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[2024] ZAKZPHC 23
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Minister of Police v Khedama (AR259/2022) [2024] ZAKZPHC 23 (18 March 2024)
SAFLII
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
Case No:AR259/2022
In the matter between:
THE MINISTER OF
POLICE
APPELLANT
and
CYNTHIA NOBUHLE
KHEDAMA
RESPONDENT
This judgment was handed
down electronically by circulation to the parties’
representatives by email. The date and time for
hand down is deemed
to be 10h00 on 18 March 2024.
ORDER
On
appeal
from:
the
High
Court
of
South
Africa,
KwaZulu-Natal
Local
Division, Durban (Lopes J sitting as a court of first instance):
1.
The
appeal is upheld with each party to pay its own costs;
2.
The
order of the court
a quo
is
set aside and substituted with the following order:
(a)
the
defendant is directed to pay the plaintiff the sum of R350 000;
(b)
the
defendant is directed to pay to the plaintiff interest on the sum of
R350 000 at the rate of 15.5% per annum calculated from
the date of
judgment, being 17 January 2022 to the date of final payment.
(c)
the
defendant is to pay the plaintiff’s taxed or agreed costs of
the action.
JUDGMENT
Delivered on: 18 March
2024
Poyo Dlwati JP (Henriques
J and Gounden AJ concurring)
[1]
This
appeal concerns the quantum of damages awarded to the respondent, Ms
Khedama, in a claim for damages arising from an unlawful
arrest and
detention by the members of the appellant. The issue of liability was
settled by consent between the parties in terms
of a court order
dated 23 April 2018.
[2]
The
facts upon which this appeal is premised are largely taken from the
judgment of the court
a quo
and
are as follows: Ms Khedama, was arrested by members of the South
African Police Services (SAPS) at King Shaka International
Airport in
Durban on 3 December 2011. She was
en
route
to Turkey with her employer and
his wife. Whilst at the international departures lounge, she was
approached by two uniformed members
of the SAPS, one black male and a
black female. They took her to a room where they questioned her for
about two hours about her
journey, its purpose and who she was going
with. They asked her if she had any fraud matters pending against
her.
[3]
The
police officers told her that she had to be searched and they also
needed to search her suitcase. They told her that she was
going to be
arrested. They took her suitcase and opened it in full view of the
public and her belongings were scattered on the
floor. This, to her,
was very embarrassing. They took her to the charge office where she
was searched with her suitcase. Nothing
untoward was found in her
suitcase. Ms Khedama told the officers to phone a police officer in
Cape Town who had spoken to her about
some fraud allegations against
her. This happened after she had lost her identity document and
apparently some people were using
it to commit fraud.
[4]
Indeed
the police officers phoned one Captain Barnard in Cape Town. He
seemed to have confirmed what Ms Khedama had told the police
officers. Nevertheless, she was thereafter instructed to phone her
boyfriend as she was being arrested and her suitcase needed
to be
removed. Her boyfriend, accompanied by one of her friends, arrived at
the airport. They tried to reason with the police officers,
unsuccessfully. Instead some insults were hurled at her for having an
affair with a ‘kwerekwere’. From the airport
charge
office, she was taken to Tongaat Police Station in the back of a
police van. According to Ms Khedama, the police officers
did not want
to listen to anything she was saying but were harsh towards her
instead.
[5]
On
arrival at Tongaat Police Station, she was told to remove her
jewellery which was placed in safe keeping as she was taken into
detention. She was taken to a small cell where she was kept for days.
The toilet in the cell was very dirty with faeces and it
smelt
terrible. There was also a filthy grey blanket on the floor. She had
no blanket to cover herself. She was also unable to
sleep as she was
traumatised by the events. She was not offered any food that evening.
She developed an intense headache. The next
morning her fingerprints
were taken. She asked the police officer attending to her to ask her
boyfriend to bring her a jacket,
socks, and pain tablets for the
headache. Tea and bread were thrown at her through a hole in the door
as her breakfast. She, however,
did not eat her breakfast as she had
no appetite due to her circumstances and the conditions in the cell.
[6]
Later,
she was brought some headache tablets as well as a jacket, socks and
some food. She still could not eat. She was kept at
the Tongaat
Police Station from 3 to 9 December 2011. At some point, whilst in
police custody, she considered taking her own life
with the headache
tablets as she could not cope with her arrest. When she appeared in
the Verulam Magistrates’ Court on 5
December 2011, she was
simply told that she would be transferred to Cape Town. During her
detention in Tongaat, she was not able
to bath or clean herself nor
was she given an opportunity to exercise.
