Buthelezi v Minister of Police and Others (D7472/2013) [2021] ZAKZDHC 20 (2 August 2021)

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[2021] ZAKZDHC 20
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Buthelezi v Minister of Police and Others (D7472/2013) [2021] ZAKZDHC 20 (2 August 2021)

IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
CASE
NO: D7472/2013
In
the matter between:
PATRICK
BUTHELEZI
Plaintiff
and
MINISTER
OF
POLICE
First Defendant
MINISTER
OF
JUSTICE
Second
Defendant
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Third
Defendant
DIRECTOR
OF PUBLIC PROSECUTIONS, KWAZULU-NATAL
Fourth
Defendant
ORDER
1.
The First and Third Defendants, jointly and severally, the one paying
the other to be absolved, are
directed to pay, for the unlawful
detention of the Plaintiff for the period 22
nd
November 2011 until 14
th
December 2012 as damages an amount of R 1 668 592,00, made up as
follows:
1.1
General Damages
R 1 600 000.00
1.2
Past Loss of Income
R        8 592.00
1.3
Special Damages – Legal Fees
and
cost of transcripts
R        60 000.00
2.
The First and Third Defendants, jointly and
severally, the one paying the other to be absolved, are directed to
pay interest
on the above amount at the prescribed rate from a
date 14 days after date of judgment to date of payment.
3.
The First and Third Defendants, jointly and
severally,
jointly and severally
, are
directed to pay the plaintiff’s costs of trial such costs to
include the costs attendant on the compilation of the expert
reports
of Specialist Psychologist, Dr Chohan as well as the costs of the
actuarial report by Mr Hellig.
JUDGMENT
Chetty J:
[1]
This is a quantum trial following an action for damages by the
plaintiff against the
defendants arising from his arrest and
detention on a charge of rape of a nine- year-old learner at the
school at which he was teaching.
The plaintiff was arrested on 21
November 2011 after family members of the learner confronted him at
the school, in the presence
of the school management and other
educators. As a result, the plaintiff, after consulting with his
attorney, handed himself over
to the police, who detained him until
his bail application on 29 November 2011. In light of the seriousness
of the charges against
the plaintiff, a formal bail application was
held, after which the plaintiff was refused bail on the grounds that
he was unable to
show exceptional circumstances justifying his
release on bail. It is common cause that he remained incarcerated
until his eventual
acquittal at the conclusion of a criminal trial on
14 December 2012.
[2]
Following his acquittal, the plaintiff instituted an action against
the defendants arising
from the conduct of the investigating officer
and the prosecutor. This court handed down judgment on liability on
30 July 2019 in
which it held that the plaintiff’s detention from
22 November 2011 until 14 December 2012 was unlawful and that the
first and third
defendants were jointly and severally liable to
compensate the plaintiff for such damages as were agreed or proven.
It further ordered
the first and third defendants to be liable for
the plaintiff’s cost of suit.
[3]
It bears noting that in finding for the plaintiff on the merits
of
the action, the court concluded that the investigating officer had
failed to bring certain information to the attention of the
prosecutor and the court, which information, if it had been
disclosed, would have revealed the State’s case in a far weaker
light
than it had been made out. In respect of the prosecutor’s
role, the court noted the following in paragraphs 61-62 of its
judgment:
‘
[61]
It is not in dispute that the defendants bear the onus to prove that
the detention of the plaintiff was lawful. Both the investigating
officer and the prosecutor at the bail application testified that
they were bound by a duty to act fairly and lawfully to the plaintiff
and to respect his rights, including that of liberty. It was
submitted in argument by the plaintiff’s counsel that contrary to
such duty, both the investigating officer and the prosecutor failed
to disclose to the presiding magistrate hearing the bail application
of the contents of Ms Mkhize’s statement; that the first report by
the complainant to her aunt was inadmissible because of the
existence
of the knowledge that the implication of the plaintiff only arose
after the complainant was threatened with a beating;
that the
investigating officer failed to carry out certain investigations
including the interviewing of the children in the complainant’s
class and that the complainant gave conflicting explanations to her
aunts as to why she was crying.
