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[2012] ZAECPEHC 43
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Mbotya v Minister of Police (1122/10) [2012] ZAECPEHC 43 (10 July 2012)
IN THE HIGH COURT OF SOUTH
AFRICA
EASTERN CAPE DIVISION –
PORT ELIZABETH
CASE NO: 1122/10
HEARD: 08 JUNE 2012
DELIVERED: 10 JULY 2012
In the matter between:
LINDILE MBOTYA
….....................................................................
PLAINTIFF
v
MINISTER OF POLICE
….............................................................
DEFENDANT
____________________________________________________
JUDGMENT
____________________________________________________
MAGEZA AJ:
Background
[1] Plaintiff herein
claims damages in the amount of R250 000 for an alleged unlawful
arrest and detention. In the alternative,
plaintiff sues on the basis
that the arrest and detention was undertaken maliciously and without
probable cause.
[2] It is common cause
that the arrest and detention was carried out by a member of the
South African Police Services (SAPS) in
the employ of the defendant
on 15 June 2009. Defendant was subsequently released without having
been made to appear in court some
two days later on 17 June 2009. It
is also common cause that the arresting member was one Warrant
Officer Mitchell who was at the
time stationed at Mount Road police
station, Port Elizabeth.
[3] Defendant pleads
that plaintiff was lawfully arrested without warrant in accordance
with the provisions of
section 40(1)(b)
of the
Criminal Procedure Act
51 of 1977
based on Mitchell’s reasonable suspicion of the
plaintiff having committed an offence contemplated in schedule 1 of
the Act,
to wit Robbery of a motor vehicle.
[4] The issues that
arise for consideration are the following:
(i) Whether the arrest
was effected at Korsten Road as stated by plaintiff or at New
Brighton Police station as contended by the
defendant.
(ii) Whether on the
facts, Warrant Officer Mitchell had formed a reasonable suspicion
that the plaintiff had committed an offence
falling under Schedule 1
of the Act.
(iii) Whether he
applied his mind properly in exercising his discretion to arrest the
plaintiff.
(iv) If not, then the
quantum of plaintiff’s damages occasioned by the arrest and
detention.
(v) liability for
costs.
The evidence.
[5] Plaintiff testified
that he is employed by Volkswagen –(South Africa) at its
Uitenhage vehicle manufacturing plant. He
was on 15 June 2009 driving
a Blue Polo sedan vehicle leased to him by his employer. He woke up
that Monday morning with a hangover
and decided to call a friend, one
Monde, with whom he had been out drinking the night before. He went
to pick Monde up and this
was at around 08h00. They both went to have
drinks at a tavern situate in his area.
[6] An hour later, the
two men went to pick up his father in order to drive him to hospital
for medical attention. They returned
from hospital thirty minutes
later and by 10h00, he had dropped his father off at home. On the way
to Korsten and whilst in New
Brighton, they met two more of his
friends near Nangoza Jebe Hall. One of these friends is named
‘Beast’. In total
there were five of them, although it is
not clear when the fifth person had joined them. At a shop in
Korsten, they bought prepared
liver which they ate in the car and
later left this place and proceeded back to the New Brighton.
[7] On the way to New
Brighton and at ‘Barry’s corner’ at the
intersection of Kempston Road and Commercial Road,
they saw a
police-van parked at a set of traffic lights. Plaintiff says he
brought his vehicle to a stop at a red traffic light
next to the
police-van in which he noticed were two police officers. One of the
officers “indicated with his head”
that he must stop.
He crossed over and
came to a stop next to Standard Bank and the policemen followed and
parked behind his vehicle. Both police officers
approached with
firearms pointed at them. One policeman was positioned behind their
vehicle whilst the other was next to the window
on the driver’s
side. This officer instructed him to come out of the vehicle and he
searched him without informing him why
he was being searched. They
also searched his friends.
[8] The police found a
knife from one of his friends as well as a police-issue pepper spray
pump from one Adam. They were all instructed
to sit on the roadside
kerb with legs crossed whilst the vehicle was being searched. Nothing
more was found in the vehicle. Another
police vehicle with two more
plainclothes officers arrived and began to assist the others in the
searches. All this lasted for
about an hour.
