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[2023] ZAKZPHC 86
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Mtolo v Minister of Police (10144/2015) [2023] ZAKZPHC 86; 2024 (1) SACR 317 (KZP) (23 August 2023)
FLYNOTES:
PERSONAL INJURY – Unlawful arrest and detention –
Malice
–
In
prison for nearly two years and eight months with 37 court
appearances – – Arrest, detention and prosecution
were
actuated by police with malice – Police arrested plaintiff
without evidence and then lied at his bail application
resulting
in him being declined bail Basis for holding Minister delictually
liable for the full period of detention that
the plaintiff was
forced to endure – R3 million for contumelia and deprivation
of freedom – R300,000 for impairment
of dignity, good name
and reputation.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:
10144/2015
In
the matter between:
MDUNYISWA
MTOLO
PLAINTIFF
and
THE
MINISTER OF
POLICE
DEFENDANT
Coram
:
Mossop J
Heard
:
21, 22, 23 August 2023
Delivered
:
23 August 2023
ORDER
The
following order is granted
:
1.
The
defendant is to pay the plaintiff the amount of R3 367 200, in
respect of:
1.1
Contumelia and deprivation of freedom
arising from malicious arrest and detention:
R3
million
1.2
Impairment of dignity, good name and
reputation arising from malicious prosecution:
R300 000.00
1.3
Loss of earnings:
R67 200.00
2.
Interest
shall run on the aforesaid amount of R3 367 200 from date of service
of the summons until date of final payment.
3.
The
defendant shall pay the plaintiff’s costs on the scale as
between attorney and client.
JUDGMENT
Mossop
J
:
[1]
On 27 May 2021, Naidu AJ, in part, granted
the following order:
‘
1.
The arrest of the Plaintiff on 12 September 2011 and the consequent
detention and prosecution
were actuated by the Defendant’s
servants with malice.
2.
The Defendant is ordered to pay the Plaintiff’s costs on a
scale as between
attorney and client.
3.
The matter is adjourned sine die for the hearing regarding the
question of quantum
of damages incurred by the Plaintiff.’
The order was granted
after the learned acting judge was asked to determine the issue of
liability of the defendant for the arrest
and detention of the
plaintiff.
[2]
Naidu AJ’s appointment as an acting
judge has come to an end and the matter was accordingly allocated to
me to determine the
plaintiff’s quantum of damages. Before me,
Mr Mathonsi appeared for the plaintiff and Mr Sibeko appeared for the
defendant,
as they had done when liability was determined. Both
counsel are thanked for the assistance that they have provided to the
court.
[3]
It is perhaps prudent to briefly mention
the facts that Naidu AJ found to have been proven when he deliberated
on the issue of liability.
The plaintiff was arrested by members of
the South African Police Services (SAPS) on 12 September 2011 on two
counts, being a count
of housebreaking with intent to steal and theft
of saddles and a count of theft of a motor vehicle. He remained in
detention from
the date of his arrest, having failed to be admitted
into bail when he made such an application. On 24 June 2013 the
housebreaking
charge was withdrawn against him. He remained in
custody on the theft of motor vehicle charge until it, too, was
withdrawn on 9
June 2014.
[4]
The plaintiff was initially detained along
with one Mr Fanyana Ngcobo (Mr Ngcobo) at the Plessislaer Police
Station where he remained
for two days and then was detained at the
Camperdown Police Station for two days. Neither of these periods of
detention were recorded
in the record books of either police station.
The balance of his incarceration of nearly two years and eight months
was spent at
New Prison, Pietermaritzburg.
[5]
When the applicant applied for bail at the
Richmond Magistrate’s Court, the investigating officer opposed
that application
and testified that the plaintiff had been arrested
in the stolen motor vehicle that formed the subject matter of the
second charge
that he faced. In truth and in fact he had been
arrested at his place of employment and not in a stolen motor
vehicle. The learned
acting judge found further that a police
witness, one Leremu, had lied in his evidence either before the
learned acting judge or
in his evidence at the trial of Mr Ngcobo
regarding the arrest of Mr Ngcobo. The learned acting judge was
singularly unimpressed
with the defence witnesses. In this regard the
following extract from his judgment is both illuminating and yet
disturbing at the
same time:
‘
[134]
Regarding the detention and prosecution of the Plaintiff, the
evidence points to [sic] strongly to the possibility that Bheki
Cele,
Leremu, Phungula and Sibiya, acting in concert, conspired to
fabricate evidence against the Plaintiff which formed the basis
for
his detention and prosecution on charges of theft of the white Toyota
Hilux motor vehicle and the theft of the saddles. There
can be no
debate about the fact that the Defendant’s servants had
instigated the prosecution of the Plaintiff on both charges.
