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[2022] ZALMPPHC 45
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Claasens v Nakana and Others (HCAA01/2022) [2022] ZALMPPHC 45 (16 August 2022)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO: HCAA01/2022
REPORTABLE:
/NO
OF
INTEREST TO THE JUDGES: YES
REVISED.
Date: 16/8/2022
In the matter between:
JOHANNES
CLAASSENS
APPELLANT
(ID NO: [....])
and
MAROPENE FRANS
NAKANA
FIRST RESPONDENT
MINISTER OF
POLICE
SECOND RESPONDENT
WARRANT OFFICER
WILLIAMS –
THIRD RESPONDENT
STATIONED AT THE SOUTH
AFRICAN
POLICE OFFICES,
WESTERNBURG,
POLOKWANE, LIMPOPO
JUDGMENT
MAKGOBA JP
[1]
This is an appeal against the judgment and order of a single Judge of
this Division
(Mdhuli AJ).
Leave to appeal was
granted by the Court
a quo
as regards to paragraph 6 of her
order and leave to appeal was granted by the Supreme Court of Appeal
as regards to paragraph 2
of the order of the Court
a quo
.
[2]
The present appeal is specifically in respect of:
2.1.
Paragraph 2 of the order of the Court
a quo
insofar as it
relates to the amount representing general damages awarded to the
Appellant for his claim of unlawful arrest and
detention.
2.2.
Paragraph 6 of the order of the Court
a quo
in its entirety.
The Court
a quo
had dismissed the Appellant’s claim 2 of
malicious prosecution irrespective of the fact that the First
Respondent had conceded
and admitted liability at the trial.
[3]
At the inception of the trial the First to Third Respondents conceded
to the merits 100%
in favour of the Appellant in respect of claim 1
of Unlawful Arrest and Detention. The First Respondent conceded to
the merits
100% in favour of the Appellant in respect of claim 2 of
Malicious Prosecution.
[4]
It is clear from the above that the trial was to be proceeded with
only in respect
of determination of the quantum of damages for both
claims 1 and 2. The Court
a quo
awarded an amount of R 40
000.00 for claim 1 (unlawful arrest and detention) and dismissed
claim 2 (malicious prosecution). The
claim for malicious prosecution
was against the First Respondent only.
[5]
The main issues on appeal are the following:
5.1. Whether
or not the Court
a quo
erred in awarding the Appellant an
amount of R 40 000.00 for general damages for his claim for unlawful
arrest and detention.
5.2. Whether
or not the Court
a quo
erred in dismissing the Appellant’s
claim for malicious prosecution against the First Respondent despite
the fact that the
First Respondent conceded to the merits 100% in
favour of the Appellant.
Appellant’s
personal circumstances and circumstances relating to the Arrest and
Detention
[6]
The Appellant is a registered and professional conservationist with
business address
situated at Farm Wildebeesfontein, Polokwane.
He has been practicing
and doing business as a professional conservationist for 45 years. At
the time of the arrest he was 60 years
old and he is currently 67
years old.
[7]
The Appellant was unlawfully arrested on the 1
st
of July
2015 at approximately 14:30pm and detained until 09:30am on the 3
rd
of July 2015 when he was released on bail.
On the date of his
arrest, 16 Police Officers in three motor vehicles came to arrest the
Appellant at his farm. The First Respondent,
an ex-police officer was
also present. In fact, the First Respondent is the one who laid a
complaint to the Police and caused the
Appellant to be arrested.
The Police were
aggressive towards the Appellant and his son. His rights were never
read to him when he was arrested and the police
refused to listen to
him. The arrest was made in the presence of the Appellant’s
wife, son, employees and bystanders.
[8]
The Appellant was physically dragged out of his property and shoved
into the police
van when he struggled to get into the van as his
hands were handcuffed behind his back. During his arrest he suffered
an injury
to his elbow which caused tremendous pain and suffering.
On the way to the police
station the police drove the police van in a reckless manner which
caused the Appellant to fall from the
benches inside the police van
as he could not hold on.
[9]
Upon arrival at the police station he was instructed to alight from
the vehicle. He
struggled to alight and shuffled on his buttocks to
get out of the vehicle. This was funny to the 3
rd
Respondent, the police officer.