[9] Plaintiff stated
that within the vicinity at which they had been stopped was a
security vehicle transporting money and the area
where his car was
stationed was cordoned off. This according to him, made his situation
worse because as this was a main road,
there were taxis passing
through and people saw him in that undesirable situation. The police
took them to New Brighton police
station. He was driven in his car by
one of the policemen. At the police station, they were handed pens
and paper and instructed
to write what they had been doing at
Korsten.
[10] The police did a
criminal record background check on all of them and some pre-dating
crime related records on some of them
were generated by the police
record computerised database. In his case, there existed a record of
his having been charged in 2008
with the unlawful possession of an
unlicensed firearm, a case which had subsequently been withdrawn. A
police woman at New Brighton
recognised ‘Beast’ as a
commonly known and regular criminal offender. They were told that
they would be taken to Algoa
police station on allegations that they
had been involved in a robbery. They were taken to Algoa police
station at about 13h00
where they were then locked up and detained.
[11] On Wednesday 17
June, the investigator of the Robbery case, Warrant Officer Ferreira,
came and took his fingerprints and asked
him why he associated
himself with criminals. Mr Ferreira said he saw no reason to keep
them in detention and that their friend
Adam, who had been identified
by a witness at New Brighton, would be the only one to remain in
custody. At Algoa police station
they were kept locked up in a
holding cell for 2 (two) hours and subsequently transferred to the
ordinary cells around 16h00.
[12] They were ordered
to fetch dirty blankets which had a pungent-smelling odour similar to
that of urine with which they were
to sleep. In the cell in which
they were locked up, there were water puddles on the floor; the walls
were dirty; windows did not
open and the non-flushing toilet emitted
an awful smell. There was a water tap next to the toilet cistern from
which they had to
draw water. In his view the place was comparable to
a pigsty where no human being should be kept. There were no other
detainees
except his group. He was released on Wednesday 17 June by
Warrant Officer Ferreira.
[13] Cross-examined by
Mr Dala for the defendant, plaintiff said the only items found on his
group when they were searched at Kempston
road were the knife and
pepper-spray. He was not handcuffed when driven in his car to New
Brighton and it had not been conveyed
to him that he was at that
stage under arrest. It was put to him that the police had initially
asked them a few simple questions
to which they could not provide
straight answers. He denied that the second policeman, one Warrant
Officer Van Huysteen who had
been with Mr Mitchell had spoken to him.
He denied that the police had asked for his permission to search his
vehicle. He said
he did not know that the pepper-spray pump was a
police-issue spray. Mr Dala put it to him that Warrant Officer
Mitchell had only
carried out their arrest at New Brighton police
station after informing him that one of them, Mr Adam, had been
pointed out as
having been involved in an earlier Robbery in Sidwell.
Plaintiff then closed his case.
[14] The defence called
Warrant Officer Mitchell to testify. He said he has been a member of
the SAPS for some 19 years and had
arrested Plaintiff on 15 June
whilst he and Warrant Officer Van Huysteen were doing crime
prevention patrols on Kempston road in
a business and industrial area
notorious for bank and business robberies. At the intersection of
Commercial and Kempston roads,
they noticed on the opposite side of
the road a blue Polo Player motor vehicle with 5 (five) occupants.
These occupants appeared
jovial and on realising they had noticed
them, changed their demeanour and appeared to become somewhat
nervous. He asked the driver
to stop and one of the occupants sitting
in the back tried to hide. The plaintiff alighted from the vehicle
and came towards them
and they formed the impression plaintiff was
doing so to dissuade them from approaching the vehicle. His colleague
spoke to plaintiff
whilst he himself requested the others to come out
of the vehicle.
[15] One of the men in
plaintiff’s vehicle was known to them as ‘Beast’
and as a notorious criminal offender.