[62]
In light of this, it was submitted by Mr
Singh
that had the
magistrate been in possession of all of these facts, she probably
would have granted the plaintiff bail. In fact, in
response to a
question posed by the Court to the prosecutor at the conclusion of
her evidence, Ms Perumal conceded that with hindsight
and knowledge
of all of the facts which emerged at the trial, the affidavit of Ms
Mkhize should have been brought to the attention
of the magistrate
together with the revelation that the child had been beaten or
threatened with a beating before implicating the
plaintiff. In her
words, she perhaps may have “inadvertently” misled the court.’
[4]
While the court found that the prosecutor may have been negligent,
her conduct in the matter paled to that of the investigating officer.
In this regard the court said the following in paragraph 68
of its
judgment regarding the investigating officer: ‘In my view, he
withheld evidence which would have been crucial for the court
hearing
the bail application to assess the strength of the State’s case.
His explanations for these omissions, in light of his
public law
duty, are simply unconvincing. I am of the view that he was probably
driven to oppose bail because of public sentiment
over the serious
nature of the allegations. The plaintiff was sacrificed to satisfy
the need to make an early arrest and keep the
offender behind bars,
despite the paucity of evidence against him even at the time of the
bail application.’
[5]
Mr
Singh
, who appeared on behalf of the plaintiff, submitted
that in determining the quantum of damages to be awarded to the
plaintiff regard
should be had to the conduct of the prosecutor and
the investigating officer. It is not in dispute that the plaintiff
was unlawfully
detained for a period of 388 days in total, during
which time he appeared in the District Court on eight occasions and
on 14 occasions
in the Regional Court, until his acquittal. As
appears from what is set out below, the matter received much
publicity in the print
media.
[6]
Prior to the commencement of the quantum trial, the representatives
of the parties were in agreement that the plaintiff sustained past
loss of income of R8 592,00 and special damages of R60,000, the
latter amount comprised primarily of legal fees incurred by the
plaintiff in challenging the criminal charges brought against him.
The only issue that remained before me was a determination of what
would constitute a reasonable and fair amount in respect of general
damages.
[7]
By agreement of the parties and the court, and in light of the
fact
that the first day of trial was lost due to the defendants’ counsel
not having proper instructions, the plaintiff handed in
as an exhibit
a written statement which formed part of the plaintiff’s bundle of
documents to be used in the trial.
Counsel for the
defendants, Ms
Khuzwayo SC
, had no objection to the document
being handed in, and furthermore admitted its contents. In summary,
the statement sets out in graphic
detail the experiences which the
plaintiff encountered during his incarceration. The plaintiff
testified briefly on certain aspects
of his incarceration, including
the hierarchy which he encountered amongst the prisoners at Westville
Prison. He provided details
of the manner in which new inmates were
forced to ‘buy’ their safety from abuse by supplying other senior
inmates with cigarettes
and airtime. In addition, the plaintiff was
forced to pay R600.00 in order to receive a clean bed, bed sheets and
a sponge to wash
himself. He also paid for the rental of a television
for the benefit of all the inmates in the cell. The gang culture was
evident
in the hierarchy of the prisoners, and during his period of
incarceration he witnessed stabbings and sexual assaults of inmates.
He testified that an article which appeared in the
Isolezwe
newspaper found its way to his cell and was read aloud by one of
the inmates, which gave details of the plaintiff’s case but did
not
mention him by name. The fact that the complainant was a
nine-year-old learner angered the inmates, who referred to the
perpetrator
as a ‘madman and a dog’ who should be stabbed for
raping a young girl. The plaintiff was panic stricken as to what
would happen
to him if news reached the inmates that he was indeed
the accused in the rape trial. He testified that he eventually
confided in
an inmate and told him that he was the accused referred
to in the article, but professed his innocence throughout.
