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2023
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[2023] ZAFSHC 3
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Toloane v Minister of Police (433/2019) [2023] ZAFSHC 3 (13 January 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 433/2019
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
TSHIDISO
PAUL TOLAONE
PLAINTIFF
and
THE
MINISTER OF POLICE
DEFENDANT
HEARD
ON
: 16 AUGUST 2022
BEFORE:
CHESIWE, J
DELIVERED
ON:
This
judgment was handed electronically by circulation to the parties’
representatives by email. The date and time for hand-down
is deemed
to be at 13h00 on 13 January 2023.
[1]
The Plaintiff issued combined summons to sue the
Defendant for damages in the amount of R1 415 600.00, for
wrongful and unlawful
arrest and for being kept in detention for a
period of 66 days, allegedly on a charge of business robbery and
theft of motor vehicle,
wherein a firearm was used.
[2]
The claim is based on the premises of vicarious
liability, it being that at the time of arrest, the Police Officers
were employed
by the Defendant and committed the alleged unlawful act
during the course of their employment and whilst in the execution of
their
duties. And that they acted unlawful as stated in the
particulars of claim as follows:
“
10.1
Constable Mokone and his colleague arrested and detained the
Plaintiff without reasonable or probable cause;
10.2 Constable Thabang
Mokone and his colleague had no reasonable grounds to suspect that
the Plaintiff did commit any criminal
offences accused of;
10.3 The said
Investigating officer misled the Court that a case against the
Plaintiff was strong and that the latter” bail
application had
to be declined.”
[3]
According to the Plaintiff as a consequence of the
above, he suffered the following:
“
11.1
Violation of his freedom and human dignity;
11.2 Contumelia’
11.3 Emotional pain
and suffering;
11.4 Deprivation of
his property and violation of privacy; and
11.5 Loss of income, 2
month salary.”
[4]
The Plaintiff in the particulars of claim attached
to the summons alleged that on the 10 July 2018, he was at a surgery
in Thaba
Nchu when he was arrested by two officials, and among them
was Constable Mokone. On 8 August 2018, he appeared at the Magistrate
Court for a bail hearing, which was postponed to 27 August 2018 for a
formal bail hearing. The bail was opposed by the State. And
same was
denied. On the 13 September 2018 the charges against the Plaintiff
were withdrawn by the State due to lack of evidence
that linked the
Plaintiff to the offences he was charged with.
[5]
In terms of Rule 33 (4) and the Pre-Trial minutes,
as well as submissions placed on record by the Legal Representatives
of both
parties, it was agreed that merits and quantum will not be
separated and will be adjudicated simultaneously.
[6]
The Defendant’s bundle was admitted by
agreement between the parties as exhibits that contains the case
docket CAS 35/07/2018.
It included the first and additional
statements, as well as the warning statements of the Plaintiff.
[7]
The Defendant pleaded that the arrest was lawful
and was effected in term of Section 40 (1) (b) of the Criminal
Procedure Act of
1977, (CPA) as Mokone had a reasonable and bona fide
belief and/or suspicion that the Plaintiff had committed criminal
offence
as referred to in Schedule 1 of the CPA.
[8]
This court has to therefore determine whether the
arrest and the detention was lawful. Whether the arresting officer
had reasonable
suspicion that the Plaintiff have committed the
offence. And whether the Defendant is liable for any damages suffered
by the Plaintiff,
as well as determine the quantum of damages
suffered by the Plaintiff.
[9]
The Plaintiff testified and called no further
witnesses. The Defendant called Constable Mokone to testified and
also no further
witnesses were called.
PLAINTIFF’S
EVIDENCE
[10]
The Plaintiff testified as follow: On 10 July
2018, he was arrested at a surgery in Thaba Nchu. He was accompanied
by a friend,
a Thandaza Mathosa. He was informed by Constable Mokone
that he was a suspect in a business robbery and was thereafter
arrested.
The Plaintiff was kept at Selosesha Police Station. He
appeared on 12 July 2018 for a bail hearing. He was in court again on
8
August 2018, for a formal bail hearing. According to the Plaintiff,
bail was denied due to Detective Mokone’s evidence, in
that the
Plaintiff would threatened the complainant and that the State had a
strong case against the Plaintiff.