He saw something in the pocket
of Adam and asked him if he had a weapon in his possession. This
turned out to be a police-issue
pepper-spray. One of the occupants
had a maroon knife with a clip handle. They became suspicious and
asked the men to come with
them to New Brighton police station to
check for outstanding criminal case warrants and to conduct further
general background checks.
[16] The group was
informed and were aware that as police officers, they were at that
stage simply investigating and that they had
not been placed under
arrest. He admitted that at that stage they did not have any evidence
to arrest anyone of them but had entertained
a suspicion which they
wanted to follow up with the background checks. During his testimony,
Mr Mitchell emphasised that crime
is a huge problem in that specific
area and that it is a banking area with shops and businesses attended
by frequent robberies.
[17] On arrival at New
Brighton police station, he was approached by a Mr Botha, an employee
of British American Tobacco Company,
who informed him that he had two
passengers in his vehicle who had been robbed and their vehicle
hijacked earlier in the Sidwell
area, a few kilometres from New
Brighton. He did not know why Mr Botha was at the police station but
said he just appeared out
of nowhere. One of these men was a Mr
Petrus Johannes Roberts. He interviewed this Mr Roberts the driver of
the vehicle that had
allegedly been hijacked. Roberts deposed to a
statement in which he pointed out Mr Adam who was with plaintiff as
one of the hijackers.
In the statement Roberts stated that Adam had,
as at the time of seeing him at New Brighton police station, had a
change of clothing
from that worn by him earlier during the alleged
Robbery.
[18] Mr Mitchell said
that he telephonically contacted the investigating officer of that
Robbery matter, one Warrant Officer Ferreira.
Mr Ferreira asked him
if there was red mud on the plaintiff’s vehicle and he told him
he had indeed seen red mud. It was
explained to him that there was
mud of that colour at the place where the Robbery had taken place. At
this point Mr Mitchell said
they always follow all avenues to assess
whether there is reason to believe that a crime had been committed
and a suspect implicated.
The background check also yielded police
information of previous offences of Robbery and unlawful possession
of firearms. With
the report of the hijack and mud connected to the
plaintiff’s vehicle, he deemed it necessary and reasonable to
arrest the
plaintiff.
[19] Cross-examined by
Mr Dyer for plaintiff, Mr Mitchell stated that he personally
interviewed Mr Roberts and that prior to this
he knew that there was
no basis to arrest the plaintiff. This remained the case even after
the background checks yielded the information
relating to past
brushes with the law. There were no outstanding warrants and the
possession of the knife and pepper-spray pump
was not sufficient a
basis to suspect the commission of an offence and on which to arrest.
He had not known any direct link to
a crime under investigation until
the approach by Mr Botha to him.
Once the statement was
deposed to by Mr Roberts and he had spoken to the investigator
Warrant Officer Ferreira and had been informed
of the mud which he
observed on plaintiff’s vehicle, this confirmed to him in his
mind that not only Adam was implicated,
but that plaintiff was
equally a suspect in respect of the newly reported robbery. He said
police experience is that criminals
favour the use of Polo Player
vehicles as these have,
inter alia
, hidden compartments useful
to hide illegally possessed items. These types of vehicles are also
regularly hijacked from innocent
owners. In the work they do, police
work as a team and have back up police teams and local business
owners also support their crime
fighting efforts.
[20] Continuing his
testimony, he said when they first stopped the plaintiff at Korsten,
they had enquired if he had any objection
to them searching his
vehicle to which he said he had none. This meant to them that he had
consented to the search. They also did
the background searches
because they did not believe the plaintiff was telling them the
truth. Without following up with these
searches during crime
prevention patrols, it would not be possible to successfully achieve
the goals of crime prevention. Bringing
plaintiff and his friends to
the New Brighton police station was an imperative as they could not
possibly access the information
without the use of computers. No one
was placed in a police van when driving to the police station as none
were under arrest. He
said no-one saw the plaintiff when sitting on
the side-walk as they were behind the vehicles.
