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[2022] ZAECMKHC 11
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Shode v Minister of Police (CA17/2021) [2022] ZAECMKHC 11 (3 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION, MAKHANDA]
CASE
NO:
CA 17/2021
Heard
on: 18/02/2022
Delivered
on: 03/05/2022
In
the matter between:
MBUYISELO SHODE
Appellant
(Respondent in the
cross-appeal)
and
MINISTER
OF POLICE
Respondent
(Appellant
in the cross-appeal)
JUDGMENT
NHLANGULELA
DJP
[1]
On 05 March 2021 the magistrate of Grahamstown (now Makhanda) made
the following order:
(a)
Payment of the amount of R10 000,00 (TEN THOUSAND RAND), to be paid
within 30 (thirty) days
of payment;
(b)
Interest on the judgment amount from date of service of summons at
the rate of 7.25% per
annum;
(c)
Costs of the action on party and party scale.
[2]
Aggrieved by that order, the appellant (the plaintiff in the
Magistrates’ Court)
noted an appeal on the grounds that the
award in the sum of R10 000,00 is inadequate; and that the
interest was fixed at 7.25%,
instead of 10%. In a nutshell the
appellant seeks an increased financial award.
[3]
On the other hand, the respondent on appeal (the defendant in the
Magistrates’
Court) noted a cross-appeal on the issue of
liability on the ground that the magistrate misdirected himself in
the manner in which
he evaluated the evidence which, had he evaluated
it properly, he would have found that the appellant failed to
discharge the
onus
of proof that he was entitled to the
payment of R10 000,00 or at all. In so far as the cross-appeal
is directed to the issue
of the merits of the appellant’s claim
against the respondent, it will be proper to deal with the
cross-appeal first; the
issue for determination being whether the
evaluation of the evidence on which payment of damages was ordered is
correct. To that
end, it bears mentioning at this early stage that
the proper approach on appeal based on facts was stated long ago to
be that the
factual findings made by the trial court are presumed to
be correct. In this regard, Pickering J in
Sizani v S,
Case
No: CA 272/2009 dated 02 November 2011 (unreported) at page 8 states
that:
“
The learned trial
Judge’s findings as to credibility and demeanour were assailed
on appeal. It is trite that a Court of appeal
is not at liberty to
depart from the trial Court’s findings of fact and credibility
unless they are vitiated by irregularity
or unless examination of the
evidence reveals that those findings are patently wrong. Those
findings are presumed to be correct
because the trial court has had
the advantage of seeing and hearing the witnesses and is in the best
position to determine where
the truth lies. See for instance
Rex
v Dhlumayo
1948 (2) SA 677
(A) at 705;
S
v Hadebe
1997 (2) SACR 641
(SCA) at 645;
S
v Francis
1991 (1) SACR 198
(A) at 204C – F;
S
v Skoti
unreported Eastern Cape High Court, Grahamstown, Full Bench Appeal
case no CA77/09 and S v Leve
2011 (1) SACR 87(E)
at para 8.”
[4]
Two oral witnesses testified before the magistrate. Those were the
appellant and Ms
Ntomboxolo Ndzima, the Constable in the SAPS.
[5]
The appellant’s version is that on 10 May 2018 he and one Ms
Siphokazi Kom,
his girl-friend at the time, appeared before the
Domestic Violence Court (the DVC) pursuant to a complaint made by Ms
Kom that
he had committed acts of violence against her. At the end of
those proceedings a protection order was issued by the magistrate
that he must desist from assaulting, swearing at, threatening or
communicating with Ms Kom. According to the appellant he complied
with the protection order without fail. However, on 12 June 2018 he
was arrested by Ms Ndzima. Pursuant thereto, he was detained
in a
police cell and taken to the Magistrates’s Court on the
following day to face a criminal charge of breaching the protection
order. During that appearance in court he was merely remanded to
appear in court again on a date when the criminal proceedings
were
terminated. Thereafter, he instituted civil proceedings against the
respondent claiming payment of R200 000,00 for unlawful
arrest and
detention, including insult (
contumelia
).
[6]
The appellant testified that during his arrest on 12 June 2018 he was
informed only
at the time of detention into Joza Police Station cells
that the reasons for arrest was that he had breached the protection
order.
But when that happened he was not asked to make a statement
denying the new complaint that Ms Kom had made against him. Instead,
the appellant was told that he would make his statement at court
during trial. But at court the opportunity to refute the complaint
of
Ms Kom was never presented to him. It is the present civil trial that
gave him the opportunity to narrate his version.
