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[2024] ZAECMKHC 39
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Khubalo v Minister of Police (1923/2018) [2024] ZAECMKHC 39; 2024 (2) SACR 238 (ECMk) (26 March 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION: MAKHANDA)
CASE
NO: 1923/2018
In
the matter between:
XOLISILE
KHUBALO
PLAINTIFF
and
MINISTER OF
POLICE
DEFENDANT
JUDGMENT
NORMAN
J:
[1]
Plaintiff sued the defendant for damages allegedly resulting from
wrongful and unlawful
arrest, malicious prosecution and
contumelia.
He claimed R200 000.00 for wrongful and
unlawful arrest; R200 000.00 for malicious prosecution and
R50 000.00 for
contumelia
plus costs of suit.
Mr Basson
appeared for the plaintiff and Mr Mili for the defendant. Both
parties agreed that it was not necessary to separate issues
of
liability and
quantum
and the trial proceeded on that basis.
They also agreed that the defendant bore the onus to justify the
arrest and detention whilst
plaintiff had a
duty to begin and bore the onus to prove malicious prosecution.
Pleadings
[2]
In paragraph 5, of the particulars of claim, plaintiff
alleged: That he was wrongfully, unlawfully
and intentionally
arrested without a warrant and wrongfully detained. The members of
the South African Police Service maliciously
set the law in motion
against him by laying false charges of possession of drugs. The
police acted without exercising a discretion
to arrest in a fair and
balanced manner or failed to exercise their discretion properly. They
acted without reasonable and probable
cause and with
animo
injuriandi
. The prosecution failed when charges were withdrawn.
He alleged that he suffered damages as claimed in the first
paragraph
of this judgment.
[3]
Defendant, in his defence, pleaded that plaintiff was
arrested without a warrant in terms of
section 40 (1) (h) of the
Criminal Procedure Act 51 of 1977 (“the CPA”). He was
detained until his first appearance.
He was charged with an offence
of using, being in possession of and dealing in drugs in terms of
section 4 (b) and 5 (b) of the
Drugs and Drug Trafficking Act 140 of
1992 (“the Drugs Act”). The plaintiff was found in
unlawful possession of 324
litres of self- brewed beer and one dagga
plant. The decision not to prosecute the plaintiff was made by
the prosecutor in
terms of the CPA and National Prosecuting
Authorities Act 32 of 1998. Defendant denied that plaintiff
suffered any damages.
In response to a request for further
particulars the defendant confirmed that plaintiff was also charged
with being in unlawful
possession of 324litres of self -brewed beer.
In this regard the defendant alleged a contravention of section 56
(1)(a) to (d)
of the Eastern Cape
Liquor Act 10 of 2003
(“the EC
Liquor Act&rdquo
;).
Issues
for determination
[4]
Parties identified issues for
determination as: The lawfulness of the plaintiff’s
arrest and
detention, whether or not plaintiff was maliciously prosecuted,
whether he suffered any damages and issues relating
to costs.
Plaintiff’s
evidence
[5]
On 22 November 2017 at about 08h00 the members of the police service
arrived at house no.2[...]
[...], N[...] Street, Joza Location,
Makhanda. Plaintiff was informed about the police presence as he was
sleeping in another house
that he rents, house no. 229 B. He was
wearing his night shorts. He brushed his teeth and walked through a
passage, across the
street into house no. 2[...]. As he was
approaching, he saw four police vans parked outside house no.2[...]
[...]. He found
police kicking the door of the storeroom.
He saw Lt. Colonel Pika taking a video of what was happening.
Plaintiff confronted
him. He asked someone to bring his cell phone
and decided to take a video of the police actions, but Lt. Colonel
Pika slapped his
hand and the cellphone fell on the ground. The
police took out about 80 litres of home brewed beer that he referred
to as “
iqhilika”.
The police threw all of it away
on the basis that it was unlawful to brew it. There was an
altercation between him and Lt.
Colonel Pika who threatened to take
the cleverness out of him.