[21] Mitchell said he
made the decision to arrest all of them as suspects himself based on
all the facts he had at his disposal
as set out in his evidence. He
itemised these reasons collectively as follows:
(i) They had lied to
them from the beginning;
(ii) There was a knife
and police issue pepper-spray in their possession;
(iii) ‘Beast’
a well-known offender was in their company;
(iv) The group had
behaved suspiciously;
(v) The police printout
showed involvement in other previous offences contrary to what they
said;
(vi) The statement of
Mr Roberts implicated Adam and the red mud on the car connected the
vehicle with the allegations of a motor
vehicle robbery;
(vii) Robbers generally
work in large groups and more often than not drive more than one
vehicle.
He also said that at
New Brighton police station, he released the plaintiff’s
vehicle to representatives of Volkswagen South
Africa on the
instructions of Warrant Officer Ferreira as investigator. He denied
dealing with plaintiff in any manner suggestive
of malice.
The defence closed its
case without calling Warrant Officers Van Huysteen and/or Ferreira.
Analysis.
[22] During the course
of his testimony it was quite clear that Mr Mitchell is a
well-trained police officer with vast amounts of
experience in crime
prevention. He certainly came across as a dedicated police officer
who took his responsibilities seriously
and with an honest commitment
to do his best to combat crime given the well-known unacceptable high
levels at which robberies and
other associated crimes continue to
occur. His testimony that the area in which they were patrolling was
notorious for robberies
was not disputed.
[23] In Mr Mitchell’s
earlier evidence, he admitted to the court that even when they
arrived at New Brighton police station
and prior to interviewing Mr
Roberts, he had no basis to arrest the plaintiff. He said the earlier
searches which yielded a knife
and a pepper-spray can, as well as the
background checks which generated the computerised background
information relating to past
brushes with the law was not of itself
enough to justify any arrest. He had not known any direct link to a
crime under investigation
until he was approached by Mr Botha and
then interviewed Mr Roberts. The statement of Mr Roberts implicating
Adam in the robbery
on the one hand, and the red mud on plaintiff’s
vehicle provided the foundation that led to him entertaining a strong
suspicion
in his mind that plaintiff had also been involved in the
robbery.
Legal position.
[24]
Section 40(1)(b)
of the
Criminal Procedure Act 51 of 1977
provides that,
“a
peace officer may without warrant arrest any person whom he
reasonably suspects of having committed an offence referred
to in
Schedule 1”
.
The jurisdictional
requirements have come to be stated as follows, that for a lawful
arrest under section:
(i) the arrestor must
be a peace officer;
(ii) the arrestor must
entertain a suspicion;
(iii) the suspicion
must be that the suspect committed an offence
referred to in schedule
1;
(iv) the suspicion must
rest on reasonable grounds.
The test to be applied
is an objective test.
See
Duncan v
Minister of Law and Order 1986(2) SA 805 (A) at 818 G-H; Nkambule v
Minister of Law and Order
1993 (1) SACR 434
(T) at 436 A-B; Mvu v
Minister of Safety and Security and Another
2009 (2) SACR 291
(GSJ)
para 9; Olivier v Minister of Safety and Security and Another
2009
(3) SA 434
(W) at 440G.
It is not in dispute
that Warrant Officer Mitchell is such a Peace Officer as defined in
the Act.
[25]
“The
test whether a suspicion is reasonably entertained within the meaning
of s 40(1)(b) is objective (
S v Nel and Another 1980(4) SA 28 (E)
at 33H
).Would a reasonable man in the second defendant’s
position and possessed of the same information have considered that
there
were good and sufficient grounds for suspecting that the
plaintiffs were guilty of conspiracy to commit robbery or possession
of
stolen property knowing it to have been stolen? It seems to me
that in evaluating his information, a reasonable man would bear in
mind that the section authorises drastic police action. It authorises
an arrest on the strength of a suspicion and without the
need to
swear out a warrant, ie something which otherwise would be an
invasion of private rights and personal liberty. The reasonable
man
will therefore analyse and assess the quality of the information at
his disposal critically, and he will not accept it lightly
or without
checking it where it can be checked. It is only after an examination
of this kind that he will allow himself to entertain
a suspicion
which will justify an arrest. This is not to say that the information
at his disposal must be of sufficiently high
quality and cogency to
engender in him a conviction that the suspect is in fact guilty. The
section requires suspicion not certainty.