At the police station the
Appellant was made to sign a document without any explanation. When
he indicated to the 3
rd
Respondent that he does not know
what he is signing for, the 3
rd
Respondent indicated to
him that he should not be “hardegat” he must just sign.
He was then put in the
cells. He was scared and he was searched from top to toe by two black
males for money and cigarettes. He
then began praying Psalm 23.
[10]
The unchallenged evidence of the Appellant was that the cell was
stinking of human faeces, vomit
and urine. He was shown a place to
sit on the wet floor next to the shower. The floor was wet from
shower water and urine. It was
extremely cold in the cells. The
Appellant was still in his work clothes and was not wearing warm
clothing. The cell was approximately
4m x 8m and there were
approximately 22 other people in the cell.
[11]
The Appellant did not receive any blankets but was given one by one
of his inmates. The blanket
was dirty and stinking of human odour. He
could feel lice crawling all over his body. The cell was cold as it
was in the middle
of winter and the floor was cement and wet. The
cell further did not have a ceiling and the roof was open. The wind
blowing in
had the same effect as a freezer.
The Appellant could not
sleep during his first night. There was no space for him to sleep. He
was sitting upright the entire evening.
The Appellant testified about
the horror of the chanting of the inmates in the other cells and
screaming of persons being assaulted.
The second night the cell was
cold as hell according to the Appellant. The Appellant indicated that
he never before experienced
pain in his life like that night.
[12]
The Appellant and Mr. Kubai, his employee were cuffed to each other
on the second morning, and
taken to the residence of the Appellant,
for a purpose unknown to the Appellant.
The Appellant broke down
in tears and begged the police not to return him to the cells but to
keep him in the holding cell after
the visit to his farm on the 2
nd
of July 2015. The Appellant further indicated that he still breaks
down in tears if he relives the incident.
[13]
On the morning of the 3
rd
of July 2015, he could not get
up as he was frozen due to the cold. His body was stiff. He rolled
over on his knees to get up and
tried to hold on to the walls but
could not get up. Two other inmates helped him getting up by lifting
him under his arm pits.
They helped him walk as he struggled to walk.
This was extremely traumatizing and humiliating to the Appellant.
When he got home, he
bathed two or three times scrubbing his skin to get rid of the smell.
He was bitten by ticks and fleas all
over his body.
[14]
It is clear from the judgment of the Court
a quo
that the
Appellant more than once broke down in tears during his testimony.
The Appellant was still clearly troubled about the
incident even
during the trial.
[15]
After the incident the Appellant indicated that he went for therapy
at Pastor Retief Booysen.
He was extremely humiliated, became
depressed, suffered from restlessness, became aggressive and could
not focus or concentrate
at work after the incident.
Pastor Booysen was called
as a witness. Pastor Booysen confirmed he saw the Appellant twice
after the incident. He further indicated
that the Appellant lost his
believe in the justice system and he confirmed the trauma that the
Appellant suffered.
The general approach
in the assessment of damages for unlawful arrest and detention.
[16]
In this matter the Appellant suffered an arbitrary deprivation of
personal liberty and was humiliated
and traumatized by virtue of his
unlawful arrest and detention.
[17]
In deprivation of liberty the amount of damages is in the discretion
of the Court. Factors which
can play a role are the circumstances
under which the deprivation of liberty took place; the presence or
absence of improper motive
or
malice
on the part of the
Defendant; the harsh conduct of the Defendants; the duration and
nature of the deprivation of liberty; the status;
standing; age;
health and disability of the Plaintiff; the extent of the publicity
given to the deprivation of the liberty; the
presence or absence of
an apology or satisfactory explanation of the events by the
Defendant; and awards in previous comparable
cases.
[18]
Section 35(2)(e) of the Constitution of the Republic of South Africa
provides that everyone who is detained,
including every sentenced
prisoner has the right to conditions of detention that are consistent
with human dignity.
Therefore other factors
that play a role are the fact that in addition to physical freedom,
other personality interests such as
honour and good name as well as
constitutionally protected fundamental rights have been infringed;
the high value of the right
to physical liberty; the effects of
inflation; the fact that the Plaintiff contributed to his or her
misfortune; the effect an
award may have on the public purse, and,
according to some, the view that the
actio iniuriarum
also has
a punitive function.