[7]
On
9 December 2011 two police officers from Cape Town arrived at Tongaat
Police Station. They handcuffed Ms Khedama and removed
her from her
cell. She was placed in a police vehicle and travelled to Cape Town.
She told those officers what had happened to
her. They told her that
her ordeal would be over soon if she was innocent. The car stopped at
a garage and she was asked if she
wanted something to eat. Even
though she refused she was brought soft porridge and water. When they
arrived in Mthatha, she was
detained in a cell overnight. The roof of
the cell was leaking as it was raining and it was very windy. There
was a filthy grey
blanket hanging down from the roof but she could
not use it. Again, she could not sleep and stayed awake the whole
night in the
cell crying.
[8]
The
police officers came to fetch her the following morning so that they
could continue with their journey. They asked if anything
had
happened to her as they could see that she was distressed. She told
them she could not sleep due to the conditions of the cell.
They
continued with their journey and she had to spend another night at a
cell in Monti with other female prisoners. She had to
share a blanket
with another prisoner who was a complete stranger to her. Early the
following morning she was fetched by the police
officers and they
continued with their journey to Cape Town. At a petrol station, they
stopped and the police officers offered
her a face cloth, toothbrush
and toothpaste so that she could freshen up in the petrol station’s
washroom. That was the first
time in the 7 days since the start of
her detention where she attempted to freshen up. She, however, could
not change her clothing.
They arrived in Cape Town during the evening
of 11 December 2011.
[9]
A
female police officer took her fingerprints to verify whether she was
the person sought. According to Ms Khedama, the fingerprints
showed
that she was not the person that the police were searching for. She
was still kept for a further night in a cell, again
with other female
prisoners. The following day she was taken to the Philippi
Magistrates’ Court where she was granted bail
after her pleas
to the magistrate. She was eventually released on bail on 12 December
2011. It was only after being released that
she managed to properly
freshen and clean up herself. Shortly thereafter she managed to
return to Durban as her case was remanded
to March 2012.
[10]
On
Ms Khedama’s return to Cape Town in March 2012, there seemed to
be an acceptance that she was not the person sought and
the matter
was finalised. She recovered the bail money and returned to Durban.
She told the court that it took time for her employer
to trust her
again and for him to agree to allow her to travel with him overseas
to purchase stock for the shop. She was at King
Shaka International
Airport, for a second time similar to the first occasion, namely with
her employer to travel overseas to buy
stock, when she was again
approached by two police officers who took her to the same room she
was in on the first occasion for
questioning. On this second occasion
she explained to them what had happened to her in Cape Town and that
the matter was finalised.
Even though the police officers eventually
told her that they were joking and just wanted to know what happened,
she told the court
that she was scared as she feared that the same
fate, as had happened on the first occasion, would befall her.
However, after just
less than an hour, they let her go.
[11]
Ms
Khedama told the court how traumatic the whole experience of her
arrest was and the effects it had on her. She lost trust in
herself
and faith in the police. She began to fear members of the police. The
first time she consulted a doctor, she could not
explain to the
doctor what happened to her as she was still traumatised. She was
treated for blisters on her face and chest. Later
she had to consult
a doctor again as she was experiencing severe constipation and
stomach problems. This was when she eventually
explained to the
doctor the ordeal of her arrest and detention. The relationship with
her employer was badly affected as a result
of her arrest and
detention as he mistrusted her. He required her to pay for the flight
costs of the first trip and on her return
to work she was demoted
from being a sales manager to a sales lady. Despite her demotion and
her employer’s mistrust of her,
due to her work experience and
ability, she accompanied him on the second buying trip.
[12]
Dr
Ebrahim Ajee Chohan, a practising clinical and educational
psychologist, was called, on behalf of Ms Khedama, and testified
about the effects the arrest had on her.
Even
though he consulted with her nine years after her experience, he was
convinced after his consultation that Ms Khedama would
have had
symptoms of anxiety, flashbacks, hypervigilance, sleep deprivation
and reduced libido after the incident and concluded
that she had
probably suffered from post-traumatic stress disorder. He opined that
it was probable that she behaved in the way
she did during her arrest
and incarceration and that she could have attempted to commit
suicide.