However the suspicion must
be based on solid grounds. Otherwise it will be flighty or arbitrary,
and not a reasonable suspicion.”
–
See
Mabona and Another v Minister of Law and Order
and Others
1988 (2) SA 654
(SE) at 658 E-H.
See
also
S v Purcell-Gilpin
1971 (3) SA 548
(RA)
[26] As regards onus of
proof in these matters it is settled law that a plaintiff need only
allege the deprivation of his freedom
and require of the defendant to
plead and prove justification. It is thus the defendant who bears the
onus of proving the lawfulness
of the arrest. – See
Minister
of Law and Order v Hurley 1986(3) SA 568 (A) at 589 E-F; Minister van
Wet en Orde v Matshoba
1990 (1) SA 280
(A) per Grosskopf JA
.
Did Warrant Officer
Mitchell entertain a belief that was reasonable in the circumstances
?
[27]
For
purposes of this decision, I will accept the evidence of Mr Mitchell
that he only carried out the arrest once he received the
report from
Ferreira after having noted Roberts’ statement and not during
the earlier search conducted on Korsten Road, North
End.
He said having taken a
witness statement from Mr Roberts he called Warrant Officer Ferreira
who asked him if there was red mud on
the plaintiff’s vehicle
and he in turn told Ferreira he had indeed seen red mud on
plaintiff’s vehicle. Ferreira then
commented to him that there
was mud of that colour at the place where the Robbery had taken
place. Roberts himself did not implicate
plaintiff in the robbery. On
the basis of the report of red mud connected to the plaintiff’s
vehicle, he deemed it necessary
and reasonable to arrest the
plaintiff.
[28] Ferreira did not
come out to New Brighton even though Sidwell, where the robbery was
alleged to have taken place, was no more
than a brisk drive to New
Brighton where the plaintiff’s vehicle was. Ferreira was the
investigating officer in respect of
that alleged robbery and one
would expect that in those circumstances a reasonably vigilant police
officer would follow up such
information himself and not to outsource
a function as invasive as an arrest over to another police officer
when the need to follow
up on such crucial evidence was patent. In
fact, when Mr Botha informed Mitchell that there were passengers in
his vehicle who
had been robbed and who wanted to make a statement
about a robbery already having an investigator – Ferreira,
quite why it
was necessary for Mr Mitchell to take this statement and
not call Ferreira to come out given the meagre distance is
unexplained.
Mitchell told this court that as policemen doing
crime-prevention shifts, they always follow all avenues to assess
whether there
is in any given situation reason to believe that there
has been possible involvement in the commission of a crime. Indeed
this
is the very function that Warrant Officer Ferreira should have
served in light of the fresh occurrence of the incident.
[29] Ferreira did not
attend at New Brighton and although in Mitchell’s decision
making process, the persuasive information
upon which he deemed it
necessary to arrest plaintiff came from Ferreira, the defence did not
call Ferreira to testify in support
of the contention that he
enquired as to the presence of red mud, a factor which led to
Mitchell effecting the plaintiff’s
arrest. There was no
suggestion that Ferreira was unavailable but the defence elected to
rely only on the evidence of Mitchell
as a single witness.
[30] There is no
explanation as regards what the basis was for the release of the
plaintiff’s vehicle to representatives of
his employer when it
was suspected of being an instrument utilised in a robbery offence.
This release was done before any evidentiary
material was collected
for forensic evaluation and evidential proof. The arrest of plaintiff
was not carried out simultaneously
with an intent to preserve the
very alleged evidence forming the foundation for his arrest.
[31] The statement of
Roberts is also of little assistance to Mr Mitchell. This statement
only mentions one vehicle, a “white
Bakkie LDV” as the
vehicle used by the Sidwell robbers. It contains this allegation that
he only saw three robbers who alighted
from this LDV.