[6]
Lt. Colonel Pika picked a dagga tree or plant which was growing next
to the fence on the
neighbour’s side. It was about a metre away
between the door that was kicked in and the fence. Lt. Colonel
Pika asked
the plaintiff what that was. Plaintiff told him it was a
dagga plant. Lt. Colonel Pika said that gave him reason to arrest
plaintiff.
Plaintiff told him that it was not in his yard. Lt.
Colonel Pika instructed another police officer to handcuff plaintiff
and put him in the van. Plaintiff refused to go into the van wearing
only his night shorts. Lt. Colonel Pika held him by the elastic
waistband of his night shorts and tried to push him towards the van.
At that point his private parts were exposed to the people
who were
there. He felt humiliated and hurt. Another police officer offered to
escort him to the house to put on his clothes. Lt.
Colonel Pika
agreed.
[7]
Thereafter he was taken to the police station. He was charged
with brewing a prohibited
concoction “umshovalale”, being
in possession of dagga, resisting arrest and
crimen injuria
.
He was later detained in the police cells. He found eight (8)
other detainees in the cell. The cell smelt of urine, the
toilet was
blocked and the blankets smelt of dirty feet. He was made to sleep on
a mattress that was about
5 centimetres thick.
[8]
Lt. Colonel Pika decided that plaintiff was not to be taken to court
with the other arrested persons
the following day. He was taken
to another cell. Lt. Colonel Pika came to that cell and asked the
three prisoners that were
there to identify themselves. They each
identified themselves as members of the 24, 26 and 28 gangs,
respectively. Lt. Colonel
Pika wanted to know from the
plaintiff whether he could see where he was. He regarded that
as a threat. He was only taken
to court around lunch time. Upon
arrival at court the magistrate said to him he must leave using the
same door he used to enter
the court room. That was the only time he
went to court. He was released from the police cells around
15h00. He was given
a piece of paper that was entered as part of
Exhibit “A”. The document is on a letterhead of the
Magistrate’s
Court, Grahamstown. It is signed by the clerk of
the court certifying that plaintiff appeared in court on 23 November
2017 and
the case was “Not Placed”. It recorded, briefly
that “
the case was not enrolled because of small quantity of
dagga plant: own use; there was no crimen
iniuria
and
that on illegal brewing of beer, samples thereof had to be sent to
the laboratory for testing; and that the resisting of arrest
charge
will depend on the outcome of the laboratory tests.
” The
relevance of this document shall become apparent when the issue of
malicious prosecution is dealt with later in this
judgment.
[9]
Under cross- examination plaintiff admitted that it was not the first
time for Lt. Colonel
Pika to come to his place. It was put to him
that Lt. Colonel Pika
had been there before and
had warned plaintiff not to sell “
umshovalale
”,
a prohibited concoction according to the defendant.
Plaintiff
denied that he was selling a prohibited concoction and was adamant
that what he was brewing and selling was “
iqhilika
”.
It was also put to him that he used
profanities
at Lt. Colonel Pika. He denied that he swore at
Lt. Colonel Pika or used vulgar language as alleged. It was also put
to him that
he was arrested because of the dagga plant and not in
relation to the concoction. He denied that. He stated that he
heard
from the radio that dagga, for own use, was lawful. He denied
that he told Lt. Colonel Pika that he was not selling but smoking
dagga. The plaintiff closed his case.
Defendant’s case
[10]
Lt. Colonel Pika testified.
On the date of the
hearing his rank was that of a Colonel having been promoted in 2019.
I shall hereinafter address him as Colonel.
He confirmed that he had
been to the plaintiff’s house on a previous occasion. On the
day in question, they were conducting
raids in places that were
selling “
umshovalale
”.
They had information that at the plaintiff’s place dagga and
mandrax were being sold. Upon arrival they found
many people
who were consuming
umshovalale
.
They got resistance from the plaintiff who was shouting and insulting
them. They intended to arrest and release him immediately
using the
SAP 496 option. Plaintiff fought with them refusing to get into the
van, kicked him on the chest and was kicking the
door of the van.
They took out about 324 litres of
umshovalale
from the storeroom.