[13]
Dr
Chohan testified that even though the incident would have caused a
shift in Ms Khedama’s day to day activities, she would
eventually stabilize. He was confident, guided by the score to an
assessment he had conducted on Ms Khedama, that there was no
malingering effects present on her part. This opinion differed from
the appellant’s expert, Ms Amina Bhayat, who found that
Ms
Khedama had malingering effects present. Dr Chohan scored Ms Khedama
12 out of 15 and testified that a score of seven would
point to the
possibility of a malingering effect.
[14]
The
evidence tendered by the appellant did not contradict much of Ms
Khedama’s testimony regarding her arrest and detention.
In
particular, Sergeant Pather, who testified on behalf of the
appellant, did not recall whether Ms Khedama’s suitcase had
been opened at the airport in full view of the public and he did not
have any further dealings with her after the day of her arrest.
So,
he did not know the conditions of the police cells in Tongaat,
Mthatha, Monti and Cape Town. He could not dispute that Ms Khedama
had a traumatic experience about her arrest and how the arrest
affected her. His evidence did not take the matter further.
[15]
The
only evidence that was in contradiction with that of Ms Khedama’s
expert was that of Ms Bhayat. After her consultation
with Ms Khedama,
she believed, that she had malingering effects and had exaggerated
her symptoms. Despite this belief, she, ultimately
agreed with Dr
Chohan’s diagnosis that although Ms Khedama showed residual
symptoms of post-traumatic stress disorder, she
would eventually
recover. The main difference in their reports was whether Ms Khedama
exaggerated her experience or not.
[16]
After
analysing the evidence and comparing previous damages awarded in
similar
cases,
the
court
a quo
found
that Ms
Khedama
suffered
from a
terrible
experience and that the emotions she expressed during her testimony
were heartfelt and genuine. The court
a
quo
found that there was no explanation
whatsoever that was given as to why it was necessary to continue to
detain Ms Khedama at the
Tongaat Police Station after it was
ascertained from Captain Barnard that she was not the person sought.
The learned judge found
that the manner in which Ms Khedama was
treated was appalling and should not have been endured by an arrested
person. He held that
pre-trial detention was in no way, shape or form
designed to be a form of punishment. He opined that Ms Khedama had
the most humiliating
experience of being taken away by the police in
front of her employer, and accused of fraud, a fact which must have
become known
to all who knew her. This fact manifested itself in her
being mistrusted at work.
[17]
The
learned judge further found that both Dr Chohan and Ms Bhayat were
agreed that Ms Khedama would probably have suffered post-traumatic
stress disorder and would have required professional assistance. The
learned judge was satisfied that several of Ms Khedama’s
constitutional rights were ignored and that she suffered cruel
treatment at the hands of the members of the police services in
both
her arrest and subsequent detention. According to the learned judge,
her detention and questioning the second time was clearly
malicious.
Even though the learned judge was alive to the fact that malice was
not pleaded by Ms Khedama, he, however, found that
it was clearly
demonstrated in the evidence presented to him.
[18]
The
learned judge then computed Ms Khedama’s damages as follows:
‘
(a)
wrongful
arrest – R100 000
(b)
wrongful
detention, including the deprivation of her liberty and her loss of
amenities of life – R80 000 per day for a period
of 12 days –
R960 000;
(c)
defamation
of character, including her embarrassment and humiliation before her
employer on two occasions, the loss of her reputation
and her loss of
her employment – including the insulting treatment by members
of the police in suggesting that she was carrying
drugs because her
employer was a foreigner, and similar insults with regard to her then
boyfriend on the same basis – R500
000; and
(d)
general
damages for pain and suffering, which included the psychological
shock and trauma as the result of the appalling conditions
to which
she was subjected, and the repeated behaviour of the police members
in detaining her and questioning her for a second
time – R200
000’.
The learned judge felt
constrained to award R1 million as that was the maximum amount
claimed by Ms Khedama on the pleadings.
[19]
With
regard to interest, the learned judge held that interest on the
amount of damages awarded should run from the date of the service
of
the summons, and not, as claimed in the amendment to Ms Khedama’s
particulars of claim delivered on the 2 August 2018,
being from the
date of Ms Khedama’s imprisonment. The summons was served on
the appellant on 20 December 2013, and interest
was then sought ‘a
tempore morae to date of payment.’ It is these orders that are
being appealed pursuant to the Supreme
Court of Appeal granting leave
to this court.
