepper spray the plaintiff could
presumably have fractured his ankle. When asked to explain
the
bruising on both hips, he ventured the explanation that after falling
the plaintiff could conceivably have risen and fallen
again. This
explanation is contrived and false.
Westraadt
was an unimpressive witness whose evidence differed markedly from
that put to the plaintiff,
Andre
and
Alain
.
During
Westraadt’s
cross-examination it emerged that there were a number of police
vehicles and police officers on the scene and this lends support
for
Alain’s
evidence that prior to
Westraadt’s
arrival on the scene he saw the bus driver talking on his cellular
telephone and overheard him saying that
“Nigerians
were hijacking the bus”.
This
false and inflammable report precipitated the veritable avalanche of
police to the scene and explains Westraadt’s conduct.
That of
course does not excuse his abusive and aggressive treatment of the
plaintiff and
Alain
.
The assault upon him was unprovoked, unnecessary and symptomatic of
the malaise affecting portions of our society in relation
to
refugees. This xenophobic violence is to be deprecated. But, this did
not end with
Westraadt
.
[12]
Andre
and
Alain
both adverted to the fact that shortly after Westraadt and his
colleague’s arrival on the scene a large contingent of police

vehicles and police officials arrived. Both corroborated the
plaintiff’s version that
Westraadt
initially tried to force the plaintiff into his vehicle but that this
proved impossible. They testified that the plaintiff was
thrown to
the ground and remained prone until a police van arrived whereupon
Westraadt
forced the plaintiff into the rear compartment.
Westraadt’s
evidence
that the plaintiff and
Alain
boarded the vehicle of their own accord is in conflict with the
evidence of both
Andre
and
Alain
.
I have no hesitation in rejecting his evidence on this score as well.
In fact on the overall assessment of the evidence the entire
body of
his testimony is contrived and devoid of any truth. The only
acceptable version is that proffered by
Andre
and
Alain
.
[13] I accept that
when the fracas started
Alain
sought refuge in
Andre’s
vehicle because he had no documents with him. Both
Andre
and
Alain
were arrested, the former on suspicion that he was driving a stolen
vehicle.
Andre’s
evidence as to what transpired thereafter stands uncontradicted. He
was transported to the police station by an unknown policeman
who
had, at least, some modicum of respect for him for when
Andre
informed him that he had documents to prove his ownership of the
vehicle and his status the policeman escorted him to his home
where
he verified
Andre’s
assertions.
Andre’s
vehicle had in the meantime been driven to the police station by
another policeman and to enable
Andre
to retrieve it, the policeman drove him to the Mount road police
station. Before leaving however,
Andre
took
Alain’s
passport with him. On arrival at the police station,
Andre
retrieved the plaintiff’s passport from the bag which he had left
in his vehicle and exhibited both the plaintiff’s and
Alain’s
passports to the personnel at the charge office. The latter were
however unmoved compelling
Andre
to leave the police station in order to enlist the aid of an attorney
to secure their release. He furthermore testified that throughout

this period the plaintiff was laying unconscious in the passage at
the charge office and this once more proves the falsity of
Westraadt’s
evidence.
[14]
Alain
was required to carry the unconscious plaintiff on his back to the
cell. On the acceptable evidence, there were other police officials

on the scene and at the charge office who could not only have
intervened but have sought medical assistance for the plaintiff.
Alain’s
evidence furthermore that
Westraadt
left the charge office to wash the blood from his hands has the ring
of truth given the uncontroverted medical evidence. On a conspectus

of the evidence I have no doubt that the plaintiff was assaulted in
the manner described by him and his witnesses and its unlawfulness,