[11]
They took the ingredients and poured those into
the concoction which was 324 litres and threw it away. As
he was
walking in the yard he saw a dagga plant. He picked it and asked the
plaintiff about it. Plaintiff swore at him and did
not give him an
explanation. He was informed of his constitutional rights and
placed under arrest. Plaintiff resisted arrest.
He swore at him using
vulgar language. This happened in the presence of many people, about
150 people. He allowed plaintiff
to go and put on a
hoodie as he requested. He was taken to the police station where he
was charged and taken to the cells. He could
not recall whether
plaintiff was handcuffed. Thereafter he was taken to court with
other arrested persons in the morning
and was released by court. He
denied that plaintiff was taken to court alone during lunch time or
that he was abused or threatened
by being taken to the alleged gang
members. He denied that he threatened to take cleverness out of the
plaintiff. He further denied
that the cell where plaintiff was
detained smelt of urine. He testified that there are several stacked
up mattresses in the cell.
He denied that the blankets were not
clean. He stated that that police station was newly built and
it was clean. He denied
that he manhandled the plaintiff as alleged.
[12]
Under cross – examination he was adamant that “
umshovalale”
was a prohibited concoction which caused those that consumed it to
lose consciousness with saliva coming out of their mouths, and
he
referred to that condition as “
ukunkonka
”.
He stated that the concoction “was killing our people”.
When asked about the ingredients of “
umshovalale
”
he stated that there was a certain sugar that was being used. He
further stated that possession of dagga was prohibited.
He was
referred to a judgment from the Western Cape Division in the matter
of
Prince
v Minister of Justice and Constitutional Development and Others;
Rubin v National Director of Public Prosecutions and Others;
Acton
and Others v National Director of Public Prosecutions and Others
[1]
.
He testified that he was aware of the judgment. When that judgment
came out, he stated, the defendant sought and obtained
an opinion to
the effect that the police were to continue to arrest and detain
suspects until the Constitutional Court pronounced
on the matter.
[13]
He was adamant that the dagga plant was in the yard that was rented
by the plaintiff.
The plaintiff’s
version was put to him that he had goats in his yard that would have
devoured the plant if it was in his yard.
He had no response
to that version. He was taken through the relevant entries in
the occurrence book that indicated that
the plaintiff’s release
on SAP 496 was scratched off. This, according to plaintiff’s
counsel was evidence that he acted
with malice in detaining
plaintiff. He disputed the entries on the basis that there were no
initials next to the deletions, in
his view, that proved that the
entries were forged. He alleged some corrupt or collusive conduct
between some police officials
and certain attorneys. When asked by
court the reason he did not send the concoction samples to the
laboratory for testing, his
response was that he did not deem that
necessary because he could see what
umshovalale
was doing to
people. He made an example that if he finds a drunk person he
does not need to test the alcohol that the person
consumed. Defendant
closed his case.
Submissions by the
parties
[14]
Mr Basson submitted comprehensive heads of argument, at least 64
pages, in addressing the issues
for determination. He submitted that
the arrest and detention by the defendant was malicious. Plaintiff
was treated badly and was
abused by Colonel Pika. His constitutional
rights were infringed, in particular his rights to integrity and
dignity were violated.
His personal liberty was restrained without
justification. The police could have released him under a summons or
a SAP 495 form
instead of detaining him. The police actions
were unlawful. The court should prefer the plaintiff’s version
to that
of Colonel
Pika as the plaintiff’s
version is corroborated by the objective facts contained in the
extracts from the Occurrence Book.
The fact that
plaintiff was going to be released under the SAP 495 form but that
was scratched out is consistent with
the plaintiff’s version
that he was detained maliciously.
[15]
He conceded that the detention of the plaintiff was for 30 hours and
not two days as pleaded.
He relied on,
inter
alia,
Zealand
v Minister for Justice and Constitutional Development and Another
[2]
,
for the contention that any deprivation of liberty must not only be
effected in a procedurally fair manner but must also be substantively
justified by acceptable reasons. He submitted that the
defendant failed to discharge the onus that there was justification
for the interference with plaintiff’s liberty
[3]
.