[135]
Apart from the evidence of those police officials involved in the
conspiracy referred to in the preceding
paragraph hereof, there is
not a single iota of independent and objective evidence against the
Plaintiff linking him with either
the theft of the motor vehicle or
the theft of the saddles, yet he was charged with both. Any chance
which the Plaintiff might
have had of getting bail on his first
appearance in court was extinguished when the magistrate was
informed, at the instance of
Sibiya, that he had another charge
pending against him.’
[6]
Finally, the learned acting judge found, as
the plaintiff had urged him to find, that the SAPS witnesses had
acted with malice in
acting as they did. This finding was based upon
the lies that had been uttered by them, the absence of evidence
implicating the
plaintiff in any of the charges that he faced and the
failure by the SAPS to investigate the motor vehicle case because
they knew
that the plaintiff was not involved in that matter. The
court found that implicating the plaintiff in the housebreaking
matter
was a stratagem designed to place an impediment to his release
on bail in the motor vehicle theft matter.
[7]
Yesterday I heard only the evidence of the
plaintiff on the issue of quantum. The defendant had indicated at the
commencement of
the hearing that it would call a witness in rebuttal
of the plaintiff’s evidence but, in the end, it decided against
doing
so. The evidence of the plaintiff thus remains uncontradicted.
That does not necessarily mean that everything that he testified
about can simply be accepted: evidence that is clearly exaggerated or
not in accordance with ordinary human experience may be rejected
notwithstanding that it is not met with evidence to the contrary.
[8]
The plaintiff testified that he was
detained for a period of two years and eight months before the last
charge was withdrawn and
his liberty was restored to him. His
unchallenged evidence was that, astonishingly, he made a total of 37
court appearances whilst
detained. It is a sad indictment of the
justice system generally that a matter can be prolonged for this
length of time without
judicial objection, only for all the charges
to be withdrawn.
[9]
The plaintiff testified that he was
arrested in the presence of his fellow employees, some of whom lived
in the same area at which
he resided. He was manhandled by his
arrestors and testified that he was embarrassed about what occurred
and that such conduct
impaired his dignity. He felt that his fellow
employees would now always regard him as being a criminal. The
plaintiff testified
further that the conditions under which he was
initially detained at the two police stations were, simply put,
disgusting. The
cell at the Plessislaer Police Station was unclean.
Blankets in the cell appeared to have been vomited upon but not
cleaned and
there were blood splatters all over the cell. He
explained that he was in a state of shock because of what was
happening to him.
He observed members of the SAPS assaulting other
detainees and lived in fear that he, too, would be assaulted. He
spent two or
three days at this police station and was then taken to
Camperdown Police Station where the conditions were similar to those
at
the Plessislaer Police Station. He spent two days at this police
station. He was then taken to Bizana in the Eastern Cape province.
He
and two others were placed in the luggage area of a Toyota Fortuner
motor vehicle for this lengthy journey.
[10]
Matters only improved when the plaintiff
was removed to New Prison. However, on his arrival at the prison, he
suffered the humiliation
of being required to strip naked and jump
around in front of prison officials and other inmates to establish
whether he was in
possession of any prohibited contraband concealed
on or in his body. He had to go through this ritual every time he
returned from
court – thus he suffered this indignity at least
37 times.
[11]
At New Prison he experienced overcrowding
and poor food quality. He was initially placed in 3,5-meter square
cell, which he would
be required to share with up to ten other
inmates. He described this cell as ‘the box’. The box
contained a steel bed
but no mattress and had an exposed toilet. The
toilet would have to be used in full view of the other occupants of
the cell. He
was then moved to another cell which was the same size
as the box but which the plaintiff described as being clean and which
he
regarded as being habitable by human beings. He was in this cell
for one year, and had to share it with between four and six other
inmates.
[12]
The plaintiff described the quality of the
food in prison as being ‘poor’. It took him some time to
become accustomed
to it. It was generally tasteless. Breakfast was
porridge with no sugar. The evening meal would comprise of boiled and
watery samp,
or stiff phutu with cabbage or a little portion of
curry. He lost weight during his confinement.