Fortunately for
the plaintiff, he suffered no repercussions as a
result of the article.
[8]
The plaintiff testified that after his release from prison he
was
examined by a clinical psychologist, Dr Chohan, whose report was
handed in by consent, with the contents thereof being admitted
by the
defendants. Dr Chohan concluded that during the period of his
detention, the plaintiff experienced feelings of fear, horror
and
shame and had his life threatened after his release. He continued to
have flashbacks of events that occurred during his detention
at
Westville Prison, leading to him becoming hyper vigilant and
developing sleep disturbances. According to Dr Chohan the plaintiff
should have been diagnosed as suffering from post-traumatic stress
disorder (PTSD). The plaintiff was also diagnosed as suffering
from
depression by Dr Agambaram, after which he was placed on sick leave
for a few days. In April 2013 the plaintiff was admitted
to Entabeni
Hospital for treatment for his depression for a period of ten days.
[9]
After his release, he was barely able to sleep and repeatedly
cried,
with recurring flashbacks of the unsanitary conditions in his cell as
well as the assaults on fellow inmates. He testified
that these
depressive episodes have since abated with treatment. He now attempts
to avoid confrontation or stressful situations.
He related an
experience of him having to admonish certain parents who were selling
sweets on school property. When he did so, the
parents refused to
obey his instructions, and responded by bringing up the charges that
had been laid against him. In this way, the
ordeal of having been
charged for a heinous crime of having raped a learner has not
entirely left him. As Mr
Singh
submitted, the plaintiff is in
large measure ‘scarred for life’. He is unable to forget the
experience of his detention and people
in the community have not
forgotten the accusation against him, notwithstanding his acquittal.
[10]
Mr Buthelezi testified of the effect that his incarceration had on
his personal life.
He was constantly afraid of being sexually
violated and contracting a sexually transmitted disease. While at
Westville Prison he
was visited by his fiancée. Prior to his arrest,
he had paid
labola
and intended getting married to her.
However, the stress of his incarceration took its toll on their
relationship which ended while
he was still in prison. After his
release from prison in December 2012, the plaintiff subsequently
formed a relationship and got
married on 21 December 2018. He and his
wife have three children, aged 7, 6 and 3 years’ old. In addition,
he also cares for his
two nephews, as a result of the death of his
brother in 2001. Prior to his arrest and incarceration, the plaintiff
was a member of
the South African Democratic Teachers Union (SADTU).
After his release he continued being a member of SADTU but with his
subsequent
promotion to the rank of deputy principal at Isidingo
Primary School, he ceased being a member. It bears noting that after
this release,
he returned to his teaching career at the same school
at which he was stationed at the time of his arrest. In 2018, he was
appointed
deputy principal and also was assigned the position of
Acting Principal for a short period in June 2019. Since his release
he has
been involved in community affairs and has been appointed as
the treasurer of the Little Flower Educare Centre focusing on the
education
needs of young children.
[11]
Reflecting on his period of incarceration and the events leading
thereto, the plaintiff
testified that he bears no ill feeling towards
the complainant and has forgiven her for the allegations levelled
against him. This
statement also emerges in one of the media articles
which featured the plaintiff. He testified of the publicity that
occurred during
the course of his trial and thereafter, which
seriously affected him. However, under cross-examination, he conceded
that not all
the publicity in the media was negative, and that some
articles did mention that he received support during the course of
his trial
from members of his union, as well as from some of the
teaching staff at his school and his family.
[12]
The plaintiff’s evidence remained substantially intact under
cross-examination, with
the thrust of the questions posed to him
suggesting that even if he had been released on bail initially, this
would not have necessarily
silenced the media from reporting on his
ongoing rape trial. He also conceded that there was no evidence to
suggest that the defendants
engineered any of the articles in the
media or were responsible for providing the media with information
that featured in the articles.