[11]
The Plaintiff remained in custody for a period of
66 days. Plaintiff said while in custody at Selosesha Police Station,
he did not
have warm clothes to wear; the cells were dirty; the
blankets were dirty; the water was cold and he could not wash
himself; the
food was bad and they were six (6) up to seven (7)
people in one cell. He did not have visitors while in custody. He was
transferred
to Grootvlei Correctional Centre, were the living
conditions were even worse as they were up to 70 in one cell.
Plaintiff said
he was released when the charges against him where
withdrawn on 13 September 2018.
[12]
Under cross-examination the Plaintiff denied that
the Complainant correctly identified him as the suspect, as the
Complainant had
said in her statement that the suspect’s face
was covered. The Plaintiff denied that he is the only person who is
slender
and short and wore black sneakers, as pointed out by the
Complainant. The Plaintiff indicated that it was possible that he
might
have a twin or someone that looks like him. Plaintiff mentioned
that the police, specifically Mokone, should have investigated the
matter first, before arresting him. The Plaintiff explained that he
told Mokone that he was employed as a taxi driver and worked
for
Papie Kgasapane. He said taxi drivers do not get a salary advices and
thus it was difficult to prove that he was employed.
He insisted that
the bail was denied due to Detective Mokone’s evidence. That
was the Plaintiff’s evidence.
DEFENDANT’S
EVIDENCE
[13]
Detective Mokone testified as follow: On 10 July
2018, he was on duty when he received a call from the Complainant’s
father
that the Complainant was at the surgery of Dr Thekisho and saw
the suspect that robbed her on 7 July 2018. He went to the surgery
where he met the Complainant. The Complainant told him that the
suspect that robbed her on 7 July 2018 was in the surgery. He asked
the Complainant to show him the suspect. The Complainant pointed out
the Plaintiff to him. He called out the Plaintiff to come
outside. He
explained to the Plaintiff the reason he called him outside. That the
Complainant had identified him as the suspect
that robbed her on 7
July 2018. Mokone said the Plaintiff informed him that he had nothing
to explain and will speak at court.
He said because the offence was a
serious offence and that the Complainant pointed out the Plaintiff,
he could not do much but
arrest the Plaintiff. He arrested the
Plaintiff and charged him the next day, that is on 11 July 2018.
[14]
Mokone
further testified that he was a witness in the bail application. He
was also the Investigating Officer and did not have a
say in the bail
application nor its refusal. He completed the required bail
information form,
[1]
as the
Investingating Officer. He conducted further investigation by
checking the finger prints in the vehicle, including the CCTV
at the
complex. He could not find anything that linked the Plaintiff. Mokone
said he had a bona fide believe that the Plaintiff
was the suspect.
And that the decision not to prosecute was taken by the Prosecutor.
That was the defendant’s evidence.
[15]
Adv. Mazibuko, Counsel on behalf of the Plaintiff,
submitted in oral argument that: The Defendant admitted the arrest
and had the
onus to justify the arrest. The statements of the
Complainant, that is the
A1
and
the additional statements both mentioned that the suspects’
faces were covered. He indicated that the issue of the sneakers
was
dealt with, as the Plaintiff explained that there was nothing special
about his sneakers and that there are many people who
are slender and
short. Counsel submitted that the Plaintiff only had to prove that
the arrest was unlawful. And that the conduct
of Mokone was unlawful
by having infringed on the Plaintiff’s Constitutional Rights to
freedom. Counsel concluded that the
legislature was clear in Section
40(1)(b) of the Criminal Procedure Act, 51 of 1977 (herein after
referred to as the CPA), that
an arresting officer should on
reasonable suspicion arrest a suspect. According Adv. Mazibuko stated
that, in this instance, Mokone
did not have any reasonable
suspicions.
[16]
Adv. Bomela, Counsel on behalf of the Defendant
submitted that had the Plaintiff not been arrested, he would not have
been detained.
Counsel mentioned that based on Mokone’s
evidence and the alleged offence committed, which in this case is a
criminal offence
referred to in Schedule 1 of the CPA, namely, armed
robbery and hijacking. Counsel mentioned that based on the alleged
offence,
Plaintiff could not get bail. The bail form as completed by
Mokone, had all the boxes ticked. Counsel indicated that the
Defendant
pleaded that the arrest was lawful and it was effected in
terms of Section 40(a)(b) of the CPA and that it was reasonable and
bona fide.
