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[2016] ZAECPEHC 8
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Mfuengi v Minister of Home Affairs and Another (3177/13) [2016] ZAECPEHC 8 (17 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, PORT ELIZABETH)
CASE
NO: 3177/13
In
the matter between:
GILLIAN
MFUENGI
..................................................................................................................
Plaintiff
v
MINISTER OF HOME
AFFAIRS
.................................................................................
First
Defendant
MINISTER
OF CORRECTIONAL
SERVICES
.....................................................
Second
Defendant
JUDGMENT
Heard
on: 1 December 2015
Delivered
on: 17 March 2016
MAKAULA
J:
[1]
The plaintiff issued summons against the defendants claiming damages
in the amount
of R350 000.00 arising from his unlawful arrest and
detention at the instance of the officials of the first defendant.
[2]
The action against the second defendant was withdrawn at the
commencement of the proceedings.
[3]
Mr Gajjar, for the first defendant, closed the case of the first
defendant without
leading evidence. He submitted that he had no
instructions to concede the unlawfulness of the arrest.
A.
The facts
:
[4]
The plaintiff testified that he came to South Africa in June 1994 on
a temporal visa
permit for medical reasons and to seek political
asylum. He got married on 26 May 1996 to a South African woman
who unfortunately
passed away in 2010 while serving his sentence.
No children were born out of the marriage. However, he has a
boy child
born out of wedlock. He attained South African
permanent resident status in 1999. He testified that he was
sentenced
to four years imprisonment for fraud. He was released
on parole on 13 August 2012, only to be arrested by the officials of
the first defendant on allegations that he was an illegal foreigner
the same day. He informed them that he was a South African
citizen still inside prison premises. However, his plea fell on
deaf ears. He was detained at Medium A Section at St
Albans
Prison until 27 August 2012.
[5]
The plaintiff testified that his arrest affected him physically,
emotionally and morally.
He testified further that he could not
honour a promise to his son that he would meet him on 13 August 2012
upon his release.
[6]
Mfundo Mabangula testified that he is an attorney working for the
Refugee Rights Centre
attached to the Nelson Mandela Metropolitan
University
(Institute for Law in
Action).
On receipt of
instructions about the plaintiff, he wrote several letters to the
first defendant in an attempt to secure the plaintiff’s
release
which ultimately occurred on 27 August 2012.
B.
Argument
:
[7]
Mr Dyer, for the plaintiff, submitted that the conduct of the first
defendant revealed
total disregard of the rights and interests of the
plaintiff in that
(a)
they
should have first properly investigated the status of the plaintiff
before arresting him, and
(b)
in
spite of numerous e-mails sent to the first defendant, it detained
the plaintiff for 14 days conducting investigations which
should have
been done before arresting the plaintiff.
[8]
Relying on previous awards, Mr Dyer submitted that an amount between
R200 000.00 and
R230 000.00 would suffice to compensate the damages
plaintiff suffered.
[9]
Mr Gajjar submitted that other than what the plaintiff testified to,
there is no sufficient
information, like the conditions the plaintiff
leaved under at St Albans prison, to justify the amount sought in
damages.
The paucity of information would inevitably leave this
court to speculate about the circumstances which would justify the
amount
claimed, so he submitted.
C.
Lawfulness of the arrest and
detention
:
[10]
Depravation of personal liberty is prima facie unlawful. The
onus to prove the lawfulness
of the arrest vested on the defendant.
Langa CJ in
Zealand
[1]
said the following:
“
It
has long been firmly established in our common law that every
interference with physical liberty is prima facie unlawful.
Thus, once the claimant establishes that an interference has
occurred, the burden falls upon the person causing that interference
to establish a ground of justification.... [I]t must be sufficient
for a plaintiff who is in detention simply to plead that he
or she is
being held by the defendant. The onus of justifying the
detention then rests on the defendant. There can
be no doubt
that this reasoning applies with equal, if not greater, force under
the Constitution.”
[2]
(Footnotes omitted.)
[11]
The first defendant has not discharged the onus of proving the
lawfulness of the arrest.
Therefore, the first defendant is
liable for the unlawful arrest and detention of the plaintiff.
D.
Quantum
:
[12]
In cases of this nature, the award of damages is dependent upon the
discretion of the court and
is calculated
ex
acquo et bono.
