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[2023] ZAECMKHC 82
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Papana and Others v Minister of Police - Appeal Judgment (CA47/2022) [2023] ZAECMKHC 82 (8 August 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case No: CA 47/2022
In
the matter between:
CHRISTOPHER
PAPANA
First
Appellant
PATRICIA
MAY
Second
Appellant
PHINDILE
POKILE (aka SIYABULELA KHALIPI)
Third
Appellant
SIPHOSETHU
NTETE (aka ESETHU NTETE
Fourth
Appellant
PHUMEZA
VERONICA POTWANA
Fifth
Appellant
AVIWE
NOTYAWE
Sixth
Appellant
YAMKELA
ANAM RALO
Seventh
Appellant
LUNGISWA
BABRA TAMANI
Eighth
Appellant
ANESIPHO
NTETE (aka ANESIPHO NTOMO)
Nineth
Appellant
SINESIPHO
SOPHILE
Tenth
Appellant
LINDA
GAVENE (aka NOMONDE SILO)
Eleventh
Appellant
LUZUKO
NOEL KONDILE
Twelfth
Appellant
MALIBONGWE
NGCOBONDWANA
Thirteenth
Appellant
MONWABISI
XOTOVA
Fourteenth
Appellant
NOMISELO
MATOMANA
Fifteenth
Appellant
THEMBISA
L MANTILE (aka RANGULA)
Sixteenth
Appellant
XOLELWA
NONZE
Seventeenth
Appellant
AMANDA
MDILITWANA
Eighteenth
Appellant
And
MINISTER
OF POLICE
Respondent
APPEAL
JUDGMENT
BANDS
J:
[1]
In
reaction to the Covid-19 pandemic, a national state of disaster was
declared on 15 March 2020 in terms of the
Disaster Management Act, 57
of 2002
. In terms of the Disaster Management Regulations,
[1]
a “hard lockdown” commenced on 27 March 2020 (“
the
March 2020 regulations
”).
[2]
The restrictions imposed by the March 2020
regulations were relaxed on several occasions, as a consequence of
which the country
was placed on various alert levels, each of which
was regulated by ongoing amendments to the regulations. During
the period
of 1 June 2020 to 17 August 2020, South Africa was placed
on lockdown alert level 3. In terms of regulation 33(1A) of the
regulations, as amended on 12 July 2020, by publication in Government
Gazette 43521:
“
Every
person is confined to his or her place of residence from 21h00 until
04h00 daily, except where a person has been granted a
permit, which
corresponds with Form 2 of Annexure A, to perform a service permitted
under Alert Level 3, or is attending to a security
or medical
emergency
.”
[3]
It was common cause, in the court below,
that the appellants were arrested without a warrant, by members of
the South African Police
Service on Friday, 24 July 2020, for
contravening Regulation 33(1A). The appellants were detained at
the Joza Police Station
until taken to the Magistrates’ Court,
Grahamstown (as it then was) at 08h00 on Monday, 27 July 2020.
The appellants
were thereafter released on warning at 12h00 that same
day.
[4]
The appellants, aggrieved by their arrest
and detention, instituted separate action proceedings against the
respondent, claiming:
(i) damages for their alleged unlawful arrest
and detention (under claim one); and (ii) special damages for legal
fees, allegedly
incurred by the respective plaintiffs, in defending
the criminal charges against them (under claim 2). These
individual actions
were thereafter consolidated by order of court on
22 February 2022.
[5]
In respect of claim one, the lawfulness of
the appellants’ arrest and subsequent detention; the period of
the appellants’
detention; and the quantum of the appellants’
claim remained in dispute. The disputed issues in respect of
claim two,
centred around the appellants’ entitlement to the
damages claimed and the quantum thereof. Significantly, prior
to
argument, in the court below, the appellants abandoned their
second claim. I return to this aspect later insofar as it is
relevant to the order of costs granted by the trial court.
[6]
On
the pleadings, the appellants contend that their arrest and detention
was wrongful and unlawful inasmuch as there existed no
grounds to
suspect that they had committed a schedule 1 offence. It was
further pleaded that the members of the South African
Police Service
(“
the
SAPS members
”)
did not entertain a reasonable suspicion that the appellants had
committed an offence and that such suspicion rested on
reasonable
grounds. The appellants further pleaded that the SAPS members
failed to exercise their discretion to arrest and
detain the
appellants rationally,
[2]
and
consequently, that such discretion was exercised unlawfully.
The basis for the attack on the SAPS members exercise of
discretion
is canvassed on the pleadings and need not be repeated herein given
the concession on behalf of the appellants, which
I deal with
hereunder.