LEGAL FRAMEWORK
[17]
The Plaintiff to institute a claim for damages for
unlawful arrest and detention has to meet specific requirements,
namely:
(a) The Plaintiff must
establish that his liberty has been interfered with;
(b) The Plaintiff must
establish that this interference occurred intentionally;
(c) The Plaintiff
needs to show that the Defendant acted intentionally in depriving his
liberty and that the Defendant knew that
it was wrongful to do so;
(d)
The Plaintiff must establish that the conduct of the Defendant must
have caused, both legally and factually, the harm for which
compensation is sought.
[2]
[18]
Section 40
of the
Criminal Procedure Act 51 of
1977
provides that;
“
(1)
Peace Officer may without a Warrant arrest a person –
(a) Who commits or
attempts to commit any offence in his presence.
(b) Whom he reasonably
suspects of having committed an offence referred to in schedule 1,
other than the offence of escaping from
unlawful custody.
(c) ……….
(d) ……….
(e) Who is found in
possession of anything which the police officer reasonably suspects
to be stolen or property dishonestly obtained
and whom the Peace
Officer reasonably suspects of having committed an offence with
respect to such a thing.
(2) If a person may be
arrested under any law without warrant and subject to conditions or
the existence of circumstances set out
in that law, any peace officer
may without warrant arrest such person subject to such conditions or
circumstances.”
[19]
Section 41
of the CPA further provides that;
“
(1)
A Peace Officer may call upon any person –
(a) Whom he has power
to arrest,
(b) Who is reasonably
suspected of having committed or of having attempted to commit an
offence.
(c) Who in the opinion
of the Peace Officer may be able to give evidence in regard to the
commission or suspected commission of
any offence, to furnish such
Police Officer with full name, address, and if such person fails to
furnish his full name and address,
the Peace Officer may fourth with
and without a warrant arrest him, or of such person furnishes to the
Peace Officer a name or
address which the Peace Officer reasonably
suspects to be false, the Peace Officer may arrest him without
warrant and detain him
for a period not exceeding twelve hours until
such name and address is verified.”
At the time of the arrest
the peace officers were acting within the course and scope of
employment.
[20]
The Plaintiff testified as a single witness. Even
though in his evidence in chief, the Plaintiff made mention of a
friend who was
with him on the night the offence was committed and
that same friend was with him at the surgery, the Court would have
expected
the Plaintiff to have informed Mokone about this friend and
brought the friend before the Court to corroborate his version. Not
only did the Plaintiff fail to inform Mokone about this friend, he
also failed to call this friend to testify. Instead the Plaintiff
told Mokone he will rather give evidence in court.
[21]
The Plaintiff in his evidence-in-chief could not
explain the issue of his employment. When he was arrested, he
informed the arresting
officer he was unemployed. In the Particulars
of Claim, the Plaintiff avers that he was employed as a taxi driver
and during his
evidence-in-chief, he explained that he was a taxi
driver and that the arresting officer told the Plaintiff that he was
not a registered
employee. The Plaintiff explained that while he was
in custody he could not obtain proof of employment and that the
employer had
already replaced him.
The Plaintiff during the
bail application was legally represented. He could have easily
requested his legal representative to request
proof of employment
from the employer. Even though the Bail Information Form on the
question of employment, the box was ticked
“NO”. Thus
confirming again that the Plaintiff failed to produce evidence of
employment. The Plaintiff in this instance
failed to provide any
evidence with regard to his employment.
Furthermore,
the Plaintiff’s evidence about being mistaken with his twin, or
there may be someone who looks like him, cannot
hold. The Plaintiff’s
explanation on these aspects was incoherent and not clear, neither
consistent. In my view this is evidence
that the Plaintiff could have
cleared with the arresting officer, or even with the Investigating
Officer, so that such information
could be followed up.
[22]
The evidence of the Defendant was placed before
Court by Constable Mokone. Mokone at that stage had to weigh and
consider the information
given to him on whether or not to arrest the
Plaintiff. As already stated that the offence was an offence as
referred to in a Schedule
1 offence, which involved armed robbery and
hijacking, his evidence was clear that he arrested the Plaintiff in
the presence of
the Complainant. Based on the investigation of the
crime and being involved from the first day when he was called to the
scene,
Mokone had reasonable suspicions to arrest the Plaintiff when
the Complainant informed him and described the sneakers and the
physique
of the Plaintiff that he had to arrest the Plaintiff. In my
view, the offence was still fresh in the Complainant’s mind as
it happened within two days of the arrest of the Plaintiff.