[7]
The appellant told the court below that on 09 June 2018, the day on
which he allegedly
breached the protection order, he left his
parental home (No. [....] “P”, Street), Tantyi Location,
Grahamstown, to
pass “O” and “N” Streets
until he reaches his destination at Aiken Street which is situated at
the same
Location. When he got to “N” Street he saw Ms
Kom with his new boy-friend. He nevertheless continued on his journey
without uttering a word to Ms Kom until he reached Aiken Street,
where he spent approximately three hours. On his return home he
met
Ms Kom’s mother standing next to the gate of her house at “O”
Street who hurled insults at him without any
provocation. The insults
entailed a concern, orally expressed, that since Ms Kom had a new
boy-friend the appellant must not interfere
with her for fear that
his violent acts that had led to the protection order being made in
May 2018 might be repeated. The appellant
told the court that the
insults of Ms Kom’s mother included an assertion that
appellant’s mother was a witch. Nonetheless,
the appellant kept
his composure. The appellant reported the incident to his mother when
he finally got home. The appellant denied
the allegation of Ms Kom
put to him under cross examination that he had committed further
violent acts on 09 June 2018 in breach
of the protection order.
[8]
Ms Ndzima testified that on 09 June 2018, and at about 19h00, she
received a docket
that contained a sworn statement of Ms Kom which
was to the effect that on 09 June 2018 whilst she was with her
boy-friend at No.
36 “N” Street the appellant arrived and
shouted at her saying that he was going to beat her up. In
response,
the owner of the house ordered Ms Kom to leave his house,
with the result that the appellant got an opportunity to yet again
issue
threats that: “I am going to beat you now. You can lay a
complaint or [cause me to be arrested] because I know [that] you
do
have a protection order against me.” Further, the appellant
grabbed her, but she succeeded to free herself from that restriction
and run away back home. Based on the sworn statement of Ms Kom and
the protection order that were contained in the docket, during
the
night of 09 June 2018 and on 10 and 11 June 2018 Ms Ndzima proceeded
to the house of the appellant to arrest him, but she did
not find the
appellant there. It would appear that Ms Ndzima’s attempts to
arrest the appellant on 09, 10 and 11 June 2018
were thwarted by
absences of the appellant from home.
[9]
When Ms Ndzima was subjected to cross examination it appeared that
she was happy to
effect arrest without a warrant authorizing her to
do so; and she was happy to effect arrest because Ms Kom had opened a
case against
the appellant. In addition, at the time of arrest Ms Kom
had expressed fear to remain in the company of the appellant.
[10]
In paragraph 15 of his judgment the magistrate stated the legal
position correctly when he said:
“
The governing
sections of the Act which are pertinent to a decision on whether the
arrest may have been unlawful is found at s 8
(4)
(b)
read with s 8 (5) of the [Domestic Violence Act 116 of 1998 aa] Act,
which read:
8.
Warrant of Arrest upon issuing of a protection order
(4) (a) A complainant
may hand a warrant of arrest together with an affidavit in the
prescribed form, wherein it is stated that
the respondent has
contravened any prohibition, condition, obligation or order contained
in a protection order, to any member of
the South African Police
Service.
(b) If it appears
to the member concerned that, subject to sub-section (5), there are
reasonable grounds to suspect that the complainant
may suffer
imminent harm as a result of the alleged breach of the protection
order by the respondent, the member must forthwith
arrest the
respondent for allegedly committing the offence referred to in
section 17(a).
(c) If the member
concerned is of the opinion that there are insufficient grounds for
arresting the respondent in terms of paragraph
(b), he or she must
forthwith hand a written notice to the respondent which-
…
(5)
In considering whether or not the complainant may suffer imminent
harm, as contemplated
in subsection (4((b), the member of the South
African Police Service must take into account –
(a)
the risk to the safety, health or wellbeing of the complainant;
(b)
the seriousness of the conduct comprising an alleged breach of
the protection order; and
(c)
the length of time since the alleged breach occurred.”
[11]
In evaluating the conflicting versions of the two witnesses who
testified the magistrate applied
the tools that are provided in the
case of
Stellenbosch Farmers’ Winery Group Ltd and Another v
Martell Et Cie and Others
2003 (1) SA 11
SCA at para 5. He was
correct in making factual findings on the credibility of the
witnesses, their reliability and in assessing
the probabilities of
the conflicting versions adduced by the two witnesses.
[12]
The finding that Ms Ndzima effected the arrest and detention without
a warrant is correct. That
finding paved the way for the
determination of the case on the fulfilment or otherwise of the
jurisdictional factors that emerge
from the provisions of s 8 (4)
(b)
and s 8 (5) of the DVA.
[13]
On the facts the magistrate made further critical findings of which I
list hereinunder for the
purposes of convenience:
(1)
Ms Ndzima acted on the contents of unverified sworn statement of Ms
Kom
that the appellant had violated the protection order.
(2)
Ms Ndzima was on board using a private vehicle, not a police van,
when
she arrested the appellant near Matebese shop.
(3)
Ms Ndzima did not inform the appellant about the charge that was laid
against him.