Factors
which are normally taken into consideration are 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 nature
(e.g.
solitary confinement or humiliating nature)
of
the deprivation of liberty, the status, age, health and disability of
the plaintiff, awards of previous cases, the fact that
in addition to
physical freedom, other personality interests such as honour and good
name as well as constitutionally protected
fundamental rights have
been infringed etc.
[3]
[13]
The plaintiff at the time of his arrest was on parole having been
released from prison on the
day of his arrest. He had been
serving a four year sentence for fraud. I am not privy to his
parole conditions.
The parole conditions would have been of
assistance in assessing the impact the unlawful arrest and detention
would have had to
the plaintiff.
[14]
It is further not clear under what conditions the plaintiff was
detained at Medium A in St Albans.
The evidence does not
indicate whether the plaintiff was detained in a manner and place
(in
Medium A section)
determined by the Director General of the first defendant as
envisaged by Section 34(1) of the Immigration Act.
[4]
That evidence would be crucial to determine whether the plaintiff was
detained with general prison population or other illegal
foreign
nationals as the defendant thought of the plaintiff. To me,
that would matter when determining quantum. I say
so mindful
that conditions generally in prison are not conducive to the
wellbeing of anyone who is not supposed to be incarcerated
like the
plaintiff. It would have been of great assistance to have heard
about the conditions the plaintiff stayed under
during the 14 days he
spent in prison.
[15]
The plaintiff, as stated above, testified that his arrest and
detention affected him physically,
emotionally and morally. However,
the plaintiff did not tender evidence on how he was so affected.
The evidence of the plaintiff
lacks details which would otherwise
assist in the assessment of the amount of damages to be awarded.
[16]
Deprivation of liberty and freedom should not be treated lightly in
circumstances like these.
In
Olgar
v Minister of Safety and Security
[5]
,
Jones J had the following to say:
“
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.”
[6]
[17]
As alluded to, Mr Dyer referred me to a number of decisions in
respect of previous awards.
The awards varied between R200
000.00 and R230 000.00 for plaintiffs who had been unlawfully
arrested and detained for 10 to 21
days. I have considered
those matters. It is now trite that previous decision can be a
useful guide in determining
an appropriate award for damages.
The following statement by Bosielo AJA, as he then was, in
Minister
of Safety & Security v Tyulu
,
is apposite
.
[7]
“
[26]
“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 the
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
of personal liberty is viewed in our law. I readily
concede that it is impossible to determine an award of damages for
this
kind of
injuria
with
any kind of mathematical accuracy. 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 and Another
2009
(5) SA 94
(SCA) ([2009] ZASCA 39) paras 26-29).”
[8]
[18]
Having had regard to the principles enunciated above, I consider that
an amount of R10 000.00
shall be appropriate.
[9]
[19]
Consequently, I make the following order:
1.
The arrest and detention of the
plaintiff is declared to have been unlawful;
2.
The first defendant is ordered to
pay the sum of R10 000.00 (ten thousand rand) to the plaintiff as
damages;
3.
The first defendant is ordered to
pay the plaintiff’s costs.
M
MAKAULA
JUDGE
OF THE HIGH COURT
Appearances
:
Plaintiff:
Adv Dyer
instructed by
N
E Mbewana Attorneys
Cnr
Market & Graham Street
North
End
PORT
ELIZABETH
Defendants:
Adv Gajjar
instructed by
State
Attorney
29
western Road
Central
PORT
ELIZABETH
[1]
Zealand
v Minister of Justice and Constitutional Development
[2008] ZACC 3
;
2008
(4) SA 458
(CC).
[2]
Ibid
at
para [25].
[3]
Visser & Potgieter,
Law
of Damages
,
JUTA Cape Town 2012 3ed at 545-568 and the authorities cited
therein.
[4]
13
of 2002; see
Minister
of Home Affairs vs Rahim and Others
[2016] ZACC 3
decided on 18 February 2016.
[5]
Olgar
v The Minister of Safety and Security
2008 JDR 1582 (E)
.
[6]
Ibid
at
para [16].
[7]
2009 (5) SA 85( SCA).
[8]
Ibid
at
93D-F.
[9]
Rahim
v Minister of Home Affairs
2015
(4) SA 433
(SCA) at para [27].