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2023
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[2023] ZAECMKHC 15
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Dikome v Minister of Police (CA28/2022) [2023] ZAECMKHC 15 (7 February 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
APPEAL
CASE NO: CA28/2022
In
the matter between:-
SIHLE
DIKOME
Appellant
and
MINISTER OF
POLICE
Respondent
JUDGMENT
M
GWALA AJ
1.
This appeal concerns the order of the Regional Court sitting
in
Gqeberha. The court
a quo
awarded damages in favour of the
appellant in the sum of R10 000.00 plus costs. The appellant was not
satisfied with the award
and instituted the present appeal. The
appeal is limited to the issue of quantum only.
2.
The appellant instituted a claim in the court
a quo
against
the respondent for damages she sustained as a result of unlawful
arrest and detention at the instance of the members of
Police who
were acting within the scope of their employment with the respondent.
The respondent conceded merits and the trial proceeded
on the issue
concerning quantum only. In the end, the court
a quo
awarded
damages in the aforesaid amount.
3.
The appellant was the only person to testify in support of her
claim
in the court
a quo
. The respondent did not contest the
evidence led by the appellant and led no witness of his own. The
appellant’s evidence
was to the effect that she was 23 years
old at the time of the trial. In the early hours on 23 January 2020,
at approximately 04h45
the police arrived at her place of abode. They
woke her up from her sleep. They informed her that they were
arresting her because
she had fought with another lady who was in the
company of the police at the time of the arrest. They took her whilst
in her pyjamas
and they did not give her an opportunity to change to
wear normal clothes.
4.
She was arrested in the presence and in the full view of the
members
of the community who had come to witness the arrest. First, she was
taken to KwaZakhele police station. Later, but still
on that morning,
she was taken to New Brighten Police Station, processed and detained,
still in pyjamas.
5.
She described the cell in which she was detained as being filthy.
There was an ablution facility which was also dirty with no toilet
papers. She could not use the ablution facility because it was
filthy. Equally, she could not use the shower as it was filthy too.
In any event, she was not provided with towels and soap to
bath. She
was only shown where the shower was. There was only one mattress
provided in that cell with no blankets. It was cold
and dark in the
cell. In the course of time, she was taken to court where she was
kept in the holding cell which she described
as dark.
6.
She remained in the holding cells but did not make any appearance
before the magistrate. Her matter was not called and her name was not
listed on the court’s roll. At about 16h00 she was
released
from the holding cells. She was told to go home without appearing
before the court and no explanation was given at all.
7.
She was employed at the time of her arrest. She was working
at a
restaurant. She was due for promotion. She stated that as a result of
the arrest, her promotion was reversed. She suffered
emotional trauma
such that whenever she would observe police entering her work place,
she would run and hide herself in the toilets.
She could not cope at
work as a result she resigned.
8.
Outside her employment she was running a business as a hawker
on a
part time basis. She was selling clothes. Her customers became aware
of the arrest and constantly asked her about it. She
testified that
she still feels embarrassed when people look at her in the streets as
they view her as a person who stabs people
.
She had to stop
her business as a hawker because it required her to go door to door
and to meet people something which cause an
embarrassment to her in
view of the manner in which the community views her.
9.
As aforesaid her evidence was not challenged by the respondent.
The
court
a quo
, after analysing the evidence made an award for
general damages in the amount of R10 000.00. The award prompted this
appeal. The
appellant submits that an appropriate award for general
damages would be between R110 000 00 and R150 000.00.
10.
Before us the appellant contents that the court
a quo
, whilst
referring at length to various cases that deal with the determination
of quantum in relation to general damages, focused
merely on the
period of detention and the resultant awards. It did not consider the
circumstances that accompanied the arrest and
the detention. Simply
put, the court
a quo
merely compared the periods of arrest in
the various previous awards but did not consider the surrounding
circumstances of each
case in particular those applicable to the
appellant. Whilst it is proper to have regard to previous awards, it
is also important
to consider the facts of each case and the
surrounding circumstances.
11.
The approach for arriving at the quantum of general damages is well
established.
At all times a court attempts to arrive at fair award to
compensate for the negative impact on the feeling of the life of the
injured
party. There are no two cases that will ever be the same. The
award may not adequately compensate the injury but it must be fair
and reasonable. It must take into account, for instance, the premium
placed against the deprivation of freedom to liberty which
is
constitutionally protected.
12.
The amount
of the award for general damages is not susceptible of precise
calculation. It is arrived at in the exercise of broad
discretion
[1]
bestowed on the trial Court. The discretion must be exercised
reasonably.