[7]
On the other hand, the appellants’
arrest, as pleaded by the respondent, was effected in terms of
section 40(1)(a) of the
Criminal Procedure Act, 51 of 1977 (“
the
CPA
”). Accordingly, on the
respondent’s version, the considerations which come into play
in respect of an arrest
effected in terms of section 40(1)(b) of the
CPA, are of no moment.
[8]
On 10 February 2022, judgment was granted
by the Regional Court, Grahamstown (as it then was), in the following
terms:
“
In
respect of Claim 1
(a)
The claim for unlawful arrest is dismissed.
(b)
The continued detention of the 18 plaintiffs from 14h00 on Saturday
25 July 2020 until 08h00 Monday
27 July 2020 was unlawful.
(c)
The defendant is liable to compensate the 18 plaintiffs for damages
arising from the plaintiffs
unlawful detention in the following
manner:
(i)
in respect of the thirteen (13) female plaintiffs (the 2
nd
,
4
th
, 5
th
, 6
th
, 7
th
, 8
th
,
9
th
, 10
th
, 11
th
, 15
th
,
16
th
, 17
th
and 18
th
plaintiffs) and
the 13
th
plaintiff in the amount of R30,000-00 (thirty
thousand rand) for each of these plaintiffs; and
(ii)
in respect of the four (4) remaining plaintiffs (the 1
st
,
3
rd
, 12
th
and 14
th
) in the amount of
R20,000-00; and
(iii)
interest on the amounts awarded, calculated at the prevailing
prescribed rate, from date
of judgment;
(d)
The defendant is ordered to pay the 18 plaintiffs costs of suit in
respect of the first claim on a party and
party scale, such costs to
include the costs of Counsel, at a rate not exceeding 3 times the
tariff, subject to the discretion
of the Taxing master/mistress in
respect of the first claim only.
”
In respect of Claim
2
(e)
The second claim is dismissed.
(f)
The plaintiffs to pay the defendants costs in respect of claim 2
only, on a party and party scale,
such costs to include the cost of
Counsel, at a rate of not exceeding 3 times the tariff, subject to
the discretion of the Taxing
master/mistress in respect of the second
claim only.
In respect of costs
and interest thereon (both claims)
(g)
Costs of suit to be paid within (fourteen) 14 days after taxation.
Interest a tempore morae on
the taxed costs, calculated at the
prevailing prescribed rate, from a date fourteen (14) days after
taxation, to date of final
payment in respect of both cost order.”
[9]
It is this judgment, which forms the
subject matter of the present appeal.
[10]
Distilled to their essence, the grounds of
appeal are that the trial court erred in finding that the appellants’
arrest was
lawful and that the magistrate had misdirected himself in
his findings regarding the lawfulness of the appellants’
detention
for the following periods: (i) from the time of the
appellants’ arrest, at 21h15 on Friday, 24 February 2020, until
14h00
(on Saturday 25 July 2020); and (ii) from 08h00 on Monday, 27
July 2020, until approximately 12h00/13h00 on the same day.
The
point was also taken that the trial court erred and misdirected
himself in respect of his assessment of the quantum of damages
to
which the appellants were entitled, this of course being inextricably
linked to,
inter alia
,
the period of detention determined by the trial court to be
unlawful. Lastly, the appellants appealed against the
magistrate’s
finding that the appellants were liable for
payment of the respondent’s costs in respect of claim two.
[11]
In order to succeed with their appeal, the
appellants must establish that the magistrate’s judgment is
assailable on the basis
of error or misdirection. In the event
of such a finding, and should the appellants succeed in their appeal
in full, they
would be entitled to the payment of damages arising
from their unlawful arrest and subsequent unlawful detention for a
period of
63 hours, calculated from 21h15 on Friday, 24 February
2020, until approximately 12h00 on Monday, 27 February 2020.
The lawfulness of
the appellants’ arrest
[12]
Whilst much was made regarding the
lawfulness of the appellants’ arrest (or rather, the lack
thereof), in the court below,
as well as in the notice of appeal, it
is apposite to mention that Ms du Toit, who appeared on behalf of the
appellants, conceded
the lawfulness of the appellants’ arrest,
during argument before this court, and in doing so, conceded the
correctness of
the court a quo’s finding in this regard.
[13]
On a conspectus of the evidence before the
trial court, and more particularly the uncontested evidence of the
respondent’s
witnesses, Lieutenant Colonel Johan Botha
(“
Lieutenant Botha
”),
the arresting officer, and Colonel Nomsa Evelyn Mtshagi (“
Colonel
Mtshagi
”), the station commander
situated at Joza Police Station, such concession was properly made.
I pause to mention that
the appellants, in their notice of appeal,
took no issue with the trial court’s credibility findings in
respect of the second
and thirteenth appellants, who testified in the
court below, nor in respect of the respondent’s witnesses,
which findings
I cannot fault.