[32] Mr Ferreira’s
further conduct in summarily releasing the plaintiff and others on 17
June (save for Mr Adam) lends itself
to further uncertainty as
regards what the true telephonic exchange was between himself and Mr
Mitchell that Monday midday at New
Brighton police station. The court
never had the benefit of this testimony and in my view it was
incumbent upon the defence to
place this on record in its efforts to
discharge the onus resting upon it to justify the arrest.
[33] There is a further
difficulty. Plaintiff was employed and this would have been confirmed
by the employer when contacted to
verify the ownership of the
vehicle. The police made contact with plaintiff’s employer and
the ownership status of the vehicle
and his being in their employ
must needless to say have been confirmed by the employer. In such
circumstances, there being clear
evidence of employment and a settled
home address, Roberts not having connected the plaintiff with the
incident and the evidence
of connecting red mud being foregone, very
little else remained that could have persuaded a reasonable police
officer to arrest.
[34] I am not persuaded
that Mr Mitchell had a reasonable basis at all to arrest the
plaintiff and he failed to properly apply his
mind to Roberts’
report. His conduct fell far too short of that expected of a police
officer in his position with the scant
information he had at his
disposal.
Quantum.
[35]
Plaintiff’s employer was informed of his arrest by Warrant
Officer Mitchell and it is reasonable to imagine that word
would have
spread quickly among his co-workers. At Algoa police station he said
they
were kept locked
up in a holding cell for 2 (two) hours and subsequently transferred
to the ordinary cells around 16h00.
They were ordered to
fetch dirty pungent-smelling blanketswith which they were to sleep.
In the cell they were locked up in, he
said there were water puddles
on the floor; the walls were dirty; windows did not open and the
non-flushing toilet emitted an awful
smell. There was a water tap
next to the toilet cistern from which they had to draw water.
[36]
In
Thandani
v Minister of Law and Order
1991 (1) SA 702
(E) at
707B
,
Van
Rensburg J observed:
“
In
considering
quantum
,
sight must not be lost of the fact that the liberty of the individual
is one of the fundamental rights of a man in a free society
which
should be jealously guarded at all times and there is a duty on our
Courts to preserve this right against infringement. Unlawful
arrest
and detention constitute a serious inroad into the freedom and rights
of an individual.
”
[37]
Visser and Potgieter, Law of Damages 2
nd
edition
at 475 outline some of the factors to be taken into account in the
awarding of damages to include:-
“
The
circumstances under which the deprivation of liberty took place; the
presence or absence of improper motive or ‘malice’
on the
part of the defendant; the harsh conduct of the defendants; the
duration and the nature (e.g. solitary confinement) of the
deprivation of liberty; the status, age and health of the plaintiff;
the extent of publicity given to the deprivation of liberty;
the
presence or absence of an apology or satisfactory explanation of the
events by the defendants; awards in previous comparable
cases; the
fact that in addition to physical freedom, other personality
interests such as honour and good name have been infringed;
the high
value of the right to physical liberty; the effect of
inflation; and the fact that the
action
injuriarum
also
has a punitive function.”
[38]
In
Minister
of Safety and Security v Tyulu
2009 (5) SA 85
(SCA) at 93 d –
f,
Bosielo
AJA (as he then was) commented:
“
In
the assessment of damages for unlawful arrest and detention, it is
important to bear in mind that the primary purpose is not
to enrich
the aggrieved party but to offer him or her some much-needed
solatium
for
his or her injured feelings. It is therefore crucial that serious
attempts be made to ensure that damages awarded are commensurate
with
the injury inflicted. However, our courts should be astute to ensure
that the awards they make for such infractions reflect
the importance
of the right to personal liberty and the seriousness with which any
arbitrary deprivation is viewed in our law…Although
it is
always helpful to have regard to awards made in previous cases to
serve as a guide, such an approach if slavishly followed
can prove to
be treacherous. The correct approach is to have regard to all the
facts of the particular case and to determine the
quantum of damages
on such facts
Minister
of Safety and Security v Seymour
2006 (6) SA 320
(SCA) at 325 para
17; Rudolph and Others v Minister of Safety and Security 2009 (5) 94
(SCA) ([2009] ZASCA 39) paras 26-29)
.”