Therefore, Mokone had no reason to doubt the Complainant’s
information.
[23]
It
is trite that the onus rests on the Defendant to justify an arrest.
In
Minister
of Law and Order and Others v Hurley and Another
,
[3]
Rabie CJ stated that: “
An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems fair and just to require
that the
person who arrested or caused the arrest of another person should
bear the onus of proving that his action was justified
in law.”
[24]
While
it is clearly established that the power to arrest may be exercised
only for the purpose of bring the suspect to justice,
the arrest is
only one step in that process.
[4]
Once an arrest has been effected, the Peace Officer must bring the
arrestee before court as soon as reasonably possible and at
least
within 48 hours (depending on court hours) once that has been done
the authority to detain the suspect further is then in
the discretion
of the court and what happened in court cannot be placed squarely on
the Defendant.
[25]
It is common cause that the Plaintiff was arrested
for being a suspect in an armed robbery and hijacking. According to
the Defendant,
the Plaintiff was identified within two days after the
offence was committed and thus the issue of the sneakers and the
physique
of the Plaintiff was still fresh in the Complainant’s
mind. In my view, the Defendant’s arrest of the Plaintiff was
in terms of section 40 of the CPA. Where an arrest was effected by
the employees of the Defendant without a warrant of arrest,
this will
fall within the provisions of Section 40(1)(a) read with Section
40(1)(h) of the CPA.
[26]
The relevant contents of the docket with regard to
the Complainant’s statement, Exhibit A, page 43 of Defendants’
bundle
are noted as follows:
2
“
ON
SATURDAY 2018- 07-07 AT ANOUT 18.30 WHEN I WAS ROBBED OF THE CAR AND
MONEY, ONE OF THE SUSPECTS THAT WAS SITTING WITH ME AT THE
BACK OF
THE CAR WEARING BLACK SNEAKERS, DARK HOOD AND HE WAS COVERING HIS
MOUTH AND NOSE WTH BLACK AND WHITE BANDANA BUT I COULD
SEE HIS UPPER
PART OF THE FACE, HE WAS SLENDER AND SHORT HEIGHT.”
3
“
ON
TUESDAY 2018-07-10 AT ABOUT 13.20 I WENT TO DR THEKISHO AT SELOSESHA
TO CONSULT WITH THE DOCTOR. AS I ENETRED THE RECEPTION ROOM
I THEN
NOTICED THE SAME AFRICAN MALE WHO HAD POINTED ME WITH A FIREARM AND
ROBBED ME- ON SATURDAY 2018-07-07. HE WAS STILL WEARING
THE BLACK
SNEAKERS THAT HE WORE ON THE DAY OF THE ROBBERY.”
4
“
I
DID NOT MAKE THAT PERSON AWARE THAT I RECOGNISE HIM BUT HE BECAME
VERY SHOCKED TO SEE ME BUT DID NOT LEAVE THE PLACE. I PROCEEDED
TO
THE RECEPTION FOR ASSIATNCE THEN AFTER I WENT OUT AND CALLED MY
FATHER IN ORDER FOR HIM TO CALL THE POLICE. THE POLICE CAME
AND I
POINTED THE PERSON TO THE POLICE AND THEY TOOK HIM AWAY.”
[27]
The Complainant’s statements (
A1
and Additional Statements
) clearly
showed that the suspect was identified within two days after the
offence was committed and that she explained that the
sneakers were
the same as those that were worn on the day of the offence. The
Complainant was with the perpetrator in the back
of the vehicle for a
period sufficient enough to recognise the person’s physique,
the sneakers and well as the upper part
of his face. Within two days
she was able to indicate that the person in the surgery was the
Plaintiff. Mokone on receipt of the
call from the Complainant’s
father, was obliged to act as the offence committed was quiet serious
and that it involved armed
robbery and hijacking. For the fact that
the victim was a woman, that worsens the situation. Mokone cannot not
be faulted for having
acted by arresting the Plaintiff and therefore
acted lawful.
[28]
In
Minister
of Safety and Security v Magagula
,
[5]
the Court quoted with approval from
Shabaan
Bin Hussein and Others v Chong Fook Kam and Another
[1969] 3 ALL ER
1627
as follows: “
A
suspicion in its ordinary meaning is a state of conjecture or surmise
where proof is lacking; ‘I suspect but I cannot prove’.
Suspicion arises at or near the starting point of an investigation of
which the obtaining of prima facie proof is the end.”