It was however not disputed that the
rape case against the plaintiff received considerable publicity in
the press and was also discussed
in the community in which the
plaintiff lived. This concluded the evidence on behalf of the
plaintiff. The defendants elected not
to call any witnesses and
accordingly closed their case.
[13]
In assessing what would constitute a reasonable amount of damages to
be awarded to
the plaintiff for the 388 days he spent incarcerated,
the starting point as stated in
Zealand v Minister for Justice and
Constitutional Development and Another
[2008] ZACC 3
;
2008 (4) SA 458
(CC), para
24 is that ‘[t]he Constitution enshrines the right to freedom and
security of the person, including the right not to
be deprived of
freedom arbitrarily or without just cause’. It would appear from
the plaintiff’s evidence that even though he
was an awaiting trial
prisoner, he was placed in a cell with other inmates who were serving
periods of imprisonment. This in turn
exposed the plaintiff to the
gang culture prevalent in prisons, as well as various acts of
violence.
[14]
As to the factors to be taken into account in determining an
appropriate award for
the deprivation of liberty and the attendant
consequences that arise from an unlawful incarceration, in
Ferdinand
v The Minister Of Police
(628/2014) [2018] ZALMPPHC 58 (7 March
2018) Makgoba JP analysed the existing case law and stated the
following in paragraph 19:
‘
In
deprivation of liberty the amount of damages is in the discretion of
the Court. Factors which play a role 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 of the
deprivation of liberty; the status;
standing; age; health and
disability of the Plaintiff; the extent of the publicity given to
deprivation of the liberty; the presence
or absence of an apology or
satisfactory explanation of the events by the Defendant; and awards
in previous comparable cases.’
[15]
In the present matter, this court has already recorded the seemingly
improper motive
which the investigating officer had in opposing the
bail application of the plaintiff leading to the plaintiff remaining
in custody
until his acquittal. Added to this, was the investigating
officer’s failure to disclose certain crucial information to the
court,
which prejudiced the release on bail of the plaintiff. The
plaintiff, after resuming his career as an educator quickly made up
for
his time in incarceration and was promoted after a few years to
the position of deputy principal. One can only speculate whether
he
would have assumed this higher position earlier had not been for his
unlawful detention.
[16]
The plaintiff testified at some length of the adverse publicity which
accompanied his
appearances in court. Equally important is the strain
which the incarceration had on his personal relationship, ultimately
leading
to its breakdown. It has been held that in cases of unlawful
detention, the awards take care of the
contumelia
, the
embarrassment, deprivation of liberty and the mental agony of the
arrest and detention. In some instances, the arrest and detention
can
bring about the disruption of an accused’s business, professional
practice, employment or career, although in the present case,
as
referred to earlier, the plaintiff has been successful in
resurrecting his teaching career and earning a promotion despite the
setback of his incarceration.
[17]
In
Phungula v Minister of Police
(AR 342/2017) [2018] ZAKZPHC
21 (8 June 2018) bail was posted for the accused by his mother, who
was the complainant in a theft charge
against her son, but the
accused was only released from detention just less than a month
later. Gorven J in considering an appropriate
award for damages, said
the following in paragraph 20:
‘
The
principles are clear. An award must “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.”
Comparable awards cannot be looked to as more than a basic
guide
since facts differ from case to case. An award is “no more than a
crude
solatium
for the deprivation of [liberty]” and courts
are not extravagant in arriving at such awards. All relevant facts
must be taken into
account, not only the length of the deprivation of
liberty.’ (footnotes omitted)
The
court took into account that Mr Phungula was unlawfully detained for
just less than a month and it appeared that he was a member
of a
prison gang and admitted to having been involved in criminal
behaviour prior to his incarceration. By way of contrast, the
plaintiff
in the present matter had only previously been arrested for
public violence following a union demonstration and he was released
after
spending a few hours in jail. He has no other record of being
incarcerated.