[20]
The
issues to be determined by this court are whether the learned judge
erred in awarding Ms Khedama an amount of R 1 million; and
whether
interest on the award should be altered to run from date of service
of summons, being 20 December 2013, or from the date
of judgment
being 17 January 2022.
[21]
It
was argued on behalf of the appellant that the court
a
quo
erred in computing the damages
under separate headings as Ms Khedama did not plead separate causes
of action in respect of each
category of the damages. It was further
argued that an acceptable approach by our courts was to award a
globular amount for all
the
sequelae
arising from an unlawful arrest and
detention. As a result, the amount awarded was inflated and thus made
it extravagant and this
was contrary to the principle stated by the
Supreme Court of Appeal that the primary purpose of an award for
unlawful arrest and
detention was not to enrich the aggrieved party
but to offer him or her some
solatium
for injured feelings.
[22]
Also
the daily rate tariff for the detention seemingly used by the learned
judge was argued to be irregular by the appellants. It
was further
argued on behalf of the appellant that the interest should have been
awarded to start running from the date of judgment
and not from the
date of summons. The appellant submitted that at the very least one
needed to take into account the monetary value
at the time of the
award, so as not to over compensate a plaintiff, depending on the
circumstances of the matter before the court.
[23]
It
was submitted on behalf of Ms Khedama that the learned judge was
mindful of the various categories of damages, but nevertheless
made a
globular award of R1 million. Therefore, the award was just and
equitable if due regard was had to the harsh and inhumane
conditions
that Ms Khedama was made to endure. It was argued that all this could
have been avoided if the appellant’s employees
were diligent in
their work. With regard to the interest, it was argued that the
respondent ought to have been compensated for
the decrease in buying
power of money in a period between the notional trial date and the
date of demand or summons. Therefore,
it was submitted that there was
nothing wrong with the manner in which the interest was awarded.
[24]
It
is trite that a court of appeal will only interfere with the wide
discretion of a trial judge in determining an appropriate award
if
the award is ‘palpably excessive, and is clearly
disproportionate to the circumstances of the case’.
[1]
The
court of appeal can also interfere if it is shown that the damages
were grossly extravagant or unreasonable
[2]
or the ‘damages are so high as to be manifestly
unreasonable’.
[3]
Innes
CJ, however, in
Hulley
v Cox
[4]
stated
that ‘[a]n appellate tribunal is naturally slow to interfere
with the discretion of a trial judge in the matter of
damages . . .
and we are bound to intervene if we think that due effect has not
been given to all the factors which properly enter
into the
calculation; or if the final award is in our opinion excessive’.
[25]
The
Constitutional Court in
Dikoko
v Mokhathla
[5]
held
that
‘
should
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.’
(references omitted)
[26]
As
correctly referred to by the trial court, ‘it is important to
bear in mind’, when assessing the quantum of damages,
‘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.’
[6]
In
Minister
of Safety and Security v Tyulu
,
[7]
Bosielo AJA held that ‘[i]n 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’. (references omitted)
[27]
One
also has to be mindful of what was said in
Diljan
v Minister of Police
[8]
that
‘
[a]
word has to be said about the progressively exorbitant amounts that
are claimed by litigants lately in comparable cases and
sometimes
awarded lavishly by our courts. Legal practitioners should exercise
caution not to lend credence to the incredible practice
of claiming
unsubstantiated and excessive amounts in the particulars of claim.
Amounts in monetary claims in the particulars of
claim should not be
“thumb-sucked” without due regard to the facts and
circumstances of a particular case. Practitioners
ought to know the
reasonable measure of previous awards, which serve as a barometer in
quantifying their clients’ claims
even at the stage of the
issue of summons. They are aware, or ought to be, of what can
reasonably be claimed based on the principles
enunciated above.’
[28]
The
court a quo also erred when determining an appropriate award by
considering a daily rate. Lamminga AJ in
Phillip
v Minister of Police and another
[9]
stated
in relation to ‘whether the court should calculate the award on
a daily tariff or a single all-inclusive award, that
the nature of
the compensation and the inherent variables applicable in each would
be maintained by trying to place an average
daily tariff on such a
determination. The court went on to state that “the fact that
each case must be considered on its
own merits militates against a
so-called average flat rate per day” and that “a single
all- inclusive award would appropriately
address and express all the
factors to be considered.”’