[29]
In
Duncan
v Minister of Law and Order
,
[6]
the court held that the jurisdictional facts which must exist before
the power conferred by Section 40 (1)(b) defence are that
(i) the
arrestor must be a peace officer; (ii) the arrestor must entertain a
suspicion; (iii) the suspicion must be that the suspect
(the
arrestee) committed an offence referred to in Schedule 1; and (iv)
the suspicion must rest on reasonable grounds. Once these
jurisdictional facts for arrest have been established, the discretion
arises. Which in this instance Mokone had established and
as such,
the discretion to arrest was effected.
[30]
In
Shidiack
v Union Government (Minister of the Interior)
[7]
,
Innes ACJ stated as follows:
“
Now
it is settled law that where a matter is left to the discretion or
the determination of a public officer, and where his discretion
has
been bona fide exercised or his judgement bona fide expressed, the
Court will not interfere with the result. Not being a judicial
functionary no appeal or review in the ordinary sense would lie; and
if he has duly and honestly applied himself to the question
which has
been left to his discretion, it is impossible for a Court of Law
either to make him change his mind or to substitute
his conclusion
for his own. There are circumstances in which interference would be
possible and right. If for instance such an
officer had acted mala
fide or from ulterior and improper motives, if he had not applied his
mind to the matter or exercised his
discretion at all, of if he had
disregarded the express provisions of a statute – in such cases
the Court might grant the
relief. But it would be unable to interfere
with a due and honest exercise of discretion, even if it considered
the decision inequitable
or wrong.”
[31]
Mokone in this instance had established that a
suspicion existed, as an arresting office he had to exercise his
discretion to arrest
and that discretion, in my view, was exercised
rationally. Based on these grounds, which Mokone had met, he had to
arrest the Plaintiff.
Mokone did not know the Plaintiff and had no
reason to act with dishonesty or inappropriately by arresting a
person that he did
not know. I therefore, find that the Defendant has
established all the jurisdictional facts based on Section 40 (1)(b)
and that
as the arresting officer properly exercised his discretion
to arrest the Plaintiff and this Court will not interfere with that
discretion to arrest. The arrest was therefore lawful.
DETENTION
[32]
It is common cause that the Plaintiff was arrested
without a warrant of arrest by Constable Mokone. It is also common
cause that
Mokone is still in the employment of the Defendant. The
Plaintiff’s contention is that Mokone should have foreseen that
after
the first appearance the case would be remanded for a formal
bail application. As a consequence of Mokone’s conduct,
Plaintiff’s
bail was denied. The Defendant on the other hand
asserts that post the first court appearance, such detention was at
the discretion
of the Court of which the police played no part in
keeping the Plaintiff in custody. Further that the detention of the
Plaintiff
falls within the ambit of the Minister of Justice and that
the Defendant had no part in keeping the Plaintiff in custody.
[33]
Section 50 of the CPA provides as follows:
“
50
Procedure after arrest - (1)(a) Any person who is arrested with or
without a warrant for allegedly committing an offence, of
for any
other reason, shall as soon as possible be brought to a police
station or, in the case of an arrest by warrant, to any
other place
which is expressly mentioned in the warrant.”
[34]
The
Plaintiff was brought before court for his first appearance on 12
July 2018, and that was within the required 48 hours of an
arrested
accused person. The Plaintiff from the time of his arrest, was kept
at the Selosesha Police Station. After his bail was
denied, he was
kept at Grootvlei Correctional Centre. In
Minister
of Safety and Security v Sekhoto and Another
,
[8]
the court stated as follows:
“
Once
an arrest has been effected the peace officer must bring the arrestee
before court as soon as reasonably possible and at least
within 48
hours (depending on court hours). Once that has been done the
authority to detain that is inherent in the power to arrest
has been
exhausted. The authority to detain the suspect further is then within
the discretion of the court.”
[35]
The Plaintiff was throughout informed of his
rights, including his rights when the warning statement was taken
(Exhibit 3 page 38 of Defendant’s
Bundle).
The Plaintiff had Legal
representation at the bail application. The Plaintiff was brought
before court within the required 48 hours.
The Plaintiff averments
that he was never told of his rights cannot therefore not stand.