is beyond question.
[15] That the
subsequent arrest and detention were likewise unlawful admits of no
doubt. It is obvious that the charge that the
plaintiff was drunk and
disorderly and, a fortiori, the arrest and detention justified, was a
spurious one. The plaintiff,
Andre
and
Alain
all testified to the plaintiff’s state of sobriety. The charge of
being drunk and disorderly was clearly an afterthought to justify
the
arrest when it became evident later that evening following the
arrival of
Andre
with their passports which proved that neither the plaintiff nor
Alain
were illegal immigrants.
Alain
corroborated the plaintiff’s version that early the Sunday morning
he produced his identity document to a person who, given his
civilian
dress, the plaintiff considered to be an advocate. When
Westraadt
was asked to explain the curious anomaly in the handwritten words
“illegal immigrants
”
and
“drunkenness and
disorderly
”
on the document styled,
notice
of rights
,
(exhibits “A1” and “A19”) which he alleged the plaintiff was
too drunk to sign, his only response, nonsensical at that,
was that
there did not appear to be any discrepancy. It is furthermore obvious
that the plaintiff could not have supplied the information
recorded
thereon. Alain’s evidence that he supplied the information recorded
on both his and the plaintiff’s notices is readily
apparent from
the documents. Save for the plaintiff’s first name (incorrectly
spelt), the other particulars refer to Alain. These
documents in fact
attest to collusion between Westraadt and the other police officers
at the Mount road police station to justify
the plaintiff’s arrest
and detention.
The quantum of plaintiff’s
damages
[16
] The
plaintiff initially claimed the sum of R1 383 661,60, particularised
as –
“14.1 unlawful
arrest and detention R100 000.00
unlawful assault and concomitant
p
ain, shock,
suffering, discomfort,
loss of amenities and contumelia R100 000.00
psychological sequelae including
general damages R100 000.00
14.4 past and future loss of earnings R759 137.00
14.5 past medical expenses R 4 539.60
14.6 future orthopaedic medical
treatment R194 250.00
future psychiatric and
psychopharmicotherapy R125 735.00”
[17] The parties
agreed that the plaintiff’s past medical expenses amounted to R4
539.60 and that the plaintiff was entitled to
be compensated
therefor. During argument however plaintiff’s counsel properly
abandoned the claim for past and future loss of
income, limited the
claim for future orthopaedic and psychological treatment to R6 600.00
and R23 345.00 respectively but persisted
with the claim for R300
000.00 in respect of the unlawful assault, arrest and detention and
general damages. As adverted to earlier
the plaintiff formulated his
claim by claiming specific amounts in respect of the assault, the
arrest and detention. I can discern
no valid basis for the
compartmentalisation of the claim in the manner postulated. The
evidence adduced demonstrates a continuous
course of unlawful conduct
on the part of the police officials commencing with the arrest and
terminating with the plaintiff’s
release and for which a globular
amount would, in the circumstances, be appropriate.
[18] The assault
was unprovoked and the manner of its infliction sustained and brutal.
It is unnecessary to repeat its exact parameters
save to state that
Westraadt’s conduct was reprehensible in the extreme. When the
plaintiff cried out exclaiming that his leg
was broken no-one paid
the slightest heed. At the police station it must have been obvious
that the plaintiff’s comatose condition
raised serious concerns.
This however went unheeded. Alain had to carry the unconscious
plaintiff to the cell where he lay supine
until the next day. When
the plaintiff showed his identity document to the police the next
morning, this should have dispelled
any doubt that the plaintiff was
not an illegal immigrant. Notwithstanding, upon his return from the
hospital he was once more
locked in the cells. This cell was by all
accounts filthy and unhygienic.
[19] I have been
referred to various cases concerning awards in matters of similar ilk
but whilst these are useful for comparative
purposes, each award is
influenced by its own peculiar facts and circumstances. That the
plaintiff suffered excruciating pain admits
of no doubt. The medical
evidence attests to this. The ordeal he was subjected to raises grave
concern and is deserving of the
strictest censure. I am satisfied
that the invasion of his rights to bodily integrity and personal
liberty are sufficiently serious
to warrant an award in the amount
sought.
[20
] The
plaintiff’s claim for future medical expenses in relation to his
orthopaedic injury was based primarily on the evidence
of Dr
Mackenzie
.
Influenced no doubt by the contrary opinion expressed by Professor
Vlok
,
Mr
Mouton
felt constrained to suggest that an 80% contingency factor be applied
to Dr
Mackenzie’s
estimate for future medical expenses. In my view the evidence adduced
is inconclusive to show that the plaintiff will require any
further
orthopaedic surgical interventions. As regards the claim for future
psychotherapy, Mr
Gqamana
did not suggest that the plaintiff’s claim thereanent be
disallowed. He however suggested that it be limited to 2 or 3
sessions
of counselling. Although Prof.
Zabow
has opined that the plaintiff has reached a position of stability and
is coping reasonably well, I must defer to the opinion of
Mr
Meyer
who recently consulted with the plaintiff and who expressed the view
that further counselling is necessitated. In my view five
(5)
counselling sessions should however suffice.
[21
] As
regards costs, Mr
Gqamana
fairly conceded that the defendant was liable to be mulcted with the
costs of the French interpreter and liable for the qualifying

expenses of Drs
Crafford
and
Mackenzie
and Mr
Meyer
.
Mr
Mouton’s
plea that the costs of 2 counsel be allowed can however not be
sustained. This is clearly not the type of case which warranted
the
employment of two (2) counsel. In the result therefor I conclude that
the plaintiff is entitled to the following award:-
Special damages:
R4 539.60 + R2 500.00 = R 7 039.60
General damages:
=
R300
000.00
=
R307
039.60
[18] In the result the following order
will issue:-
There will be judgment in favour
of the plaintiff in the sum of R307 039.60 with interest thereon at
the prescribed rate from
a date 14 days from the date of this
judgment to date of payment, together with costs on the scale as
between party and party
and interest thereon at the prescribed rate
from the date of the taxing master’s allocatur to the date of
payment.
The costs will
include the qualifying expenses, if any, of Drs
Mackenzie
and
Crafford
and Mr
Meyer
and the costs attendant upon the services of the French interpreter.
____________________
D. CHETTY
JUDGE OF THE HIGH COURT
Obo of the Plaintiff: Adv Mouton /
Adv Ayerst
Instructed by
G.P Van Rhyn, Minnar & Co
C/o Ungerer Struwig Hattingh &
Peo
c/o Hancock & Market Streets
North End
Port Elizabeth
(Ref: Mr
Swanepoel)
Obo the Defendant: Adv Gqamana
Instructed by the State Attorneys
29
Western
Road
Central
Port Elizabeth