[13]
To ensure his physical safety after he was
robbed of some of his belongings, the plaintiff had to pay a monthly
fee of R500 plus
200 cigarettes and a bag of tobacco to a prison
gang. Failure to do so could result in either a stabbing with a knife
or an assault
with a bunch of keys placed in a sock. From the
confines of his cell he heard at night the sounds of inmates being
stabbed or being
subjected to rape. He did not suffer the safe fate
but he was on occasions touched suggestively on his buttocks by other
inmates.
[14]
Having finally been freed, the plaintiff
described his physical condition as being weak. He estimated that it
took him three months
to return to his normal condition. He testified
that he felt rejected by society and felt that everyone viewed him as
being a criminal,
when he was, in truth, not. He had been employed
before his arrest and resumed the same employment after his release.
He explained
that he avoided eye contact with his fellow employees
and believed that they were ‘sceptical’ about him. Some
employees
believed that he had been convicted and sentenced to a term
of imprisonment. After a while, he explained to some of them what had
really happened.
[15]
Mr Sibeko cross examined the plaintiff. The
plaintiff generally performed well although his evidence was not
entirely flawless.
He testified in response to a question put to him
by Mr Sibeko that he had never previously been arrested prior to
being arrested
for the matter before me. It ultimately transpired
that he had once previously been arrested and detained for two weeks.
What the
offence was underpinning his arrest is not entirely clear
but it appears that it might have been for contempt of court.
[16]
He confirmed that he had not personally
been raped or assaulted whilst detained. He was put under some
pressure by Mr Sibeko about
his testimony at his bail application. It
was suggested to him that he had admitted to previous criminal
activity when he admitted
telling the court that he had a pending
criminal matter. But that pending matter was the other charge that he
was facing. Rather
than place the plaintiff in an unfavourable light,
it merely served to confirm that he had been entirely honest in
disclosing everything
to the court hearing his bail application.
Naidu AJ later found that there was no evidence whatsoever to link
the plaintiff to
either charge.
[17]
I was impressed by the plaintiff as a
witness. I have mentioned one point of criticism concerning his
evidence but I can conceive
of no others. He vividly, but not
sensationally, conveyed his experiences to the court. He could have
embellished upon those experiences,
for example, by narrating that he
had in fact been assaulted. Had he done so, there would have been no
way of disproving that.
But he did not.
[18]
When
assessing quantum
,
it is important to bear in mind that the primary purpose behind
fixing and awarding damages is not to enrich the aggrieved party
but
to award him compensation in the form of a solatium for his injured
feelings. The amount awarded should accordingly be commensurate
with
the injury inflicted. But in assessing such compensation, the amount
fixed should also reflect how important the right to
personal liberty
is in our nascent constitutional democracy and how jealously we
protect and guard it.
[1]
Our
past history informs us that many citizens were unfairly deprived of
their liberty by an omnipotent State. That cannot again
be allowed to
occur and any malicious, arbitrary deprivation of the right to
personal liberty must be treated with the necessary
seriousness. As
was stated in
Zealand
v Minister for Justice and Constitutional Development and another
:
[2]
‘
[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.’
[19]
Fixing
the quantum of compensation is always a vexing issue. In
Ferdinand
v The Minster of Police
,
[3]
the court remarked that:
‘
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 of absence
of improper motive or malice on the part of the Defendant;
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 the deprivation of liberty; the presence or
absence of an apology or satisfactory explanation of the
events by
the Defendant; and awards in previous comparable cases.’
[20]
Courts
often have recourse to the decisions of courts that have previously
decided similar matters in an attempt to settle upon
an appropriate
amount to award an aggrieved party. Comparisons are made between the
facts of a matter before a court and cases
that have previously been
decided to see if there is any similarity in the matters. The phrase
that comparisons are odious is well
known. It was first used in 1440
by the author John Lydgate
[4]
and
is
used to suggest that to compare two different things or persons is
unhelpful or misleading. While comparisons may indeed be odious,
earlier decisions may be considered as a guide to determining what is
appropriate in a current matter.
The
correct approach to determining an appropriate award requires that a
court should have regard to all the facts of the particular
case and
to determine the quantum of damages based on such facts.