[18]
Counsel for the plaintiff referred me to
Woji
v Minister of Police
2015
(1) SACR 409
(SCA) and
Minister
of
Home
Affairs
v
Rahim
and
Others
2016
(3) SA
218
(CC).
These
cases, in addition to
Minister
of Safety and Security v Seymour
2006
(6) SA 320
(SCA)
;
Rudolph and Others v Minister of Safety and Security and Another
2009
(5) SA 94
(SCA)
;
Seria v Minister of Safety and Security and Others
2005
(5) SA 130
(C)
and
Minister
of
Safety
and
Security
v
Scott
and
Another
2014
(6)
SA 1
(SCA)
all
vary in their factual background relating to the period of detention,
the standing of the plaintiffs, their professions and the
circumstances of their arrest. The latter aspect was particularly
relevant in
Minister
of Safety and Security v Tyulu
2009
(5) SA 85
(SCA)
where a magistrate was arrested and detained for about 15 minutes on
account of being drunk in public.   The court
found that an
improper motive led to his arrest, and took into account his standing
in the community in awarding him R15 000 as damages.
[19]
The uncontested evidence of the plaintiff in the present case is that
his arrest and
trial received widespread publicity in the community
and the media. He testified that although he was eventually acquitted
on all
charges, members of the community still recall (on occasion)
the allegations against him. The stigma of having been arrested and
tried for the rape of a minor remains as a permanent stain on the
plaintiff’s character, with his acquittal seemingly relegated
to
insignificance.
[20]
In
Protea Assurance Co Ltd v Lamb
1971 (1) SA 530
(A)
534H-535A, Potgieter JA said the following in relation to general
damages ‘[i]t 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 these
sequelae
of his injuries.’ Counsel for the plaintiff
submitted that having regard to the circumstances relating to the
plaintiff’s detention
for 388 days, an amount of R3,5 million would
be fair and reasonable as compensation. Ms
Khuzwayo
for the
defendants submitted that an amount of R1,2 to R1,4 million would be
reasonable. I should point out that in his amended particulars
of
claim, the plaintiff claimed an amount of R5 million in compensation.
There was nothing in the particulars or in argument before
me that
gave an indication as to how the amount of compensation claimed, was
arrived at. It is precisely this sort of pleading that
caused
Seegobin J in
Latha
and
Another
v Minister of
Police and Others
2019 (1) SACR 328
(KZP) to say the following in
paragraph 13:
‘
.
. . it is fast becoming a notorious fact that claims for personal
injuries are being pitched at such exorbitant levels, thus making
it
extremely difficult for courts to make a proper determination. This
relates not only to claims of the kind under consideration
herein but
also to claims against the Road Accident Fund, as well those arising
out of medical negligence in public hospitals. The
notion seems to be
that since the state is held liable the claims should be as high as
possible. In my view, much of the blame for
this must be laid at the
doors of the claimants' legal representatives and the experts
employed. The difficulty posed in such matters
is that it creates
unrealistic expectations in the minds of the claimants concerned. The
further difficulty with such an approach,
in my view, is that it
loses sight of the fact that such damages are not there to enrich but
to serve as some form of solatium to
an injured person for the pain
and loss suffered. The following words of Holmes J in the matter of
Pitt v Economic Insurance Co Ltd
ring as true today as they
did in 1957:
"I
have only to add that the court must take care to see that its award
is fair to both sides – it must give just compensation
to the
plaintiff but not pour out largesse from the horn of plenty at the
defendant's expense."
[21]
All of the cases referred to earlier differ in their factual matrix
from that of the
present case, however, as stated in
Protea
Assurance Co Ltd v Lamb
1971 (1) SA 530
(A) at 536A-B, these
cases:
‘
.
. . should rather be used to afford some guidance, in a general way,
towards assisting the Court in arriving at an award which is
not
substantially out of general accord with previous awards in broadly
similar cases, regard being had to all the factors which
are
considered to be relevant in the assessment of general damages. At
the same time it may be permissible, in an appropriate case,
to test
any assessment arrived at upon this basis by reference to the general
pattern of previous awards in cases where the injuries
and their
sequelae
may have been either more serious or less than those
in the case under consideration.’
