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[2023] ZAFSHC 175
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Masiteng v Minister of Police (A139/2022) [2023] ZAFSHC 175 (12 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number: A139/2022
In
the matter between:
NTJANYANA
DANIEL MASITENG
Appellant
And
THE
MINISTER OF POLICE
Respondent
CORAM:
DANISO, J
et
RANTHO, AJ
JUDGMENT
BY:
RANTHO, AJ
HEARD
ON:
30 JANUARY 2023
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 12 May 2023 at 15h30.
Introduction
[1]
The appellant (plaintiff in the court a quo) was
arrested for charges
relating to assault by members of the respondent (defendant in the
court a quo) on 29 September 2019 at approximately
22h00 at
Verkykersdorp. He was subsequently detained at police cells in Warden
pending his court appearance.
[2]
He was taken to court on the morning of 01 October 2019
and
subsequently released from police custody at 16H00 without appearing
in court, following the withdrawal of the charges levelled
against
him. The appellant spent a period of 42 hours in detention.
[3]
On 16 March 2020 the appellant instituted action
proceedings against
the defendant on the basis of a claim founded on unlawful arrest and
detention. He claimed damages in the amount
of R 210 000.00 (two
hundred and ten thousand rand) for deprivation of freedom;
contumelia
; discomfort, emotional stress and embarrassment.
[4]
Defendant conceded to the merits of the case at the commencement
of
the trial, leaving the court
a quo
with only having to determine the issue of quantum in relation to the
damages suffered by the appellant as a result thereof.
Findings
by the court a quo
[5]
The
court
a
quo
noted that the plaintiff did not adduce evidence suggesting that his
good name was tarnished as a result of the arrest as well
as the
extent of the emotional stress and psychological trauma he suffered
during his arrest and detention.
[1]
In arriving at this conclusion, the court a quo considered the
following evidence adduced by the plaintiff during trial:
[2]
(a)
That he was arrested in front of his wife and children;
(b)
Whilst been transported to the police cells after his arrest, he was
seated at the back
of the police van and thereafter transported to
court in the enclosed together with other detainees;
(c)
On being asked frequently about what impact did the arrest and
detention had on his
emotional state, he expressed a feeling of being
hurt as a result of having been falsely accused of something he did
not do (i.e.
assault);
(d)
He was detained in a cell with water running on the floor and forced
to share a blanket
with other detainees on a small mat and was
provided two meals a day.
[6]
The court
a
quo
further
considered the circumstances under which the plaintiff lived and the
conduct of the defendant’s officials at the time
of his arrest
and detention so as to establish the extent of damages suffered as
result thereof.
[3]
[7]
In
conclusion, the court a
quo
held that that the plaintiff’s constitutional right to liberty
had been infringed for which he was entitled to relief. It
further
concluded that the plaintiff proved his case, albeit to a very
limited extent, in respect of a claim founded on
contumelia
.
[4]
[8]
In exercising its discretion as to what it deemed
appropriate to
award the appellant for damages in the circumstances, the court
a
quo
ordered the defendant to pay to the plaintiff the amount of R 30
000.00 (thirty thousand rand with interest plus costs.
[5]
[9]
It needs to be pointed out that the court
a
quo
expressed its displeasure on the fact that the plaintiff instituted
his claim in the Regional Court whereas same could have been
competently dealt with by the District Court and awarded the costs of
suit on a Magistrate Court scale.
[6]
Grounds
of appeal
[10]
The appellant
launched an appeal against the judgment of the court
a quo
on
the following grounds:
(a)
The court materially erred and misdirected itself by awarding the
amount of R30 000.00 in
damages suffered by the appellant for
unlawful arrest and detention for a period of 42 hours;
(b)
The court materially erred and misdirected itself in assessing the
quantum, alternatively,
the court did not exercise its discretion
judicially and had been influenced by applying the wrong principles
and thus ignored
/ negated the principles and case law relied upon by
the appellant;
(c)
The court erred and misdirected itself by not applying the
stare
decisis
rule and subsequently erred in its judgment and further
negated the applicable law argued on behalf of the appellant;
(d)
The court ignored the principles laid down in previous cases, that
suggest, that the law
always regard the deprivation of liberty as a
serious injury;
(e)
The court did not consider the previous awards handed down in case
law relied upon by the
appellant;
(f)
There is striking disparity in the award granted by court a quo and
awards granted
in the previous High Court and Supreme Court of Appeal
matters relied upon by the appellant; and
(g)
The amount of R30 000.00 with reference to previously pointed out
case law and the merits
of the matter, is inappropriate and does not
reflect the importance of the right to liberty.