Plaintiff was maliciously prosecuted by Colonel Pika because
the charges were withdrawn by the public prosecutor on 13 December
2017. He submitted that the defendant must be found liable to
compensate the plaintiff for damages suffered. In so far as quantum
is concerned he relied on
Minister
of Safety and Security v Tyulu
[4]
for the contention that in the assessment of damages for unlawful
arrest and detention the correct approach is to have regard to
all
the facts of the particular case and to determine quantum of damages
on such facts.
[16]
Mr
Mili, on the other hand, submitted that plaintiff had failed to
discharge the onus on a balance of probabilities, to prove the
unlawful arrest,
detention,
and
contumelia
.
There were no facts pleaded by the plaintiff in the particulars of
claim relating to the reason for the arrest. He relied
on the
decision by Lowe J in
Siyabonga
Matebese v Minister of Police
[5]
for
the contention that the plaintiff in this case failed to discharge
the onus resting on him and the claims were dismissed with
costs. He
further argued that the police had reasonable and probable cause to
arrest the plaintiff since a dagga plant was found
in his yard.
On the issue of
quantum
he relied on the decision of the Full Court of this Division in
Minister
of Police v Loyiso Mahleza
[6]
,
where an award in the sum of R600 000.00 for damages arising
from unlawful arrest and detention was set aside on appeal and
replaced with an award of R50 000.00 as compensation for arrest
and detention for approximately five hours.
Discussion
Was
the arrest and detention unlawful?
[17]
As aforementioned the defendant admitted the arrest and detention. He
bore the onus to justify the plaintiff’s
arrest. He would
discharge the onus if he proved that Colonel Pika entertained a
suspicion, based on reasonable grounds
that the plaintiff was brewing
a prohibited concoction and had thus committed an offence in terms of
the EC
Liquor Act
, or had committed an offence as envisaged in
section 5 (a) or (b) of the
Drugs
Act
,
that of being in possession of the dagga plant or dealing in dagga as
pleaded. In
Minister
of Safety and Security v Sekhoto and Another
[7]
,
the Supreme Court of Appeal found that the duty to justify arrest
does not change even if the arresting officer arrests or purports
to
arrest a person on the strength of a warrant.
[18]
He charged plaintiff with brewing or selling beer or a concoction.
Plaintiff does not rely on this charge
for his claim. Mr Basson had
submitted that this charge was irrelevant. This charge was dealt with
in the defendant’s plea
and in a reply to a request for further
particulars as a contravention of section 56 (1) (a), (b), (c) and
(d) of the EC
Liquor Act. Colonel
Pika also relied on this charge in
evidence in justifying the raid of the plaintiff’s house.
It is for that reason
that something must be said about it. The
raid of the plaintiff’s premises was planned by the members of
the defendant.
On the version of Colonel Pika he had been to the
plaintiff’s house prior to the day in question. He was
concerned about
people being made to consume
umshovalale
as it
was killing them. There were about 150 people who were at the
plaintiff’s place. When asked under cross-examination:
“
Q.
You did not have a search
warrant?
A.
We did not do a search. We saw the dagga and we confiscated
it. We were not there to search. We went there to
confiscate umshovalale.”
[19]
I am not aware of any law that permits the conduct contended for in
that response by Colonel
Pika where the police would simply go into a
person’s property, warrantless and without seeking permission
from the owner
and confiscate what they deem to be illegal. It
is not sanctioned by the provisions of
section 40
of the CPA that is
relied upon by the defendant. It is certainly not permitted in terms
of the Constitution and in particular,
sections 9, 10 and 14 thereof.
[20]
That evidence contradicted his version when he testified in chief
that they were raiding places selling
umshovalale
. It is
apparent from his evidence that he never sought permission to enter
the plaintiff’s premises and confiscate what he
called
“
umshovalale
”. That conduct was unlawful. His
testimony contradicted to a large extent the version that was put to
the plaintiff. Those
contradictions are material in that although it
was put to plaintiff that he was not arrested for brewing the
concoction, there
was a charge preferred against the plaintiff and
was based on unlawful brewing of “
umshovalale
”.