[5]
[21]
The
facts of this case are troubling. Firstly, there is the length of the
deprivation of liberty. Two years and eight months is
a substantial
period to lose from a human life. Secondly, the malice that has been
found to exist is intensely upsetting and causes
doubts to continue
about the rectitude of the SAPS. When those that are required to
protect society in fact prey upon it, then
society is in trouble. It
must have been a shocking and unnerving experience for the plaintiff
and it appears that he was failed
by those who ought to have helped
him. The powerlessness of his situation must have been overwhelming.
These factors must play
an important part in determining the amount
to be awarded to the plaintiff.
[22]
Both
counsel referred me to a range of cases that they submit provide a
guide to what should be awarded. I have considered them,
and others,
overnight. Most of the matters, whilst tangentially helpful, are not
really of assistance given the period of detention
that they dealt
with. The period over which the plaintiff was unlawfully detained was
lengthy and not the run of the mill period
reflected in most reported
matters.
[23]
In
a matter decided within this division,
Buthelezi
v Minister of Police and others
,
[6]
Chetty J awarded an amount of R1,6 million for detention for a period
of 388 days. In
Mkhize
v Minister of Justice and Constitutional Development
,
[7]
again a matter determined in this division, an award of R2 million
was granted by Bezuidenhout AJ for detention for an almost identical
period in this matter, namely 27 months. In
S
v L and another v Minister of Police and others
,
[8]
another matter decided in this division, the court awarded R3,5
million for detention over a period of 6 years and 11 months. On
the
far end of the scale is the matter of
Msongelwa
v Minister of Police and others
,
[9]
where the plaintiff was awarded R5 million for 5 months detention. A
similar amount was also awarded in
Lebelo
v Minster of Police
,
[10]
where the plaintiff was detained for 101 days.
[24]
In
coming to a decision on quantum I do not lose sight of the words of
Seegobin J in
Latha
and another v Minister of Police and others
,
[11]
where the learned judge stated the following:
‘
While
I consider 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.’
[25]
There can be no doubt that this prolonged
and disturbing experience to which the plaintiff was subject was both
shocking and totally
unnecessary. Mr Mathonsi, in an emotive and
powerful oration when arguing the matter, said that the plaintiff had
been treated
as if he was a non-person and had no rights. There is
much to be said for this argument for this is what the facts of this
matter
demonstrate. This country has an unfortunate history of people
being treated in this fashion. The concept of ubuntu is part of the
tapestry of our new dispensation but there is not a trace of its
presence in the manner in which the plaintiff was treated by the
SAPS. The plaintiff was deprived of his freedom for an unknown
reason. Mr Mathonsi said the SAPS did what they did to the plaintiff
because they had the power to do so. That is perhaps about as close
as we can come to understanding why these disturbing events
occurred.
[26]
The plaintiff amended his particulars of
claim at some stage and ultimately claimed the following amounts
under the following headings:
(a)
Contumelia and deprivation of freedom due
to malicious arrest and detention, alternatively unlawful detention:
R5 million
(b)
Impairment of dignity, good name and
reputation due to malicious prosecution: R500
000.00
(c)
Loss of earnings:
R200 000.00
[27]
The amendment referred to saw the amount
claimed in respect of contumelia and deprivation of freedom due to
malicious arrest and
detention increased from R3 million to R5
million.
[28]
In
considering an award for contumelia and deprivation of freedom due to
malicious arrest and detention, I am conscious of the fact
that the
plaintiff’s detention after his arrest was a consequence of an
order of court and not, on the face of it, at the
instance of the
SAPS.
However,
in
Mahlangu
and Another v Minister of Police
,
[12]
it
was held that it is only when a causal link is established between
the arresting officer’s conduct and the subsequent
harm
suffered by the plaintiff that the defendant is said to be liable for
detention after first the appearance. In this instance,
the SAPS
arrested him without evidence and then lied at the plaintiff’s
bail application that he had been caught red-handed
in a stolen motor
vehicle, as a consequence of which the magistrate’s court
declined to admit the plaintiff into bail. In
my view, this provides
the plaintiff with a basis for holding the defendant delictually
liable for the full period of detention
that the plaintiff was forced
to endure.
[29]
In my view, the figure claimed by the
plaintiff before he amended his particulars of claim, namely R3
million, is a fair and reasonable
amount to award him for contumelia
and deprivation of freedom due to malicious arrest and detention.
[30]
As
regards an award for impairment of dignity, good name and reputation
due to malicious prosecution it is so, as already mentioned,
that the
arrest of the plaintiff took place in front of his work colleagues
and must have been humiliating for him. He was thereafter
required to
make 37 court appearances before the charges against him crumbled.