[11]
It is
therefore
apparent from the appellant’s
notice of appeal that the appeal is mainly directed at the amount
awarded by the court
a quo
in respect of the quantum only.
Issues
[12]
This court is required to determine as to whether, the amount
awarded
to the appellant by the court
a quo
in compensation for the
damages suffered as a result of unlawful arrest and detention was
just, taking into account all the relevant
facts and evidence
presented before it
.
Legal
principles relating to deprivation of liberty
[13]
The deprivation of liberty is indeed deemed a
serious
matter in our constitutional democracy. In cases of non-patrimonial
loss where damages are claimed the extent of damages cannot
be
assessed with mathematical precision.
In
such cases the exercise of reasonable discretion by the court and
broad general considerations play a decisive role in the process
of
quantification.
The
plaintiff is required to adduce evidence which will enable a
court to make an appropriate and fair award.
[7]
[14]
In making determination as to the amount awarded in damages arising
from deprivation of
liberty, the court should consider the following
relevant factors:
[8]
i.
circumstances under which the
deprivation of liberty took place.
ii.
the conduct of the defendants; and
iii.
the nature and duration of the
deprivation.
[15]
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.
[9]
Whether
to interfere with the court
a
quo
’s decision
?
[16]
It is trite that a court of appeal may interfere with the decision of
the lower court
only when it appears that the lower court had not
exercised its discretion judicially, or that it had been influenced
by wrong
principles or a misdirection on the facts, or that it had
reached a decision which in the result could not reasonably have been
made by a court properly directing itself to all the relevant facts
and principles.
[10]
[17]
In
S
v Francis
1991
(1) SACR 198
(A
)
,
Smalberger
JA summarised the approach of an appeal court to findings of fact by
a trial court, at 198i-199a:
“
The
powers of a Court of appeal to interfere with the findings of fact of
a trial Court are limited. In the absence of any misdirection
the
trial Court’s conclusion, including its acceptance of a
witness’ evidence, is presumed to be correct. In order
to
succeed on appeal, the appellant must therefore convince the Court of
appeal on adequate grounds that the trial Court was wrong
in
accepting the witness’ evidence- a reasonable doubt will not
suffice to justify interference with its findings. Bearing
in mind
the advantage which a trial Court has of seeing, hearing and
appraising a witness, it is only in exceptional cases that
the Court
of appeal will be entitled to interfere with a trial Court’s
evaluation of oral testimony.”
[18]
The Supreme Court of Appeal (“SCA”) held as follows in
Ngubane v South African Transport Services
[1990] ZASCA 148
;
1991 (1) SA
756
(A) at 786H
:
“
On
appeal this court is loath to substitute, in the absence of any
misdirection or irregularity, its estimate of compensation for
general damages unless there is a marked disparity between its
assessment and the award of the trial court… This reluctance
is in part due to the fact that a judge of first instance is immersed
in the atmosphere of the trail and is best able to gauge
the extent
of a plaintiff's disability, loss of amenities and capacity to endure
hardship, pain and suffering.
”
Application
to the facts
[19]
The appellant’s argument is mainly that:
(a)
The award made by the court
a quo
is not reflective of the
importance of the right to liberty;
(b)
In assessing the damages suffered by the appellant, the court
a
quo
misdirected itself and/or failed to exercise its discretion
judicially; and
(c)
The court
a quo
failed to apply the
stare decisis
rule
in that there was a striking disparity in the amount awarded by the
court
a quo
in comparison with the previously decided cases of
similar nature by the higher courts.
[20]
In
Minister
of Safety and Security v Seymour
[11]
,
Nugent JA relied on the earlier decision by the Appellate Division
and said:
“
As
pointed out by Potgieter JA in Protea Assurance Co Ltd v
Lamb,
[12]
Potgieter JA said the following in relation to general damages for
bodily injury (the principles apply equally to a case like the
present one) which was repeated more recently by this court in Road
Accident Fund v Marunga
[13]
:”
‘
It
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. Further, this Court will not interfere unless there
is a
“substantial variation” or as it is sometimes called a
“striking disparity” between what the trial
Court awards
and what this Court considers ought to have been awarded.’
[21]
In the judgment penned by Bosielo AJA in
Minister
of Safety and Security v Tyulu
[14]
the
SCA held that:
“
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
.”
[22]
In dealing with the
stare
decisis
rule, Nugent JA quoted from Potgieter JA
in
Protea Assurance
wherein it was held that:
[15]
‘…
Comparable
cases, when available, 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
.’
[23]
The SCA
also
cautioned in
Seymour
that
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 have no higher value than
that.
[16]
[24]
The appellant argued that the court a quo failed to consider the
evidence presented
by the appellant as a whole and that same stood
uncontested.