[2]
At the end of the
day, a court is called upon to exercise its discretion to determine
an amount which it feels is fair and reasonable
to both parties,
given the particular circumstances of the case in question.
[3]
13.
The test
whether the appeal court may interfere and replace the trial court’s
award for general damages is whether the appeal
court finds that the
trial court has misdirected itself with regard to material facts or
in its approach to the assessment, or
having considered all the facts
and circumstances of the case, the trial court’s assessment of
damages is markedly different
to that of the appellate court. In its
determination, the court considers whether the amount of damages
which the trial court had
awarded was so palpably inadequate as to be
out of proportion to the injury inflicted.
[4]
14.
If that is
the case, the appeal court does not only have a discretion but it is
obliged to substitute its own assessment for that
of the trial court.
In doing so the appeal court considers whether the amount of damages
which the trial court awarded was so palpably
inadequate as to be out
of proportion to the injury inflicted. The appeal court may therefore
interfere with the award of damages
if it finds that the award of the
trial court was palpably excessive, clearly disproportionate in the
circumstances of the case,
grossly extravagant or unreasonable or so
high as to be manifestly unreasonable. Also, the appeal court may
interfere if a trial
court is found to have misdirected itself in its
assessment of the damages.
[5]
15.
The court
a quo
did not take into account the circumstances
under which the arrest and detention of the appellant took place. The
appellant was
woken up from sleep in the early hours of the day. The
police found her in pyjamas. She was not given an opportunity to
change
from her pyjamas to wear proper clothes. She was taken in that
condition in full view of the people. She was taken to the Police
Stations as well as to court, all of which are public places, whilst
wearing pyjamas. She was in pyjamas the whole day in circumstances
where she had to be among other people. She was kept in dark and
dirty cells. She was not given blanket to cover herself even though
it was cold.
16.
The arrest as well as the detention in the circumstances were so
undignified
for a human being to be taken to public places wearing
pyjamas. This was a serious invasion on her dignity. Even worse, she
was
not given opportunity to appear before the court. She was simply
released from the holding cells at the end of the day and told
to
leave without any explanation. Her arrest and detention were
basically a form of harassment, a conduct unacceptable in civilised
society such as ours.
17.
The respondent for his part realizes the seriousness of the invasion
caused
to the appellant and the inadequacy of the award made by the
court
a quo
. The respondent does not defend the amount award
by the court
a quo
. Instead, the respondent suggests that a
higher award ought to have been made.
18.
The respondent submits that a sum of R30 000 00 would be
appropriate in
the circumstances. The appellant on the other hand
contends that an amount between R110 000 and R150 000 00
would fair
and reasonable. I am of the view that the amount contended
for by the appellant is way more excessive.
19.
It is trite that in determining general damages the court is required
to exercise
a wide discretion in order to award what it considers to
be fair and adequate consolation having regard to all the relevant
facts
and circumstances relating to the aggrieved party. There is no
amount of money that would constitute adequate consolation for
damages
to the person of the appellant. That notwithstanding, the
award must be fair and reasonable to both parties.
20.
In Tyulu
[6]
Supreme Court of Appeal said the following:-
“
[26]
In the assessment of damages for unlawful arrest and detention, it is
important to bear in mind that the
primary purpose is not to enrich
the aggrieved party but to offer him or her some much-needed solatium
for his or her injured feelings.
It is therefore crucial that serious
attempts be made to ensure that the damages awarded are commensurate
with the injury inflicted.
However, our courts should be astute to
ensure that the awards they make for such infractions reflect the
importance of the right
to personal liberty and the seriousness with
which any arbitrary deprivation of personal liberty is viewed in our
law”.
21.
I accept that the amount of R10 000 00 awarded by the court
a
quo
is wholly inadequate given the seriousness of the deprivation
of liberty. It is not commensurate with the injury inflicted to the
person of the appellant. The appellant was merely arrested and
detained and kept in the holding cells only to be told at the end
of
the day to go home without being charged and without appearing before
court. Absent any other explanation I can only describe
this as
malicious and a harassment that was intended to humiliate the
appellant. An appropriate award that would be meaningful
to deter
such conduct whilst giving consolation to the appellant is called
for.
22.
The
constitutional Court in the matter of Mahlangu
[7]
said thus:-
“
[50]
It is trite that damages are awarded to deter and prevent future
infringements of fundamental rights by organs
of state. They are a
gesture of goodwill to the aggrieved and they do not rectify the
wrong that took place. In Seymour,
the Supreme Court of Appeal
encapsulated the purpose of damages and said:
“
Money can never
be more than a crude solatium for the deprivation of what in truth
can never be restored and there is no empirical
measure for the
loss.”