[29]
This
was reconfirmed and expanded upon in
Motladile
v Minister of Police
[10]
where
the court held ‘[t]he assessment of the amount of damages to
award a plaintiff who was unlawfully arrested and detained,
is not a
mechanical exercise that has regard only to the number of days that a
plaintiff had spent in detention. Significantly,
the duration of the
detention is not the only factor that a court must consider in
determining what would be fair and reasonable
compensation to award.
Other factors that a court must take into account would include (a)
the circumstances under which the arrest
and detention occurred; (b)
the presence or absence of improper motive or malice on the part of
the defendant; (c) the conduct
of the defendant; (d) the nature of
the deprivation; (e) the status and standing of the plaintiff; (f)
the presence or absence
of an apology or satisfactory explanation of
the events by the defendant; (g) awards in comparable cases; (h)
publicity given to
the arrest; (i) the simultaneous invasion of other
personality and constitutional rights; and (j) the contributory
action or inaction
of the plaintiff’. I align myself with the
sentiments expressed that to do so would disregard the particular
facts and other
relevant circumstances peculiar to various matters,
hence the court
a
quo’s
indication
of attaching a daily rate to determine the respondent’s damages
was not appropriate.
[30]
Whilst
I appreciate that the court
a
quo
analysed
various cases and did a comparison of previous awards, it does not
seem to have taken heed of what was said in
Tyulu
and
also in
Minister
of Safety and Security v Seymour
[11]
where
the court held that ‘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.’
Furthermore,
the
court
a
quo
seemed
to
have
sought
to
award an amount for each day of the detention and the unlawful arrest
yet there is one unlawful arrest and thereafter the number
of days
spent in custody. In other words, there must be a distinction, in my
view, between the arrest itself and the detention.
[31]
There
is no doubt in my mind that Ms Khedama’s experience was
traumatic. This was made worse by the appalling conditions of
the
cells at the various places of detention and the manner of her
arrest. There was also malice on the part of the officers involved
when they detained and questioned Ms Khedama for the second time at
the airport even though it was for less than an hour. If they
wanted
to enquire about what became of the previous arrest, they could have
done so without taking her to the room that they had
previously taken
her and only for them to say that they were joking. The learned judge
also misconstrued the evidence in finding
there was some untoward
conduct on the part of the police when they stopped at Monti, where
Ms Khedama spent a night in a prison
cell
en
route
to Cape Town. He seemed to be of
the opinion that as this was a detour, it required some explanation
from the police. However, one
can take judicial notice that Monti
(East London) is actually in the direction of Cape Town if one is
travelling from Durban and
that the stopover at Monti was not a
detour.
[32]
Also,
I do not believe that the fact that she was driven to Cape Town
should be aggravating in any way as one cannot dictate how
the
members of the appellant transport detainees. It must be obvious that
various factors are taken into account before such a
decision is
taken, including the security of other people. Furthermore, there was
no evidence before the court
a quo
that
Ms Khedama’s arrest was publicised. Her employer learnt of her
arrest because he was present when she was arrested. The
award for
defamation therefore was another misdirection.
[33]
Mindful
of the traumatic experience of Ms Khedama and in no way attempting to
diminish or detract therefrom, one must, in my view,
when considering
the appropriateness of the award of the court
a
quo
have
regard to the awards of our courts in even more horrific
circumstances. For instance, in
Mahlangu
,
[12]
several police officers tortured the first plaintiff to make a
confession. Subsequently, he and his supposed co-perpetrator were
placed in ‘solitary confinement for two months in order to
protect them from attack and taunting by fellow detainees who
believed that they killed their relatives.’ They were detained
for eight months and 10 days and were awarded R500 000 by
the
Constitutional Court in May 2021. Also in
W[...]
v Minister of Police
[13]
the
court took into account the appalling conditions of the cells in
which Mr W[...] had been kept, he was subjected to being controlled
by a gang who raped other prisoners and he was raped on two
occasions. Mr W[...] later had his own cell, with a bed, but was then
in isolation. He was detained for 13 months, and was awarded R500 000
in 2014.
[34]
In
my view, the amount awarded by the court
a
quo
and its assessment of the damages
is markedly different to that which this court would award. Taking
into account awards in comparative
cases, the various factors alluded
to in
Motladile
,
and the specific facts of this matter, the amount awarded is out of
proportion to the injury inflicted, short of being lavish
and
extravagant.