[19]
The above stated factors are extracted from various case law and set
out by the authors of
Visser & Potgieter: Law of Damages,
Third Edition on pages 545 – 548
.
[20]
The purpose of an award of damages in the context of a matter such as
the present is a process
in which one seeks to compensate a claimant
for deprivation of personal liberty and freedom and the attendant
mental anguish and
distress. In
Masisi
v Minister of Safety and Security
[1]
it was held that the right to liberty is an individual’s most
cherished right, and one of the fundamental values giving inspiration
to an ethos premised on the freedom, dignity, honour and security.
That its unlawful invasion therefore struck at the very fundamental
of such ethos.
[21]
The Supreme Court of appeal held as follows in
Minister
of Safety and Security v Tyulu
[2]
:
“
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 made 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 (
Minister
of Safety and Security v Seymour
2006 (6) SA 320
(SCA) at para 17;
Rudolph and Others v Minister of Safety and Security and Another
2009
(5) SA 94
(SCA) ([2009] ZASCA 39) paras 26 – 29).
”
[22]
In
Minister
of Safety and Security v Seymour
[3]
Nugent JA stated at paragraph 17:
“
The
assessment of awards of general damages with reference to awards made
in previous cases is fraught with difficulty. The facts
of a
particular case need to be looked at as a whole and few cases are
directly comparable. They are a useful guide to what other
Courts
have considered to be appropriate but they no higher value than
that.”
At page 326, in paragraph
20, the learned Judge went on to express the view that when assessing
damages for unlawful arrest and
detention Courts are not extravagant
in compensating the loss as there are many legitimate calls on the
public purse to ensure
that other rights that are no less important
also receive protection.
[23]
I do not understand the Supreme Court of Appeal to be suggesting that
heavier amounts for damages
should not be awarded in deserving cases,
neither do I see that as encouraging infringement of human rights.
The Courts will always
be guided by the facts of each case and not
taking its eyes off the purport and object of the protection of such
rights as enshrined
in the Constitution.
In
casu
, I shall
be guided by the particular facts and circumstances of the case in
determining the appropriate amount of damages.
[24]
Claasen J held as follows in
Liu
Quin Ping v Akani Egoli (Pty) Ltd t/a Gold Reef City Casino
[4]
:
“
Deprivation
of one’s liberty is always a serious matter. The contention is
reflected in fact that our Constitution has entrenched
the freedom
and security of the person as part of the Bill of Rights. Section 12
of the Constitution of the Republic of South Africa
Act 108 of 1996
states the following:
“
(1)
Everyone has the right to freedom and security of the person, which
includes the right –
(a) not to be deprived
of freedom arbitrarily or without just cause;
(b) not to be detained
without trial”.”
It is important to note
that in the aforementioned case, as in the present case, we are also
dealing with the violation of important
constitutional rights,
including the Appellant’s rights to human dignity, freedom and
security of the person, freedom of
movement and to conditions of
detention that are consistent with human dignity.
[25]
Where a right is said to be so important that it has been afforded
constitutional protection,
any damages to be awarded should reflect
that importance. In considering quantum, sight must not be lost of
the fact that the liberty
of the individual is one of the fundamental
rights of a man in a free society, which should be jealously guarded
at all times and
there is a duty on the Courts to preserve this right
against infringement. Unlawful arrest and detention constitute a
serious inroad
into the freedom and rights of an individual.
See:
Thandani v Minister of Law and Order
1991 (1) SA 701
(ECD) at 707 A
.
The present case displays
a reckless disregard of the rights of the Appellant by members of the
South African Police Service.
[26]
The Appellant in the present case was detained without a shred of
justification and detained
in what was very humiliating, fearful and
degrading circumstances entailing that he had to undergo a body
search by other inmates
in the cell, without being able to defend
himself. Quite apart from the normal common law rights to personal
freedom, liberty,
dignity and reputation, a number of constitutional
rights as outlined above were infringed. The Appellant did absolutely
nothing
wrong.
The conduct of the police
in effecting the arrest of the Appellant in those circumstances
amounts to interference with not only
the Appellant’s rights to
his freedom but also the personal right to human dignity.
What the Appellant
experienced was hurtful and most hurtful in that no attempt was made
by the defendants in the Court
a quo
to provide any form of
justification.