Colonel Pika sought to dispute recordals made in the Occurrence Book
by suggesting that they were forged by police
officers working with
certain lawyers and that he was going to investigate that. The claim
was instituted on 25 June 2018. The
defendant delivered his plea on 1
February 2019. There was ample time for him to investigate
because not only was he an officer
that led the raid he was the
complainant. He claimed forgery when he was confronted with entries
in the Occurrence Book indicating
that plaintiff was going to be
released on the SAP 495 form. His testimony in this regard
contradicted what he himself had volunteered
that they were going to
release plaintiff immediately on the SAP 495 form. His
testimony of forgery was clearly false. He
was making up his answers
whenever he was confronted with objective facts. His testimony that
all of
umshovalale
was destroyed differed from the version put
to the plaintiff that
umshovalale
was taken to the police
station and was entered into the SAP13 register. On his version the
entry in the SAP 13 was made when
umshovalale
had already been
destroyed. He testified that because of the strong smell of
umshovalale
it could not be taken to the police station.
[21]
Section 56 (1) of the EC
Liquor Act
provides
:
“
56.(1)
No person may have in his or her possession or custody or under his
or her control , consume or sell, supply or give to any
person-
(a)
any concoction manufactured by the
fermentation of treacle, sugar or other substances and known as
isishimiyana, hopana, qediviki, skokiian, uhali, or Barberton, but
excluding indigenous qhilika;
(b)
any concoction which, though called by
another name is similar or substantially similar to any
of the
concoctions referred to in paragraph (a);
(c)
any concoction manufactured by the
fermentation of any substance the consumption of which would,
in the
opinion of the MEC in consultation with the Minister responsible for
health, be prejudicial to the health and well- being
of the
population of the Republic and specified by him or her by a notice in
the Gazette; or
(d)
any drink manufactured by the
distillation of any concoction referred to in paragraph (a),(b),or
(c).
(2)
The MEC may, in consultation with the
Minister responsible for health, at any time by a like
notice
withdraw or amend any notice issued under subsection (1) (c).”
[22]
Plaintiff maintained that he was selling
iqhilika
and not
umshovalale
. The indigenous
iqhilika
is
excluded from prohibited concoctions or drinks. The prosecutor
directed that samples of the concoction found at the plaintiff’s
place should be sent to the laboratory for testing. Colonel Pika did
not deem that necessary. Colonel Pika conceded that he is
not a
chemist. He, accordingly, does not possess the scientific
expertise to identify a concoction without the benefit of
laboratory
results. His insistence that there was no need to do the tests was
unreasonable and obstructive, in my view.
Umshovalale
is
not listed amongst the prohibited substances. Colonel Pika did not
suggest that
umshovalale
is similar or substantially similar
to the concoctions listed in
section 56
(1) (a). If he had
reasonable and probable cause to believe that
umshovalale
was
killing people, his defiance of the advice from the prosecutor to
have the concoction tested is inconsistent with that belief.
A
prudent police officer would have gone ahead with the testing process
for the well - being of the community. It is only through
that
scientific process that the MEC in consultation with the Minister of
Health may take appropriate steps as provided for in
the EC
Liquor
Act. I
accordingly reject the version of Colonel Pika that the
concoction that was thrown away was a prohibited concoction and not
iqhilika
. The arrest of the plaintiff in relation thereto was
accordingly unlawful.
[23]
An officer making a warrantless arrest has to comply with the
jurisdictional prerequisites set out in
section 40
(1) (b) of the
CPA. Those are that (i) the arrestor must be a peace officer; (ii)
the arrestor must entertain a suspicion;(iii)
the suspicion must be
that the arrested person committed an offence referred to in Schedule
1; and (iv) the suspicion must rest
on reasonable grounds. “
If
the prerequisites are satisfied a discretion whether or not to arrest
arises. The officer has to collate facts and exercise his
discretion
on those facts. The officer must be able to justify the exercising of
his discretion on those facts. The facts may include
investigation of
the exculpatory explanation provided by the accused person
[8]
.