[35]
One
must have regard to the particular facts of a case to arrive at an
appropriate award. Previous awards merely provide a comparative
guide
in arriving at an award which is fair and reasonable in the
circumstances.
In arriving at the award, I
have considered the unlawfulness of the time spent in detention and
the conditions experienced by Ms
Khedama in the cells, the impairment
of her dignity, good name and reputation and that her arrest in front
of her employer and
subsequent demotion would have been a humiliating
experience for her. Rather than award her individual amounts, I deem
it appropriate
to award a globular sum in damages. The appropriate
amount which I believe is fair and reasonable compensation for the
damages
arising from Ms Khedama’s unlawful arrest and detention
is R350
000.
[36]
The
next issue to be determined is from when the interest should start
running, is it from the date of judgment or from date of
summons. The
learned judge only stated that interest on the amount of damages
should run from the date of service of the summons,
and not, as
claimed in the amendment of Ms Khedama’s particulars of claim,
delivered on 2 August 2018, from the date of Ms
Khedama’s
imprisonment. The summons was served on the appellant on 20 December
2013, and interest was then sought a tempore
morae to date of
payment. It was argued on behalf of the appellant that the learned
judge erred in this regard as he ought to have
followed the principle
laid in
Takawira
[14]
which
is that the starting point is the date upon which damages are
assessed, which was held to be the date of judgment.
[37]
It
was argued that if one had regard to the amount of damages awarded by
the learned judge and the date upon which interest was
to run, then
Ms Khedama was over-compensated and this could not have been the
purpose of the Prescribed Rate of Interest Act 55
of 1975 (‘the
PRI Act’). It was argued, on the other hand, on behalf of Ms
Khedama that the trial court had not committed
any misdirection in
this regard as our law reports were replete with cases where interest
was ordered to run from the date of demand
or summons.
[38]
The
relevant portions of s 2A of the PRI Act provide as follows:
“
(2)
(a)
Subject
to any other agreement between the parties and the provisions of the
National Credit Act, 2005 (Act 34 of 2005) the interest
contemplated
in subsection (1) shall run from the date on which payment of the
debt is claimed by the service on the debtor of
a demand or summons,
whichever date is the earlier.
. . .
(5) Notwithstanding the
provisions of this Act but subject to any other law or an agreement
between the parties, a court of law,
or an arbitrator or an
arbitration tribunal may make such order as appears just in respect
of the payment of interest on an unliquidated
debt, the rate at which
interest shall accrue and the date from which interest shall run.’
[39]
The
PRI Act, as amended in April 1997, provides that interest on illiquid
claims, like this one, runs from the date of service of
a demand or
summons whichever date is the earlier. Prior to this amendment,
interest ran from date of judgment.
[15]
The amendment altered the common law position laid down in
Victoria
Falls & Transvaal Power Co Ltd v Consolidated Langlaagte Mines
Ltd
,
[16]
as follows:
‘
The
civil law did not attribute
mora
to
a debtor who did not know and could not ascertain the amount which he
had to pay. "
Non
potest improbus videri, qui ignorat, quantum solvere debeat."
(Dig.,
50, 17, 99.) And that rule was adopted by the Courts of Vriesland.
(See Sande, Dec., 3, 14, 9.) It has also been followed
in our own
practice. No South African decision was quoted to us, nor have I been
able to find any, in which interest before judgment
has been awarded
upon unliquidated damages. I do not think, therefore, that they can
be given here. I do not say that under no
circumstances whatever
could such damages carry interest. Cases may possibly arise in which
though the claim is unliquidated the
amount payable might have been
ascertainable upon an inquiry which it was reasonable the debtor
should have made. Such cases, should
they occur, may be left open.
But the present matter stands in a different position. It was not
possible for the defendant to know
or ascertain what damage its
breach of contract had caused, and it cannot therefore on the
principles of our law be held liable
for interest prior to judgment
upon the amount of the damage.’
[40]
The
common law principle was rendered obsolete by section 2A of the PRI
Act which states that interest runs from date on which payment
of the
debt is claimed by service of demand or summons, which ever date is
earlier, subject to the court’s discretion.
[17]
Section 2A(5) of the PRI Act provides the court with a discretion to
‘make such order as appears just in respect of the payment
of
interest on an unliquidated debt, the rate at which interest shall
accrue and the date from which interest shall run’.