[27]
It is for all the above reasons that I am of the view that the
Appellant is entitled to a profound
and substantial award as general
damages for unlawful arrest and detention.
In the result the Court
a
quo
erred in awarding such an insignificant and inadequate amount
of R 40 000.00 as damages suffered by the Appellant.
Judgment of the Court
a quo
[28]
The Court
a
quo
correctly
referred to the case of
Rahim
and 14 Others v Minister of Home Affairs
[5]
where it was stated:
“
The
deprivation of liberty is indeed a serious matter. In cases of
non-patrimonial loss where damages are claimed the extent of
damages
cannot be assessed with mathematical precision. In such cases the
exercise of a reasonable discretion by the Court and
broad general
considerations play a decisive role in the process of quantification.
This does not, of course absolve a plaintiff
of adducing evidence
which will enable a Court to make an appropriate and fair award. In
cases involving deprivation of liability
the amount of satisfaction
is calculated by the Court ex aequo et bono. Inter alia the following
factors are relevant:
27.1. circumstances
under which the deprivation of liability took place;
27.2. the conduct of
the defendants; and
27.3. the nature and
duration of deprivation…”.”
[29]
However, the Court
a quo
failed to correctly apply the above
case law to the facts of this case.
[30]
The Court
a quo
should have applied its mind to the principle
that in modern South Africa a just award for damages for wrongful
arrest and detention
should express the importance of the
constitutional right to individual freedom, and that it should
properly take into account
the facts of the case, the personal
circumstances of the victim and the nature, extent and degree affront
to his dignity and his
sense of worth.
Comparable cases on
quantum of damages
[31]
Counsel for the Appellant referred to and relied on the following
cases as a guide for determining
the quantum of the Appellant’s
general damages for unlawful arrest and detention.
31.1.
Van der
Laarse v Minister of Police and Another
(31378/2012)
[2013]
where Ebershon AJ awarded R 280 000.00 to the Plaintiff
for 3 nights in jail. In this particular case it was common cause
that
the plaintiff was treated very cruelly and under horrifying
circumstances from the moment of his illegal arrest, which took place
in the presence of acquaintances of him, tourists and the general
public by the second defendant and his subordinates. He was detained
in a hopelessly overcrowded container under filthy conditions. He was
arrested by the second respondent who acted as if he was
power drunk
and in a disgraceful display to all those who beheld what was going
on.
The amount of R 280
000.00 in today’s terms equals to roughly R 425 000.00 in terms
of the inflation calculator.
31.2. In
Bouwer v
Minister of Safety and Security
delivered by Judge Du Plessis
on the 8
th
of December 2008 in North Gauteng High Court an
award of R 205 000.00 (today it would be approximately R 401 815.59)
was made for
a police official who was unlawfully arrested in front
of his peers and detained for 3 days and 3 nights.
31.3.
MX v Minister
of Police
(1329/2016) [2021] ZAECMHC 1 (12 January 2021)
an award was made for R 340 000.00 to a Plaintiff who was unlawfully
arrested and detained for 2 nights in jail. The Plaintiff
in this
matter was however sodomised and assaulted while he was in custody.
[32]
Counsel for the Appellant submitted that taking into consideration
the above authorities it is
clear that the Court
a quo
erred
in awarding R 40 000.00 to the Appellant for his unlawful arrest and
detention for approximately 3 days. That the order of
the Court
a
quo
in this regard does not commensurate the injury that was
inflicted to the Appellant. I agree.
[33]
Counsel submitted further that in the light of the comparable and
similar cases referred to above,
an amount of R 400 000.00 for
general damages would be just and fair under the circumstances.
[34]
I have had regard to the cases referred to by Counsel and I am
mindful that they only serve as
a guide without losing sight of the
facts of this case. The ultimate purpose of the award is to
compensate the Appellant for his
loss of freedom and for his injured
feelings and not to enrich him. I have to balance such interests when
compensating him. I am
accordingly of the view that an amount that
would be commensurate with the injury sustained is an amount of R 400
000.00.
Damages for Malicious
Prosecution
[35]
At the trial in the Court
a quo
the First Respondent (First
Defendant in the Court
a quo
) conceded and thus admitted
liability for damages suffered by the Appellant arising from the
malicious prosecution of the Appellant.