[36]
With
regard to further detention post-first court appearance, of which the
Defendant denied liability, Mokone as an employee of
the Defendant,
was legally justified to arrest and detain the Plaintiff in terms of
Section 50 (1)(a) of the CPA until his first
appearance. Due to the
seriousness and nature of the offence, that is armed robbery and
hijacking. The Plaintiff bore the onus
to show exceptional
circumstances to be released on bail. If the Plaintiff failed to show
that any exceptional circumstances existed
during the bail
application, it is not the Defendant that has to be held liable after
bail was denied. The court had the discretion
to keep the Plaintiff
in custody and not the Defendant. Therefore the authority to detain a
suspect further is within the discretion
of the court.
[9]
DAMAGES
[37]
I now turn to deal with the issue of quantum. The
assessment of damages for unlawful detention of an aggrieved party is
not to enrich
such a party, but to offer some much needed solatium
for the aggrieved party’s injured feelings, as well as the
deprivation
of his/her liberty. The court has to determine the extent
to which the damage was inflicted on the aggrieved person. It is
indeed
difficulty for the court to make a definite determination in
respect of an award for damages for injured feelings or deprivation
of damages, other than to look at comparable cases.
[38]
Adv. Mazibuko in oral argument submitted that the
loss of income of the Plaintiff was not properly proven. He indicated
that even
if the loss of income was not proven, the Plaintiff was
deprived of his liberty and that the conditions of his detention in
custody
was undesirable. Counsel submitted that an appropriate amount
that the court can award would be R25 000 per day for the period
of 66 days that Plaintiff spent at Selosesha Police Station and
Grootvlei Correctional Centre.
[39]
Adv. Bomela submitted that the Plaintiff has
conceded that he was unemployed and thus suffered no damages. He
stated that the court
is not to award any damages post the
Plaintiff’s first appearance. Counsel submitted that if the
court is to award damages
to the Plaintiff, then the Court must place
a value judgment on the Plaintiff, that is his standing in the
community, personal
circumstances, his medical condition and whether
he was denied medical attention or suffered any trauma while in
custody. Counsel
submitted that a reasonable amount for the
Plaintiff’s injured feelings and deprivation of his liberty
would be an amount
of R150 000.
[40]
In
Sandler
v Wholesale Coal Suppliers Ltd
[10]
, it was stated that:
“
It
is no doubt exceedingly difficult to value damage in terms of money,
but that does not relieve the Court of the duty of doing
so upon
evidence placed before it. This is a principle which has been acted
on in several cases in South African Courts.”
[41]
The
Plaintiff placed no evidence before this Court for loss of income and
it cannot be said he suffered damages in terms of his
income. In
Rudman
v Road Accident Fund
[11]
,
the
court said: “
there
must be proof that the reduction in earning capacity indeed gives
rise to pecuniary loss.”
[42]
The Plaintiff while in custody suffered no trauma,
nor did the Plaintiff prove any medical condition that he has and did
not get
medical attention for, except that the Plaintiff complained
about the food, clothes, blankets and conditions of the cells as well
as overcrowding in the cells. I pause to mention that I have on
several occasions conducted Judicial Inspection at Grootvlei
Correctional
Centre and in my view the facility is well maintained.
The prisoners as well as those awaiting trial are well taken care
off. They
all get three meals per day and the medical facility is up
to standard. Furthermore, overcrowding of the prison cells is no
secret
as it is a well-known issue.
[43]
It
is now accepted that in the assessment of these kinds of damages,
which cannot be assessed with any amount of mathematical accuracy,
the court has a wide discretion.
[12]
[44]
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.
[13]
Furthermore, a claim for damages against the Defendant should not be
allowed to triumph out of control, as employees such as Mokone
will
be unable to do their work for fear of unreasonably high claims for
damages against the employer, in this case the Defendant.
.
[45]
In
Minister
of Safety and Security v Seymour
[14]
, the court said the
following:
“
The
assessment of awards of general damages with reference to awards made
in previous cases is fraught with difficulty. The facts
of a
particular case need to be looked at as a whole and few cases are
directly comparable. They are a useful guide to what other
courts
have considered to be appropriate but they no higher value than
that.”
At page 326, paragraph
[20], the learned Judge went on to express the view that when
assessing damages for unlawful arrest and detention,
Courts are not
extravagant in compensating the loss as there are many legitimate
calls on the public purse to ensure that other
rights that are no
less important also receive protection.
[46]
The Court will always be guided by the facts of
each case and not taking its eyes off the purpose and object of the
protection of
such rights as enshrined in the Constitution. In this
instance, I shall be guided by the particular facts and circumstances
of
the case in determining the appropriate amount of damages.