[41]
In
Adel
Builders (Pty) Ltd v Thompson
,
[18]
the Supreme Court of Appeal said:
‘
Acting
in terms of ss (5), it was open to the Court, in fixing the date from
which interest was to run, to give effect to its own
view of what was
just in all the circumstances. No question of
onus
was
raised then or in the notice of appeal. Nor could it have been. The
discretion afforded by s 2A(5) was of the nature referred
to in a
long line of cases in this Court from
Ex
parte Neethling and Others
1951
(4) SA 331
(A) onwards. Plainly, if parties wish certain facts and
circumstances to be weighed in the exercise of such a discretion they
must
establish them. But there are no
facta
probanda
.
No enquiry arises as to whether a necessary fact has been
successfully proved. Similarly, absence of proof does not result in
failure on any issue. Indeed, there are no evidential issues to
attract any
onus
.’
[42]
In
Drake
Flemmer & Orsmond Inc and another v Gajjar NO
,
[19]
the Supreme Court of Appeal stated that section 2A(5) provides the
means by which a court in this country can apply the interest
rate
solution. There is no question of onus in relation to section 2A(5).
The court, having regard to all the facts of the case,
gives effect
to its own view as to what would be just (
Adel
Builders
)
and went on to say:
[20]
‘
In
summary, where an attorney’s negligence results in the loss by
a client of a claim which, but for such negligence, would
have been
contested, the court trying the claim against the attorney must
assess the amount the client would probably have recovered
at the
time of the notional trial against the original debtor. Where the
original claim is one for personal injuries, the evidence
available
and the law applicable at the notional trial date would determine the
recoverable amount. The nominal amount in rands
which the client
would have recovered against the original debtor represents the
client’s capital damages against the negligent
attorney. If
justice requires that the client be compensated for the decrease in
the buying power of money in the period between
the notional trial
date and the date of demand or summons against the attorney, the
remedy lies in s 2A(5) of the Interest Act.
If s 2A(5) were invoked,
the court would not necessarily apply the prescribed rate but might
choose instead to adopt a rate which
would neutralise the effect of
inflation.’
[43]
In
De
Klerk v Minister of Police
,
[21]
the Supreme Court of Appeal observed that ‘since the general
damages and medical expenses have been in the value of money
as at
the date of court
a
quo’s
judgment,
mora interest should not run from an earlier date’. In the
matter in casu, the learned judge did not explain why
he awarded the
interest to run from an earlier date than the date of judgment.
However, from the amount awarded it is clear that
the value of money
awarded was as at the date of the court
a
quo’s
judgment.
I do not see a reason why interest should not start running from the
date of judgment as, in my view, this is the date
when the claim was
quantified. The learned judge did not make reference to the erosion
in currency value or anything of the sort.
[44]
The
further misdirection in the court
a
quo’s
judgment,
in my view, is that the interest awarded far exceeds even the amount
claimed by Ms Khedama as at date of demand or summons.
The
legislature could not have intended for this to be the case when s 2A
of the PRI Act was enacted
[22]
given that in a case of unlawful detention, damages are assessed at
current values at the date when judgment is delivered. In my
view, a
just and fair order would have been for interest to run as at the
date of judgment which accords with the discretion envisaged
in s
2A(5) of the PRI Act.
[45]
Turning
now to the aspect of costs, whilst I appreciate that the appellant
has been substantially successful in the appeal, I am
of the view
that it would be appropriate for each party to bear their own costs
occasioned by the appeal. Given the nature of the
issues on appeal
and the clarity which was sought by the appellant in relation to the
daily rate, the respondent ought not to be
burdened with having to
pay the costs relating to the appeal.
[46]
Accordingly,
the following order is made:
1.
The
appeal is upheld with each party to pay its own costs;
2.
The
order
of
the
court
a
quo
is
set
aside
and
substituted
with
the following order:
(a)
the defendant is directed to pay the plaintiff the
sum of R350 000;
(b)
the
defendant is directed to pay to the plaintiff interest on the sum of
R350 000 at the rate of 15.5% per annum calculated from
the date of
judgment, being 17 January 2022 to the date of final payment.
(c)
the
defendant is to pay the plaintiff’s taxed or agreed costs of
the action.