Accordingly, the First
Respondent admitted setting the law in motion and that he instigated
or instituted the criminal proceedings
against the Appellant. That he
acted without reasonable and probable cause, acted with malice (or
animo iniurandi
) that is, with intention to injure the
Appellant and that such prosecution failed. The prosecution of the
Appellant was based on
the same information relied upon for his
unlawful arrest and detention.
[36]
The Court
a quo
erred in dismissing the Appellant’s
claim for malicious prosecution against the First Respondent despite
the concession and
admission of liability made by the First
Respondent at the trial.
It is common cause that
the Appellant and the First Respondent agreed at the inception of the
trial that the First Respondent concedes
100% to the merits of the
Appellant’s claim for malicious prosecution.
[37]
The only issue that was left was for the trial Court to determine the
quantum of damages suffered
by the Appellant arising from the claim
for malicious prosecution. This Court will accordingly proceed to
determine the amount
of damages due and payable to the Appellant.
[38]
The uncontested evidence of the Appellant is that he and the First
Respondent are neighbors.
They have a very acrimonious relationship
because the Appellant had in the past reported the First Respondent
for illegal poultry
farming to the authorities. The First Respondent
is an ex-police officer and has previously laid false charges against
the Appellant
during 2012 – 2013.
[39]
In the light of the above facts, I am of the view that the First
Respondent abused his power
and connections as an ex-police officer
and laid false charges of contravention of a Protection Order and
Theft against the Appellant,
which eventually led to the arrest of
the Appellant.
The First Respondent was
present on the day when the Appellant was arrested. It is clear that
the arrest was accompanied by malice
and revenge. The First
Respondent had a vendetta against the Appellant.
The charges against the
Appellant were eventually withdrawn because of lack of prospects of
success in the prosecution.
[40]
Counsel for the Appellant referred us to an appropriate case of
Joseph Buti Mahlangu v Minister of Safety and Security &
Others
, case number 32531/2001
in North Gauteng High
Court, Pretoria, wherein the Court awarded an amount of R 120 000.00
as general damages for a claim for malicious
prosecution.
In that case the
Plaintiff spent only one day in the cells. The Court took into
consideration the fact that the arrest and prosecution
were
accompanied by malice and revenge as in the present case before us.
The amount of R 120
000.00 would equate to approximately R 370 000.00 in today’s
terms.
[41]
The Appellant in this case spent almost three full days in the cells,
under horrible conditions
as set out herein above. No amount of
compensation can undo the humiliation and human rights violation
suffered by the Appellant
when he had to be charged and prosecuted
for the false charges.
Appropriate
solatium
,
taking into consideration all of these factors is that the Appellant
should be awarded compensation in the amount of R 250 000.00.
Order
[42]
In the result the following order is made:
1.
The Appeal is upheld with costs.
2.
The order of the Court
a quo
in respect of paragraphs 2 and 6
thereof is set aside and substituted with the following:
2.1.
The Second Respondent is ordered to pay the sum of R 400 000.00 to
the Appellant, being general damages for
the unlawful arrest and
detention;
2.2.
The First Respondent is ordered to pay the sum of R 200 000.00 to the
Appellant, being general damages for
the malicious prosecution.
3.
Payment of interest at the prescribed rate from date of judgment in
the Court
a quo
(21 January 2021) until date of payment,
payable by the First and Second Respondent on the respective amounts
awarded.
4.
The First and Second Respondents are ordered to pay the cost of
action jointly and severally,
the one paying the other to be
absolved.
E M MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO DIVISION
I agree,
G C MULLER
JUDGE OF THE HIGH
COURT,
LIMPOPO DIVISION,
POLOKWANE
I agree,
T C LITHOLE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard on
: 12 August 2022
Judgment delivered
on : 16 August 2022
For the
Appellant
: Adv J
P Morton
Instructed
by
: Charl Naude Attorneys
For the
Respondents
: No Appearance
[1]
2011
(2) SACR 262
(GNP).
[2]
2009
(5) SA 85
(SCA) paragraph 26 at 93 D – E.
[3]
2006
(6) SA 320 (SCA).
[4]
2000
(4) SA 68
(WLD) at 86 D.
[5]
2015
(4) SA 433
(SCA) at paragraph 27.