(4)
The appellant was not given an opportunity to submit a police
statement.
(5)
The reason for the arrest and detention of the appellant was simply
that
Ms Kom had laid a complaint, as well as that Ms Kom appeared to
Ms Ndzima at the time of arrest to be fearful that the appellant
would assault Ms Kom.
(6)
The arrest of the appellant took place after three days from the date
on which the complaint was laid.
(7)
Although the appellant was the first to testify and denied
categorically
that he spoke to Ms Kom and threatened to commit
violence on her person on 09 June 2018, it was not put to him under
cross-examination
that:
(i)
Ms Kom had exhibited fear that the appellant
was about to assault
her.
(ii)
The appellant was facing a criminal charge for
contravening the
protection order.
(iii)
The appellant was not subjected to unpalatable conditions
of the
prison cell in which he had been detained.
(iv)
Ms Ndzima explained the constitutional rights of the
appellant at the
time of arrest.
[14]
On the basis of the findings as aforementioned, the magistrate
accepted the version of the appellant;
and in express language
rejected the version of Ms Ndzima.
[15]
Further, on the accepted version of the facts as stated by the
appellant when he testified, the
magistrate concluded that Ms Ndzima
did not have reasonable grounds to suspect that Ms Kom suffered or
would at any future time
suffer imminent harm within the meaning of
the provisions of s 8 (4)
(b)
read with s 8 (5) of the DVA,
which are interpreted in
Barnard v Minister of Police and Another
(CA286/18) [2019] ZAECGHC 58;
[2019] 3 All SA 481
(ECG);
2019 (2)
SACR 362
(ECG) (31 May 2019); and in
Khanyile v Minister of Safety
and Security and Another
(7079/08) [2012] ZAKSDHC 12;
2012 (2)
SACR 238
(KZD) (27 January 2012) at para 28 to mean that the arrestor
ought to consider,
inter alia,
the long duration of time since
the alleged breach and make investigation on the necessity of the
arrest by interviewing all the
witnesses including the suspect.
[16]
In this case the magistrate found, correctly so, that Ms Ndzima
failed to exercise discretion
whether, or not, to arrest the
appellant, as she had not investigated the matter as necessitated by
the fact that the arrest was
effected on a date following three days
since the alleged act of violence was committed. He found that Ms
Ndzima based her decision
to effect the arrest almost exclusively on
the unverified statement, emotional state of Ms Kom and on the mere
say so that: “I
went there to arrest, because if a case has
been opened against you I will arrest you.” It was held by the
magistrate that
Ms Ndzima could have at the very least, issued
summons for the appellant to appear in court rather than arrest him
on the basis
that Ms Kom was scarred by the appellant upon meeting
him at the time of arrest on the road near Matebese shop.
[17]
This court cannot fault the findings of law and fact that were made
by the magistrate. The magistrate
was alive to the fact that the
facts of this case did not satisfy the definition of the term:
“imminent harm” as adumbrated
in the case of
Seria v
Minister of Safety and Security and Others
2005 (5) SA 130
(C) at
146B in the following terms:
“
The phrase
‘imminent harm’ finds expression in the Canadian Criminal
Code. The Ontario Court of Appeal in
R
v Adams
described the concept as follows:
‘
(I)t is the danger
of harm of a certain degree of immediacy that activates the
protection… that is to harm which is impending,
threateningly
ready to overtake or coming on shortly.’
It is safe to say
therefore that ‘imminent harm’ is harm which is about to
happen, if not certain to happen.”
[18]
The submission made by
Mr Ntlokwana
, counsel for the
appellant, was that the evidence in this case shows that Ms Kom’s
allegations in her sworn statement are
not truthful. In so far as
this court accepts that the rejection of Ms Ndzima’s version by
the magistrate was proper, the
sworn statement cannot be true.
[19]
On the aforegoing, the cross-appeal falls to be dismissed.
[20]
I now turn to the appeal on
quantum
. Both parties agreed that
interest at the rate of 10% was applicable at the time when the
magistrate delivered the judgment on
05 March 2021. I agree. To that
extent, the magistrate
erred
in fixing the rate if interest at
7,25% per annum. However, the question whether the award of general
damages in the sum of R10
000,00 is appropriate calls for a closer
assessment in this appeal. The grounds of appeal against the
quantum
is that the magistrate would have awarded damages in a sum of money
that is more than R10 000,00 had he taken into account that
the
appellant endured hardship in the prison cell due to smelly blankets
and sponge mattress provided to him; appellant was deprived
of
delivering bricks at his workplace due to arrest and detention on 13
June 2018; and that the high esteem that he enjoyed from
the members
of his church was lowered.