[24]
On Colonel Pika’s version he knew that the plaintiff was the
occupant of the house. He went there
to ‘raid’ the place
for
umshovalale
and drugs. He did not ask for permission to
enter the premises. Seeking permission or consent was even more
essential where he went
there having received information that there
were prohibited substances that were being sold at the place. On his
version it appears
that he did not ask the plaintiff anything about
the alleged unlawful concoction. They simply took out of the
storeroom and threw
it away. He walked about the yard and found a
dagga plant. He stated that the dagga plant was in the plaintiff’s
yard. He
simply asked one question, “What is this?”,
as soon as he got the response that it was dagga he effected the
arrest.
[25]
His evidence in relation to the discovery of the dagga plant is
contradictory. In his evidence
in chief he stated that plaintiff did
not answer when he confronted him with the dagga plant but simply
swore at him. In his statement
filed in the docket and in what was
put to the plaintiff he stated that plaintiff responded that he was
not selling dagga but was
smoking it. He did not change his
evidence even after he had been afforded an opportunity, as he
requested, to refresh his
memory by reading his statement. I
find that Colonel Pika was a poor witness that performed badly under
cross- examination.
It is apparent from his evidence that he
was intent on arresting and detaining the plaintiff. That attitude is
consistent with
the evidence of the plaintiff that he was wanted to
take the cleverness out of him. I accordingly reject his evidence
where it
is at variance with that of the plaintiff. I accept
the plaintiff’s evidence. He did not embellish his evidence and
his recollection of the events is supported by what the police
recorded in their Occurrence Book.
[26]
Colonel Pika failed to investigate the plaintiff’s contention
that the dagga plant was in the neighbour’s
side of the fence.
He effected the arrest in circumstances where he failed to
investigate the defence of the plaintiff or to exercise
his
discretion to arrest and detain carefully. The fact that the
prosecutor refused to place the matter on the roll because, amongst
others, there was “
small quantity
of dagga (plant)”
,
does not support his evidence that the dagga plant was big and could
not be weighed. His version in this regard falls to be rejected.
[27]
In so far as the arrest for resisting arrest and
crimen iniuria
is concerned, the prosecution made it apparent that the resisting
arrest charge was dependent on the outcome of the sample tests.
He or
she declined to pursue the charge of
crimen iniuria
.
[28]
Section 12 (1) of the Constitution provides:
“
12(1) Everyone
has a right of freedom and security of the person which includes a
right –
(a)
not to be deprived of freedom a beautifully without just
cause
(b)
not to be detained without trial
(c) to be free
from all forms of violence from either public or private sources
(d) not to
be tortured in anyway and
(e)
not
to be treated or punished in a cruel, inhuman or degrading way.”
[29]
Theron J in
De
Klerk v Minister of Police
[9]
,
dealt with specific requirements when one is dealing with a claim
under the
actio
iniuriarum
for unlawful arrest and detention. They are:
a)
the plaintiff must establish that his liberty has been
interfered with,
b)
the plaintiff must establish that this interference occurred
intentionally. In claims for unlawful arrest, a plaintiff need only
to show that the defendant acted intentionally in depriving his
liberty and not that the defendant knew that it was wrong to do
so,
c)
the deprivation of liberty must be wrongful, with the onus on
the defendant to show why it is not, and
d)
the
plaintiff must establish that the conduct of the defendant must have
caused, both legally and factually, the harm for which
compensation
is sought.”
Rabie CJ in
Minister
of Law and Order v Hurley
[10]
,
found
that an arrest constitutes an interference with the liberty of the
individual concerned.
[30]
Having considered all the evidence in its totality the court is
satisfied that the plaintiff
discharged the onus on a balance of
probabilities and has proved that the arrest and detention were
wrongful. The plaintiff
had walked across to house 2[...] [...]
where the police were, wearing only his night shorts. It was
how he was manhandled
by Colonel Pika that his private parts were
exposed to the members of the community. The conduct of Colonel Pika
in this regard
was unlawful and wrongful. Plaintiff succeeded in
proving humiliation and degradation that impaired his honour as a
free citizen.