[8]
23.
In De Klerk v Minister of police 2019 [12] BCLR 1425, -[2019] ZACC 32
the aggrieved
had been in detention for eight days. In that matter,
as it is the case in the present matter, the quantum of general
damages was
not seriously challenged. The court awarded a sum of
R300 000.00.
24.
In
Mahlangu
[9]
the aggrieved had
been detained for eight months and ten days. Taking into account
their peculiar circumstances the court awarded
them R 550 000.00
and R500 000.00 respectively.
25.
I have concluded that an award in the sum of R10 000 00 was
wholly in adequate.
It does not give due regard to the dignity of the
appellant and the premium placed of the freedom of liberty and
against deprivation
thereof. I am of the view that a sum of R30
000.00 would be just and fair and reasonable in the circumstances and
that such an
amount should be awarded as consolation to appellant’s
injury.
26.
I turn to deal with the question of costs. The respondent submitted
that in
the event the appellant achieves success of no more than
R30 000 00, the court should limit the costs in favour of the
appellant
to 04 April 2022, a date on which it is said the respondent
made a formal offer of settlement with prejudice to the appellant in
terms of Rule 34 of the Uniform Rules. The respondent submits that
the appellant should pay the costs from 04 April 2022 to date
of
hearing the appeal.
27.
The offer
of settlement referred to above was not made part of the record. It
was not handed up in court either. Consequently, it
was not before
court. This is important because in terms of Rule 34 of the Uniform
Rules such an offer must comply with certain
requirements. An
assessment must be done to ascertain whether it complies with the
requirements. For instance, an offer of settlement
made under the
Rule 34 must be (i) a written offer; (ii) signed personally by the
defendant (respondent in this case) or by the
defendant’s
attorney if the latter has been authorized thereto in writing; and
(iii) comply with the provisions of subrule
(5).
[10]
28.
Since the offer of settlement was not made part of the record and
since the
court was not provided with a copy thereof in any way, the
court is left in a situation where it is unable to assess whether
such
offer of settlement complies with the requirements of Rule 34 of
the Uniform Rules. It follows that the court may not take into
account such offer of settlement if it cannot ascertain the validity
thereof.
29.
In the result, I propose an order in the following terms:
27.1
The appeal is upheld with costs;
27.2
The order of the court
a quo
is set aside and substituted with
the following:
“
(a)
The defendant is ordered to pay the plaintiff for general damages in
the amount of R30 000.00;
(b)
The defendant is ordered to pay the plaintiff’s costs of suit”.
M.
Gwala
Acting
Judge of the High Court of South Africa
Beshe
J,
I
agree and it is so ordered.
N.
G. Beshe
Judge
of the High Court
Date
of Hearing:
02 December 2022
Date
of Judgment:
07 February 2023
Counsel
for the appellant:
Adv TW Mgidlana
Counsel
for the respondent: Adv B
Ndamase
[1]
See
Minister of Safety and Security v Augustine and Others
2017 (2) SACR
332
(SCA) para 25.
[2]
Dikoko
v Mokhatla
2006 (6) SA 235
(CC) para 57
[3]
See
Komaphe and Others v Minster of Basic Education and Others
2020 (2)
SA 347
SCA para 56.
[4]
Dikoko
supra para 57
[5]
See
Dikoko V Mokgatla
2006 (6) SA 235
(CC) paras 57 and 58.
[6]
Minister
of Safety V Tyulu
2009 (5) SA 85
SCA para [26]
[7]
Mahlangu
and Another v Minister of Police (CCT 88/20)
[2021] ZACC 10
(14 May
2021)
[8]
Footnote
omitted
[9]
Footnote
12 supra
[10]
Subrule
5 states as follows:
“
(5)
Notice of any offer or tender in terms of this rule shall be given
to all parties to the action and shall state —
(a)
whether the same is unconditional or without prejudice as an offer
of settlement;
(b)
whether it is accompanied by an offer to pay all or only part of the
costs of the party to whom the offer or tender
is made, and further
that it shall be subject to such conditions as may be stated
therein;
(c)
whether the offer or tender is made by way of settlement of both
claim and costs or of the claim only;
(d)
whether the defendant disclaims liability for the payment of costs
or for part thereof, in which case the reasons
for such disclaimer
shall be given, and the action may then be set down on the question
of costs alone.”