[14]
In light of the aforesaid, I need not deal
with his aspect in greater detail, which will serve only to
unnecessarily burden this
judgment.
[15]
I accordingly turn to the period of
detention, as assessed by the trial court.
The period of
unlawful detention as assessed by the trial court
[16]
Given the consequences that the appellants’
concession has on the computation of the period of the appellants’
unlawful
detention, the appellants’ counsel was invited, in the
circumstances, to comment on the time that the appellants contend
their detention to have become unlawful. In answer, Ms du Toit
submitted that the lawfulness of the detention persisted up
until
23h55 on Friday, 24 July 2020, this being the time recorded in the
second appellant’s Notice of Rights in terms of
the
Constitution.
[17]
Such submission, however, fails to take
into account the uncontested evidence of Lieutenant Botha, regarding
the extensive administrative
process, which had to be undertaken in
respect of all eighteen appellants, upon their arrival at the police
station shortly after
midnight, which process was completed at
approximately 04h30 on Saturday morning, 25 July 2020. When
asked to elaborate on
what he meant by processing, Lieutenant Botha
testified that:
“…
we
had to do all the arrest statements, we had to do the notice of
rights, the SAP14, then we had to hand all the weapons and the
stuff
into the SAP13 as evidence, and then after that was done we had to
take them through the cells, because of the Covid regulations
we just
couldn’t take them into a group into the cells, we had to
ensure that social distancing take place, so we had to
take two or
three at a time through the cells, where there was another process
there Your Worship of putting them through the SAP14,
ensuring that
they are placed in the cells, ensuring that their property was taken
from them and booked into the SAP22’s
property register, so the
administrative side of it took quite a while Your Worship to get the
18 people processed and through
the books and into the cells.
”
[18]
According to Lieutenant Botha, once the
aforesaid administrative duties are complete and the suspects are in
their cells, the docket
is then handed over to an investigating
officer, whereafter a further administrative process ensues. As
part of this process,
the investigating officer is tasked with
verifying the personal information of each suspect prior to a
decision being made as to
the manner of his release. In this
regard, it was his evidence that:
“…
your
address should be followed up, where do you stay, are you really the
person who you said you are, so ID documents needs to
be obtained
from your house, statements need to be obtained from fellow people,
or fellow persons in the community that knows you
if you don’t
have ID documents with you, the charging process is quite a lengthy
process, finger prints needs to be taken,
warning statements needs to
be taken, to process 18 suspects as a detective Your Honour, and you
have skeleton staff, is going
to take you quite a while
.”
[19]
On the second appellants own version, which
was corroborated by the objective evidence placed before the trial
court, she was still
being processed at 13h30 on Saturday, 25 July
2020, this being the time that the SAPS 3M(m) form, more commonly
referred to as
a warning statement, was completed. Apparent
from page 12 of the warning statement is that the second appellant
certified
the correctness of the record of interview at 13h45 on 25
July 2020. Moreover, the thirteenth appellant’s warning
statement
was signed thereafter at 14h00. In light of the
aforesaid, I can accordingly find no fault with the trial court’s
finding
that the processing continued up until at least 14h00 on 25
July 2020 and that same was necessary and justified.
[20]
Having said that, the trial court’s
finding that the period of detention at court, from 08h00 on Monday,
27 July 2020, until
the appellants’ release at approximately
12h00, is lawful, requires further comment.
[21]
Such
finding appears to have been premised on the magistrate’s view
that “
[t]he
further period of detention at court until the release of the
plaintiffs at 12h00 appears to be reasonable for the processing
and
first appearance of 18 accused people at court.
”
On the evidence before the trial court, there is nothing to suggest
that the detention, once it had become unlawful
at 14h00 on 25 July
2020, became lawful due to some or other intervening event.
Ultimately, the purpose of an arrest is to
bring the arrested persons
before court. Accordingly, the appellants’ attendance at
court flowed from their arrest
on 24 July 2020. It could hardly
be argued, nor do I understand it to have been suggested, that such
court attendance was
not foreseeable in the circumstances.
[3]
[22]
I am accordingly satisfied that the
magistrate misdirected himself in finding that the period of
detention between the hours of
08h00 and 12h00 on Monday, 27 July
2023, were lawful, and that such misdirection warrants the
interference of this court.
[23]
In light of the aforesaid, the appellants
were unlawfully detained for a period of 46 hours, calculated from
14h00 on Saturday 25
July 2020, until their release on Monday, 27
July 2020, at approximately 12h00.
Quantum
[24]
It
is settled law that the quantum of damages to be awarded to a
plaintiff in cases concerning the deprivation of liberty, is in
the
discretion of the trial court. The Constitutional Court in
Dikoko
v Mokhatla
[4]
commented as follows regarding the approach of an appellate court to
the question of whether it can substitute a trial court’s
award
of damages:
‘
.