[31]
In so far as malicious prosecution is concerned plaintiff
failed to discharge the onus resting on
him for these reasons:
(a)
The prosecution had the presence of mind not to enrol the case. The
prosecutor made it clear
that the charges levelled by the police
against plaintiff had no merit and had endorsed the docket
accordingly.
(b)
On the plaintiff’s version he appeared in court only once and
nothing was said by
the prosecutor in court but the Magistrate told
him to use the same door he used to leave the court room.
(c)
It is apparent from all the evidence that the prosecution did not
associate itself
with the police actions instead exercised its
independent discretion in ensuring that plaintiff was not subjected
to unnecessary
prosecution
[11]
.
(d)
I have no doubt that if plaintiff believed that the prosecutor acted
maliciously, he would
have cited the National Director of Public
Prosecutions as a party in these proceedings. The claim based
on malicious prosecution
must accordingly fail.
[32]
For all the above reasons, I accordingly find that the defendant
failed to discharge the onus
resting on him to justify both the
arrest and detention. I am satisfied that the arrest and
detention was malicious and without
reasonable cause. It
follows that the defendant is liable to compensate plaintiff for all
proven damages.
Quantum
of damages
[33]
In the determination of an award for damages for unlawful arrest and
detention, a court is seized
with a discretion to find what is fair
and reasonable to all parties, taking due cognisance of public
policy. In
Hulley
v Cox
[12]
,
the Appellate Division stated that:
“
We cannot allow
our sympathy for the claimant in this very distressing case to
influence our judgment.
”
[34]
The court must balance interest of both parties. In compensating
plaintiff it must not pour out
largesse from the horn of plenty at
the defendant’s expense, as the court cautioned in
Pitt
v Economic Insurance Co Ltd
[13]
.
[35]
When defining the purpose of an award of damages, the Constitutional
Court, in
Mahlangu
and Another v Minister of Police
[14]
,
held that damages are awarded to deter and prevent future
infringements of fundamental rights by the organs of state. They are
a gesture of goodwill to the aggrieved and they do not rectify the
wrong that took place.
[36]
Both parties referred the court to various authorities.
Mr
Basson further relied on various cases with awards that were
unfortunately not based on detention for 30 hours but ranged between
4 to 9 days. He, for instance, relied on
Xakambana
v Minister of Police
[15]
.
This case is distinguishable from the facts in Xakambana, where the
plaintiff was arrested and detained for two days and was subjected
to
anal rape. He further submitted that the court should award the
damages as claimed in relation to malicious prosecution and
relied
on,
inter
alia
,
Patel
v National Director of Public Prosecutions and Others
[16]
,where an award for R900 000.00 was made for malicious
prosecution. The facts of this case differ materially from the facts
in the
Patel
case.
First, in
Patel
the claim was for malicious prosecution and was directed that all the
prosecutorial authorities such as the National Director of
Public
Prosecutions. Second, unlike in this case, in
Patel
,
the prosecutors took a decision to prosecute the plaintiff who was a
Judge President of the KwaZulu Natal Division. He was made
to appear
in the criminal court and the matter was highly publicised. It is for
that reason therefore that to make an award similar
to the one in
Patel’s
case
would be inappropriate.
[37]
In
Motsai
v Minister of Police
[17]
the
court
awarded an amount of R50 000 for one night. Having considered
the facts and circumstances of this case including the
recent awards
made in this Division in comparable cases, I accordingly find an
award in the amount of R80 000.00 would be appropriate
for unlawful
arrest and detention for 30 hours and R20 000.00 for
contumelia
.
In respect of malicious prosecution, the claim is dismissed.
[38]
The court finds no basis to depart from the normal rule that
the successful party is entitled to costs.
Although the claim for
malicious prosecution has been dismissed plaintiff achieved
substantial success in this action and should
be entitled to the
costs of the action. Mr Basson sought an order for costs on an
attorney and client scale. I disagree because
there are no
circumstances that warrant imposition of a punitive cost order.