POYO DLWATI JP
APPEARANCES
Date of
Hearing
: 8 September 2023
Date of
Judgment
: 18 March 2024
Counsel for
Appellant
: Adv Govindasamy
SC
Instructed
by
: The State Attorney KwaZulu-Natal
Counsel for First
Respondent : Adv Maharaj
Instructed
by
: Abdul Shaikjee Attorneys Inc
[1]
See:
Salzmann v Holmes
1914 AD 471
at 480, Sandler v Wholesale Coal
Suppliers Ltd
1941 AD 194
at 200 and
Bee v Road Accident Fund
[2018] ZASCA 52
;
2018 (4) SA 366
(SCA) para 47.
[2]
See:
Versfeld v South African Fruit Farms Ltd
1930 AD 452
at 462.
[3]
Black
and others v Joseph
1931 AD 132
at 150.
[4]
Hulley
v Cox
1923 AD 234
at 246.
[5]
Dikoko
v Mokhathla
[2006] ZACC 10
;
2006 (6) SA 235
(CC);
2007 (1) BCLR 1
(CC) paras 57-60.
[6]
See:
Mtolo v Minister of Police [2023] ZAKZPHC 86;
2024 (1) SACR 317
(KZP) para 18.
[7]
Minister
of Safety and Security v Tyulu
[2009] ZASCA 55
;
2009 (5) SA 85
(SCA);
[2009] 4 All SA 38
(SCA)para 26 and reaffirmed in Mahlangu v
Minister of Police
[2021] ZACC 10
;
2021 (2) SACR 595
(CC);
2021 (7)
BCLR 698
(CC)para 51 (Mahlangu).
[8]
Diljan
v Minister of Police
[2022] ZASCA 103
para 20.
[9]
Phillip
v Minister of Police and another (Limpopo) unreported case nos. 457
and 676/2012, as discussed in Mkwati v Minister of
Police [2018]
ZAECMHC 2 para 18, and cited in Latha and another v Minister of
Police and others
2019 (1) SACR 328
(KZP) para 61.4, and C Okpaluba
‘Damages for injuries arising from the infringement of the
rights of persons in police
or prison custody: South Africa in
comparative perspective (part 1)’ (2020) 34(1) Speculum Juris
74 at 84-85, fn 64.
[10]
Motladile
v Minister of Police
[2023] ZASCA 94
;
2023 (2) SACR 274
(SCA) para
17.
[11]
Minister
of Safety and Security v Seymour
[2006] ZASCA 71
,
2006 (6) SA 320
(SCA), [2007] 1 All SA (SCA)
para 20.
[12]
Mahlangu
paras 2-8 and 56.
[13]
Woji
v Minister of Police [2014] ZASCA 108; 2015 (1) SACR 409 (SCA);
[2015] 1 All SA 68 (SCA).
[14]
Takawira
v Minister of Police [2013] ZAGPJHC 138; 2013 JDR 1405 (GSJ).
[15]
SA
Eagle Insurance Co Ltd v Hartley
[1990] ZASCA 106
;
1990 (4) SA 833
(A) at 841C-842B,
and General Accident Versekeringsmaatskappy Suid-Afrika Bpk v Bailey
NO
1988 (4) SA 353
(A) (Bailey).
[16]
Victoria
Falls & Transvaal Power Co Ltd v Consolidated Langlaagte Mines
Ltd
1915 AD 1
at 32-33.
[17]
Griffiths
v Janse van Rensburg NO
[2015] ZASCA 158
;
2016 (3) SA 389
(SCA);
[2016] 1 All SA 643
(SCA)
para 35.
[18]
Adel
Builders (Pty) Ltd v Thompson
2000 (4) SA 1027
(SCA) para 15 (Adel
Builders).
[19]
Drake
Flemmer and Orsmond Inc and another v Gajjar NO
[2017] ZASCA 169
;
2018 (3) SA 353
(SCA);
[2018] 1 All SA 344
(SCA) (Drake Flemmer).
[20]
Drake
Flemmer para 88.
[21]
De
Klerk v Minister of Police
[2018] ZASCA 45
;
2018 (2) SACR 28
(SCA);
[2018] 2 All SA 597
(SCA) para 55 of Roger AJA’s judgment
(minority in which Leach JA, concurred). See also the discussion in
Intramed (Pty)
Ltd (in liquidation) and another v Standard Bank of
South Africa Ltd and others[2007] ZASCA 141;
2008 (2) SA 466
(SCA);
[2008] 2 All SA 394
(SCA) paras 13-17, and the headnote in Bailey.
[22]
S2A
of the Interest Rate Act provides that