[47]
Taking
into consideration that deprivation of one’s liberty is always
a serious matter and bearing in mind that any damages
awarded will be
from the public purse, the principle on awarding damages should be
fair to both sides. Compensation must be given
to the Plaintiff, but
not to pour out largesse from the horn of plenty
[15]
.
[48]
Both
parties made reference to
De
Klerk v Minister of Police,
[16]
in which the Plaintiff was awarded an amount of R300 000. In
Minister
of Safety and Security v Seymour,
[17]
the
Supreme Court of Appeal reduce a R500 000 award to R90 000,
as the Plaintiff did suffer any degradation in respect
of an arrested
person nor suffer any financial damages.
[49]
In
Mahlangu
and Another v Minister of Police,
[18]
the Plaintiffs were tortured and forced to make confessions by the
police. The Constitutional Court awarded an of R550 000,00
&
R500 000,00 towards the Plaintiffs.
Mahlangu
in this regard is distinguishable in that the Plaintiffs were
tortured and as result suffered trauma.
[50]
The Plaintiff in my view did not suffer any
damages that warrants an amount of R1 415 600,00. Even
though Counsel for
the Plaintiff submitted that the amount to be
awarded should be R37 500 multiplied by the 66 days, which
equals R2 475 000,00.
This will be a typical case of an
unfair and unjust award.
[51]
Having considered the facts as well as the
circumstances of the Plaintiff post the first court appearance, in my
view an amount
of R250 000 would be fair and appropriate to
compensate the Plaintiff. As stated above that deprivation of a
person’s liberty
is a serious matter.
COSTS
[52]
The Plaintiff seeks costs for the action. The
Plaintiff is partially successful in respect of quantum. I find no
reason why the
costs should not be allowed.
[53]
I accordingly make the following order:
1.
The Defendant is liable to pay the Plaintiff damages he suffered for
the detention post the first appearance;
2.
The Defendant shall pay the Plaintiff an amount of R250 000 for
damages suffered as a result of the detention;
3.
The Defendant shall pay the Plaintiff’s costs on a party and
party scale.
S.
CHESIWE, J
On
behalf of the Plaintiff:
Adv. M S Mazibuko
Instructed
by:
Mokhomo Attorneys
BLOEMFONTEIN
On
behalf of the Defendant:
Adv. L R Bomela
Instructed
by:
State Attorney
BLOEMFONTEIN
[1]
Thaba Nchu Cas 35/07/2018, A8 page 36 of Defendant’s Bundle.
[2]
See De Klerk v Minister of Police (CCT 95/18)
[2019] ZACC 32
;
2019
(12) BCLR 1425
(CC);
2020 (1) SACR 1
(CC);
2021 (4) SA 585
(CC) (22
August 2019).
[3]
1986
(3) SA 568
(A) at 589E-F
[4]
Minister
of Safety and Security v Sekhoto and Antoher
(2011 (1) SACR 315
(SCA);
[2011] 2 All SA 157
(SCA);
2011 (5) SA 367
(SCA))
[2010]
ZASCA 141
; 131/10 (19 November 2010)
[5]
2017 JDR 1486 (SCA) at para 9
[6]
1986 (2) SA 805
(A) at 818 g-h
[7]
1912 AD 642
at 651 – 652
[8]
(2011 (1) SACR 315
(SCA);
[2011] 2 All SA 157
(SCA);
2011 (5) SA 367
(SCA))
[2010] ZASCA 141
; 131/10 (19 November 2010)
[9]
The minister of Safety and Security v Sekhoto and Another
Supra
[10]
1941 (A) 194 at 198
[11]
2003 (2) SA 234
(SCA) para [11]
[12]
See AA Mutual Insurance Association Ltd v Maqula
1978 (1) SA 805 (A)
[13]
Rudolph and Others v Minister of Safety and Security and Another
2009 (5) SA 94
(SCA) ([2009] ZASCA 39) paras 26 – 29). [22]
[14]
2006 (6) 320 (SCA) paragraph [17] at 325
[15]
Pitt v Economic Insurance Co. Ltd
1957 (3) SA 284
(N) at 287 E- F
[16]
2021 (4) SA 585 (CC)
[17]
(295/05 [2006] ZASCA.
[18]
2021 (7) SACR 595
(CC)