ORDER
[39]
In the result the following Order is made:
39.1 Defendant is
liable to compensate plaintiff for damages suffered and is ordered to
pay to plaintiff a sum of R100 000.00
(One Hundred Thousand
Rand) as and for damages arising from unlawful arrest, detention and
contumelia.
39.2 Interest
on the aforesaid amount at the prescribed rate from the date of this
judgment until date of final payment.
39.3. Defendant
is ordered to pay plaintiff’s costs of suit.
T.V. NORMAN
JUDGE OF THE HIGH
COURT
APPEARANCES:
For
the PLAINTIFF:
MR
BASSON
Instructed
by:
MGANGATHO
ATTORNEYS
7
Somerset Street
MAKHANDA
REF:
Mr AF Basson/nx/K0034
TEL:
046 622 2206
FAX:
086 535 5360
EMAIL:
ashley.basson@emlaw.co.za
For
the DEFENDANT:
MR
MILI
Instructed
by:
MILI
ATTORNEYS
110
High Street, Eskom Building
MAKHANDA
REF:
D. Mili/Nandi/K250
TEL:
046 622 7076
FAX:
046 622 6692
EMAIL:
dmili@itsnet.co.za
Matter
heard on:
12
February 2024, 13 February 2024, 14 February 2024, 16 February
2024 & 27 February 2024
Judgment
Delivered on:
26
March 2024
[1]
Prince
v Minister of Justice and Constitutional Development and Others;
Rubin v National Director of Public Prosecutions and Others;
Acton
and Others v National Director of Public Prosecutions and
Others
[2017] 2 All SA 864 (WCC).
[2]
Zealand
v Minister for Justice and Constitutional Development and Another
[2008] ZACC 3
;
2008 (6) BCLR 601
(CC);
2008 (2) SACR 1
(CC); 2008(4) SA 458 (CC).
[3]
Mahlangu
and Another v
Minister
of Police
2021
(7) BCLR 698
(CC);
2021 (2) SACR 595
(CC) at para 32.
[4]
Minister
of Safety and Security v Tyulu
2009 (2) SACR 282
(SCA);
[2009] 4 ALL SA 38
(SCA) at para 26
[5]
Siyabonga
Matebese v Minister of Police
,
Case No. 2224/ 2017, delivered on 18 June 2019, Eastern Cape
Division, Port Elizabeth.
[6]
Minister
of Police v Loyiso Mahleza
(CA 106/2020) [2021] ZAECGHC 83 (14 September 2021)
[7]
Minister
of Safety and Security v Sekhoto and Another
2011
(1) SACR 315
SCA at paras 28 – 36. See also
Gigaba
v Minister of Police and Others
[3469/2020]
2021 ZAGPHC 55
,
2013 All SA 495
(GP) (11 February 2012)
at para 58 – 61 D,
Malebe
Thema and Another v Minister of Safety and Security and Others
2021 (2) SACR 233
(GP) at para 10,16-19 and 23.
[8]
Minister
of Police v Dhali,
(CA
327/2017) ZAECGHC16 (26 February 2019) at para 13.
[9]
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) (22 August 2019).
[10]
Minister
of Law and Order v Hurley
1986 (3) SA 568
at 589 EM – F.
[11]
S
v Lubaxa
2001
(2) SACR 703
(SCA) at para 19.
[12]
Hulley
v Cox
1923
AD 234
at 246,
[13]
Pitt
v Economic Insurance Co Ltd
1957
(3)
SA 284
(D) at 287 E- F Holmes J.
[14]
Mahlangu
and Another v Minister of Police
(CCT
88/20)
[2021] ZACC 10
,
2021 (7) BCLR 698
(CC),
2021 (2) SACR 595
(CC) (14 May 2021).
[15]
Xakambana
v Minister of Police
2021 JOL 49407 (ECM).
[16]
Patel
v National Director of Public Prosecutions and Others
2018
(2) SACR 420 (KZD).
[17]
Motsai
v Minister of Police
(A1174/2006) [2010] ZAGPPHC 14 (4 March 2010).