[17]
This argument by the appellant is not correct because the court
a
quo
took liberty of detailing all the relevant factors, including
evidence, it took into consideration in arriving at the amount
awarded
to the appellant for damages suffered.
[18]
[25]
It was further submitted by the appellant’s counsel in argument
that the court
a
quo
,
in assessing the conduct of the defendant, failed to consider the
fact that the appellant was not informed of his constitutional
right
at the time of his arrest.
[19]
I fail to understand the relevance of the appellant’s argument
in this regard because the unlawfulness of the arrest was
conceded by
the defendant at the beginning of trial. Moreover, this point was in
any event abandoned by the appellant’s counsel
during the
argument before the court
a
quo
.
[20]
[26]
With regard to the factors that were taken into consideration by the
court
a
quo
in assessing the amount to be awarded, the appellant submitted that
the
court
a quo
’s
was wrongly influenced by the appellant’s standard of
living.
[21]
I do not agree
with this argument by the appellant based on the fact that the
records presented before this court point to the
fact the appellant’s
standard of living was considered by the court
a
quo
in
light of his own evidence relating to, among other things, the size
of the cell he was detained in, the type of food he was
served while
in custody (i.e. bread and tea for breakfast and bread with soup in
the afternoon) and his earnings as a shepherd.
[22]
[27]
Having considered the facts and evidence that were placed before the
court
a quo
in the circumstances of the present case, I am of
the view that this court should restrain itself from interfering with
the amount
awarded by the court
a quo
.
[28]
In the result the successful party is entitled to the costs.
[29]
In the light of the above I propose the following order:
Order
1.
The appeal is dismissed with costs.
_______________
M.R.
RANTHO, AJ
I
concur
_____________
N.S
DANISO, J
APPEARANCES:
Counsel
on behalf of Appelllant:
Adv.
A.C. Gobetz
Instructed
by:
Loubser
van Wyk Inc.
C/O
Jacobs Fourie Inc.
BLOEMFONTEIN
Counsel
on behalf of Respondent:
Adv
P.G. Chaka
Instructed
by:
State
Attorney
BLOEMFONTEIN
[1]
Volume 1 pages 72 to 73:
para
13 of the judgment.
[2]
Volume 1
pages
31 to 50: record of proceedings.
[3]
Volume
1 pages 59 to 60: record of proceedings.
[4]
Volume 1page 73:
para
14 of the judgment.
[5]
Volume 1 page 75: para 19 of the judgment.
[6]
Volume
1pages 73 to 74: paras 15 to 18 of the judgment.
[7]
Rahim v
Minister of Home Affairs
[2015]
ZASCA
92;
2015
(4) SA 433 (SCA
);
[
2015]
3 All SA 425 (SCA
)
(29 May 2015) at para 27.
[8]
Rahim v
Minister of Home Affairs
(supra)
.
[9]
Minister
of Safety and Security v Seymour
[2006]
ZASCA
71
;
[2007]
1 All SA 558
(SCA);
2006
(6) SA 320
(SCA)
(30 May 2006) para 17;
See
also
Rudolph
and others v Minster of Safety and Security and Another
[
2009]
ZASCA
39
;
2009
(5) SA 94
(SCA);
2009
(2) SACR 271
(SCA); [
2009]
3 All SA 323
(SCA) (31 March 2009) at paras 26-29.
[10]
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
(CCT10/99)
[1999]
ZACC
17;
2000
(2) SA
1;
2000
(1) BCLR
39 (2 December 1999) at para 11;
See
also
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Limited and another
(CCT198/14)
[2015] ZACC
22;
2015
(5) SA 245
(CC);
2015
(10) BCLR 1199
(CC)
(26 June 2015) at para 88.
[11]
See footnote 9
supra
at para 11.
[12]
1971
(1) SA 530
(A)
at 534H-535H.
[13]
2003
(5) SA 164
SCA.
[14]
[
2009]
ZASCA
55
;
2009
(5) SA 85
(SCA);
2009
(2) SACR 282
(SCA);
[2009]
4 All SA 38
(SCA) (27 May 2009) at para 26.
[15]
See footnote 12
supra
at 535H – 536B.
[16]
Ibid
.
[17]
Index
page 17: para 9.2 of appellant’s heads of argument.
[18]
Volume 1
pages
31 to 50; 59 – 60: record of proceedings.
[19]
Index
page
10: para 12.3 of appellant’s heads of argument.
[20]
Volume
1 page 36: record of proceedings.
[21]
Index
page 19: para 13.1 of the appellant’s heads of argument.
[22]
Volume
1 pages 37 to 60: record of proceedings.