[39]
In an unreported decision of this Court per Jones J in
Olgar
v Minister of Safety and Security [ECD 18 December 2008 (case 608/07)
at para 16]
,
the following was stated:
“
In
modern South Africa a just award for damages for wrongful arrest and
detention should express the importance of the constitutional
right
to individual freedom, and it should properly take into account the
facts of the case, the personal circumstances of the
victim, and the
nature, extent and degree of the affront to his dignity and his sense
of personal worth. These considerations should
be tempered with
restraint and a proper regard to the value of money, to avoid the
notion of an extravagant distribution of wealth
from what Holmes J
called the ‘horn of plenty’, at the expense of the
defendant.”
[40]
In another unreported judgment of this division, Sandi J in
Juan
Jonathan van der Merwe v Minister of Safety and Security [case number
2565/2009],
(in
which reference is also made to the decision of Plasket J in
Petersen
v Minister of Safety and Security (1173/2008),
Plaintiff
was arrested on Friday and kept in custody until his release on the
Monday. At paragraph 52 the Court observed as follows:
“
On
the question of quantum I have been referred by Mr Cole to unreported
decisions of this division. The first one is the matter
of
Fubesi
v The Minister of Safety and Security case no. 680/2009
where
a plaintiff was awarded damages in the sum of R80 000.00 for
arrest without warrant and a detention which lasted for
three days
and about 18 hours. In the matter of
Tommy
Petersen v The Minister of Safety and Security1173/2008
the
plaintiff was assaulted by members of the police force. He was
arrested and dragged from his home in only a pair of shorts.
At the
police station he was assaulted. He was arrested at 20h00 and
released at about 04h00. He claimed damages for unlawful arrest
and
detention and for the assault on him. In respect of the unlawful
arrest and detention the plaintiff was awarded R60 000
and
R120 000 in respect of the assault which was a fairly serious
one. Having considered the fact of this matter and the judgment
to
which I have been referred I am of the view that the amount of
R120 000 would be reasonable in respect of the unlawful
arrest
and detention. In so far as the assaults are concerned I propose to
award an amount of R2000 in respect of each assault”
[41]
I am also mindful of the decision in
Mvu
v Minister of Safety and Security and another 2009(6) SA 82 (GSJ)
in
which Willis J, feeling suitably chastised by the Supreme Court of
Appeal (
Seymour
decision)
acknowledged the conservative approach of our Courts and awarded
damages in the sum of R30 000 for a day’s
detention. (see
also
Ramakulukusha
v The Commander Venda National Force 1989(2) SA 813 (V).
All
these decisions however are influenced in the final determination by
the specific facts of each case.
[42]
Taking into account all of the afore-going, I make the following
order:
Judgment
is entered in favour of Plaintiff:
42.2
In respect of the unlawful arrest, attendant
contumelia
and
detention between the afternoon of 15 June 2011 to 17 October 2011
damages in the amount of R55 000.00 are awarded.
42.3
Defendantis ordered to pay interest on the damages awarded above at
the legal rate from a date fourteen days after date of
this judgment
to date of final payment.
42.4
Costs of suit together with interest calculated at the legal rate
from a date fourteen days after the
allocator
to
the date of payment. These to include costs occasioned by the
postponements ordered by Pillay J on 15 June 2011 and by Eksteen
J on
5 March 2012.
___________
MAGEZA AJ
COUNSEL FOR
PLAINTIFF MR DYER
INSTRUCTED BY
O’BRIEN PIETERSE ATTORNEYS
7 BIRD STREET,
CENTRAL
PORT ELIZABETH
Ref- N D
O’Brien/UAD460
COUNSEL FOR
DEFENDANT MR DALA
INSTRUCTED BY STATE
ATTORNEY
29 WESTERN ROAD,
CENTRAL
PORT ELIZABETH
Ref
– 27/2010/T
19