. . [S]hould an appellate Court find that the trial court had
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, it not
only has the discretion but is obliged to substitute its own
assessment
for that of the trial 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.
’
[25]
For
present purposes, it is worth recounting the comments of the Supreme
Court of Appeal in
Tyulu
v Minister of Police
:
[5]
“
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.
”
[26]
Leaving aside the above finding in respect
of the magistrate’s misdirection regarding the period of
unlawful detention, and
for the reasons set out herein below, I am
further of the view that the disparity in the amount of damages
awarded by the trial
court and what I consider to be an appropriate
amount, is striking. This on its own, constitutes a material
misdirection.
Moreover, the magistrate, in assessing the
quantum of damages to be awarded to the respective appellants,
differentiated between
male and female appellants for no cogent
reason. Emphasis was also placed on the cumulative award in
respect of all eighteen
appellants, and the impact that such
cumulative award may have on the public purse. Whilst the
magistrate admittedly placed
weight on the facts and circumstances of
the case which were relevant to its assessment of damages, I am
satisfied that the trial
court, in certain respects, misdirected
itself in the application of the legal principles relevant to claims
on this nature.
[27]
In
Kammies
v Minister of Police and Another
,
[6]
the plaintiff was detained for three days and awarded damages in the
sums of R70,000. In
Rahim
and Others v Minister of Home Affairs
,
[7]
the
Supreme Court of Appeal awarded damages ranging from R3,000.00 for a
period of four days and R20,000.00 for 30 days’
unlawful
detention. In
Brits
v Minister of Police & Another
[8]
the
Supreme Court of Appeal considered an award of R70,000.00 to be
appropriate for a period of detention of one day. Lastly,
in
Nel
v Minister of Police
,
[9]
this court concluded, on the facts of that matter, that R35,000.00
would be appropriate for a period of 20 hours’ detention.
[28]
Having
considered all the facts germane to the present proceedings,
including the circumstances under which the deprivation of the
appellants’ liberty took place; the relatively short duration
thereof; the absence of an improper motive on behalf of the
respondent; the conditions of the cells in which they were detailed;
and
the humiliation experienced by them; I consider an amount of
R60,000.00 in respect of each appellant to be an appropriate award
of
damages in respect of their unlawful detention.
[29]
I
now turn to the issue of costs in respect of the appellants’
second claim. On a consideration of the record of proceedings,
I can see no basis upon which to interfere with the discretion of the
trial court in this regard.
[30]
In
light of the aforesaid, the appellants’ appeal is to be
upheld. Albeit only partially successful, I see no reason
why
costs should not follow the event.
[31]
In the result, the following order
is issued:
1.
The appeal is upheld, with costs.
2.
The order of the court
a
quo
set out in paragraphs (b) and (c)
in respect of claim 1 is set aside and substituted with the
following:
“
(b)
The plaintiffs’ detention from 14h00 on Saturday, 25 July 2020,
until 12h00
on Monday, 27 July 2020, is unlawful.
(c)
The defendant is ordered to pay each of the first to eighteenth
plaintiffs the
sum of R60,000.00 as and for damages arising out of
the plaintiffs’ unlawful detention.
”
I BANDS
JUDGE OF THE HIGH
COURT
I agree.
D VAN ZYL DEPUTY JUDGE
PRESIDENT
JUDGE OF THE HIGH
COURT
Heard:
10
February 2023
Judgment
delivered:
8
August 2023
For
the appellant:
Adv
du Toit
Instructed
by:
NN
Dullabh & Co
For
the respondent:
Adv
Watt
Instructed
by:
Messrs
Zilwa Attorneys
[1]
Published
in terms of
section 27(2)
of the
Disaster Management Act 57 of 2002
:
GN 318 of 2020 in GG. No 43107 (18 March 2020), and as amended by GN
398 of 2020 in GG. No 43148 (25 March 2020).
[2]
Although
not pleaded in exact terms.
[3]
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).
[4]
2006
(6) SA 235
(CC).
[5]
Minister
of Safety and Security v Tyulu
[2009]
ZASCA 55
;
2009
(2) SACR 282
(SCA);
[2009]
4 All SA 38
(SCA);
2009
(5) SA 85
(SCA)
para 26.
[6]
Kammies
v Minister of Police and Another
[2017]
ZAECPEHC 25.
[7]
Rahim
and Others v Minister of Home Affairs
[2015]
3 All SA (SCA).
[8]
(759/2020)
[2021]
ZASCA 161
(23
November 2021).
[9]
(CA62/2017)
[2018] ZAECGHC 1 (23 January 2018).