[21]
It was submitted on behalf of the respondent that the award is
reasonable. The case of
Rahim and Others v Minister of Home
Affairs
[2015] 3 All SA 425
(SCA) at para 27 was referred to the
court. The passage referred to reads as follows:
“
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
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 liberty
the amount of satisfaction is calculated by
the court
ex
aequo et bono
.
Inter
alia
the following factors are relevant:
(a)
circumstances under which the deprivation of liberty took place;
(b)
the conduct of the defendants; and
(c)
the nature and duration of the deprivation.”
[22]
The pleaded case of the appellant on the issue of
quantum
is a
starting point. The appellant’s cause of action is unlawful
arrest and detention, including
contumelia
associated
therewith. The appellant was arrested on 12 June 2018 at about 15h00
and kept into police custody until 13 June 2018
at about 13h00 when
the magistrate released him on warning. So, the arrest and detention
in the hands of the police endured for
approximately 22 hours. But
the magistrate calculated damages on 17 hours. This is an error. The
smelly blankets and sponge mattress
coupled with sub-standard hygiene
suffered by the appellant was not taken into account by the
magistrate. In my opinion, he misconstrued
the judgment of
Mofokeng,
supra,
which he used when assessing damage. However, the
magistrate was not obliged to take into account the loss suffered due
to a job
that the plaintiff would not do on 12 June 2018 and
defamation that he allegedly suffered in the eyes of members of his
church.
The reason is that the appellant’s claim is for
non-patrimonial loss, a type of damage that was pleaded by the
appellant.
A claim founded on defamation was also not pleaded.
Neither was evidence led that the appellant was a church-goer. The
finding
of the magistrate that the appellant did not suffer any ill
effects from his arrest is not grounded on the principles that are
stated in the case of
Mofokeng v Minister of Police;
C/N:
2014/A3084 (GJ) dated 17 February 2015 at para 13, which read:
“
It would therefore
be incorrect to conclude that a party will only be entitled to a
nominal award if he or she does not eloquently
and vividly describe
the effects of the arrest and detention. Moreover, the court is
entitled to assume that, barring any evidence
to the contrary, a
Plaintiff will suffer a loss of self-worth, will perceive that others
have a lower estimation of him, that he
will suffer embarrassment, is
likely to lose a degree of self-confidence and will experience
vulnerability, humiliation and a feeling
of being impotent as a
consequence of a wrongful arrest and detention.”
[23]
In any event, it does appear in the judgment of the magistrate that
the unpleaded damages based
on patrimonial loss and defamation were
rejected. The magistrate was correct in doing so. In all, the grounds
for interference
on appeal have been established as the magistrate
did commit misdirection in the manner in which he fixed the
quantum
in respect of the duration of time that the appellant spent in the
custody of the police and the application of the incorrect interest
rate of 7.25%.
[24]
I have observed that the magistrate misconstrued the meaning of the
judgments in the cases that
he relied upon in considering the amount
of damages for wrongful arrest and detention, and
contumelia.
Those cases are:
Goliath v Minister of Police
[2017] ZAECGHC
119 (14 November 2017) and
Barnard v Minister of Police and
Another
2019 (2) SACR 362
(ECG). In those cases, the courts
awarded an amount which is far more than R10 000,00 for a period of
22 hours spent in police
custody; the invasion of constitutional
rights not to be arrested and detained unreasonably; and the
embarrassment caused by the
inhuman manner in which the appellant was
treated at the time of arrest whilst he was detained in a filthy
police cell and during
his first appearance in court. Consequently, I
am in agreement with the submissions advanced on behalf of the
appellant that the
appeal on
quantum
should succeed to the
extent that an appropriate amount of damages may be fixed by this
Court.
[25]
In my opinion, a sum of R40 000,00 is an appropriate amount of
damages to be awarded in favour
of the appellant. That amount of
damages does accord with the principle that was established in the
case of
Rahim and Others v Minister of Home Affairs, supra;
it
is fair and reasonable; it is not over-compensation; and it accords
with the established bench marks of comparable awards made
in
previously decided cases.
[26]
The appellant has achieved success for which the costs must be
awarded in his favour.
[27]
In the result, the following order shall issue:
1.
The appeal succeeds.
2.
The judgment of the magistrate is set aside, and is substituted
with the following new order:
2.1
The respondent to pay R40 000,00 as and for damages in
respect of wrongful arrest and detention; including
contumelia
.
3.
The respondent to pay the costs incurred both in the Magistrates’
Court and in this Court.
Z.
M. NHLANGULELA
DEPTY
JUDGE PRESIDENT OF THE HIGH COURT,
MTHATHA
I
agree:
N.M.
MVUMBI
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the appellant
:
Adv. L.D. Ntlokwana
Instructed
by
: Akhona
George and Associates
MAKHANDA.
Counsel
for the respondent:
Adv. L. Hesselman
Instructed
by
: Zilwa
Attorneys
MAKHANDA.