[22]
In assessing what is fair and reasonable as compensation for having
been unlawfully
incarcerated for 388 days, the starting point is that
no person should be deprived of their liberty without just cause. It
is a foundational
value of our constitutional
system.
Where this is underpinned by improper motive, in this case by the
police involved in the investigation of the matter, the
claim of the
plaintiff assumes an even greater significance. It is not disputed
that the plaintiff’s incarceration had a direct
bearing on the
breakdown of his relationship with his fiancée. I have had regard to
the list of cases provided to me by the plaintiff’s
attorney which
have been extracted from the Quantum Year Book. It is impossible to
discern any formula which is applied in arriving
at a ‘flat daily
rate’ in respect of the amount of compensation to be awarded.
Indeed, it would be highly irregular if such a
formula were to
result, as each case is dependent on its unique facts (
Mkwati
v Minister of Police
(2902/2013)
[2018] ZAECMHC 2 (23 January 2018)). In this case I have taken into
account that although the plaintiff was exposed for
a prolonged
period to the horror of having been unlawfully incarcerated in our
prison system, fortunately, he came out of the ordeal
without any
physical scarring. I have no doubt, as stated earlier, that the
mental anguish and trauma he suffered will endure for
the remainder
of his life, or at least for a significant period of time. In
Latha
and Another v Minister of Police and Others
2019 (1) SACR 328
(KZP) Seegobin J awarded compensation of R3,6 million to each of the
defendants following their unlawful incarceration for a period
of
just under seven years. The court made the following observation in
paragraph 8:
‘
While
I consider that the Constitution enshrines the right to freedom and
security of the person, including the right not to be deprived
of
freedom arbitrarily or without just cause, as well as the founding
value of freedom, in my view, courts should be careful not
to
overemphasise the right in order to punish a guilty party unduly. A
delicate balance must be struck between the rights of an aggrieved
party on the one hand and the guilty party on the other, in order to
arrive at an assessment which is fair and reasonable in the
circumstances.’
[23]
In light of the length of the plaintiff’s incarceration, his status
as a qualified
educator, the exposure that was given to his arrest
and conviction and the humiliation suffered by him, all of which are
not disputed
by the defendants, I am of the view that an award of
R1,6 million for general damages constitutes fair and reasonable
compensation
of the ordeal suffered by the plaintiff.
[24]
In the result, I make the following orders:
4.
The First and Third Defendants, jointly and
severally, the one paying the other to be absolved, are directed to
pay, for the unlawful
detention of the Plaintiff for the period 22nd
November 2011 until 14th December 2012 as damages an amount of R 1
668 592,00, made
up as follows:
1.1
General Damages
R 1 600 000.00
1.2
Past Loss of
Income                                         R        8
592.00
1.2
Special Damages – Legal Fees
and cost of
transcripts                                       R       60
000.00
5.
The First and Third Defendants, jointly and
severally, the one paying the other to be absolved, are directed to
pay interest
on the above amount at the prescribed rate from a
date 14 days after date of judgment to date of payment.
6.
The First and Third Defendants, jointly and
severally,
jointly and severally
, are
directed to pay the plaintiff’s costs
of trial such costs to include the costs attendant on the compilation
of the expert reports
of Specialist Psychologist, Dr Chohan as well
as the costs of the actuarial report by Mr Hellig.
M
R CHETTY
Appearances:
For
the Plaintiff:
Mr
V Singh
Instructed
by:                       Viren
Singh Attorneys Durban, Greyville
Tell:                                      031
312 8866
For
the Defendant:
Ms N Z Kuzwayo SC
Instructed
by:                       State
Attorney Durban
Date
of reserved:                 9
& 10
June 2021
Date
of delivery:
2 August 2021