After considering the authorities to which I was
referred,
[13]
in my view an award of R300 000 would be appropriate under this head.
[31]
Turning
to consider the plaintiff’s claim for loss of earnings, he
testified that he had
been
employed as an assistant boilermaker and fitter prior to his arrest.
His employment was of a temporary nature and he estimated
in a Rule
37 document prepared before trial that he worked on average two weeks
per month at a rate of R1 050 per week in the year
prior to his
arrest. He presented no evidence of his earnings, other than his oral
evidence. He was not seriously challenged on
this aspect of his
evidence. He was, however, criticised for not producing documentary
evidence of his employment and his earnings.
I do not share in that
criticism. It would have been ideal if that form of evidence had been
produced. But no evidence was led
by the defendant to contradict the
plaintiff’s claim to having been employed at the rather humble
rate of R1 050 per week.
[32]
The
plaintiff has claimed an amount of R200 000.00 under this heading in
his amended particulars of claim. How this figure is arrived
at is
not clear. I considered that it may have been calculated by
multiplying the amount of R4 300 per month (being the monthly
amount
that the plaintiff now claims to have earned) by the number of months
for which the plaintiff was detained, namely 32. This,
however, only
amounts to R137 600. Be that as it may, given the admission that the
plaintiff only worked for two weeks per month
at a rate of R1 050 per
week in the year prior to his arrest, it appears to me that this
amount should be extrapolated over the
period of detention. The
figure arrived at thus is R67 200. I shall make an award under this
head in that amount.
[33]
On
the issue of costs, the court hearing the liability component of this
trial granted them on the scale as between attorney and
client. I see
no reason to order costs on a lower scale.
[34]
I
accordingly grant the following order:
1.
The
defendant is to pay the plaintiff the amount of R3 367 200, in
respect of:
1.1
Contumelia and deprivation of freedom
arising from malicious arrest and detention: R3
million
1.2
Impairment of dignity, good name and
reputation arising from malicious prosecution: R300
000.00
1.3
Loss of earnings: R67 200.00
2.
Interest
shall run on the aforesaid amount of R3 367 200 from date of service
of the summons until date of final payment.
3.
The
defendant shall pay the plaintiff’s costs on the scale as
between attorney and client.
MOSSOP
J
APPEARANCES
Counsel
for the plaintiff :
Mr M H Mathonsi
Instructed
by:
:
M H
Mathonsi and Associates
152
Pietermaritz Street
Pietermaritzburg
Counsel
for the defendant :
Mr V G Sibeko
Instructed
by
: State
Attorney
Care
of:
Cajee
Setsubi Chetty Attorneys
195
Boshoff Street
Pietermaritzburg
Date
of trial : 21,
22 and 23 August 2023
Date
of Judgment : 23 August 2023
[1]
Phungula
v Minister of Police
[2018] ZAKZPHC 21 (8 June 2018).
[2]
Zealand
v Minister for Justice and Constitutional Development and another
[2008] ZACC 3
;
2008 (4) SA 458
(CC) para 24.
[3]
Ferdinand
v The Minster of Police
[2018] ZALMPPHC 58 (7 March 2018).
[4]
John
Lydgate:
Debate
between the horse, goose, and sheep
,
circa 1440.
[5]
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.
[6]
Buthelezi
v Minister of Police and others
[2021]
ZAKZDHC 20 (2 August 2021).
[7]
Mkhize
v Minister of Justice and Constitutional Development
Case number 10386/2009.
[8]
S
v L and another v Minister of Police and others
[2018] ZAKZPHC 33 (15 August 2018).
[9]
Msongelwa
v Minister of Police and others
[2020]
ZAECMHC 10 (17 March 2020).
[10]
Lebelo
v Minster of Police
[2019] ZAGPPHC 69 (28 February 2019).
[11]
Latha
and another v Minister of Police and others
2019 (1) SACR 328
(KZP) para 8.
[12]
Mahlangu
and Another v Minister of Police
2021
(7) BCLR 698
(CC).
[13]
Rautenbach
v Minster of Safety and Security and others
[2103] ZAGPPHC 387;
Sithole
v Minster of Safety and Security and another
[2016] ZACPPHC 387;
Gumbi
v Minister of Police
[2022] ZAKZHC 17.