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2022
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[2022] ZAECMHC 2
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Mbabaza v Minister of Police (67/2020) [2022] ZAECMHC 2 (1 February 2022)
THE
HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION – MTHATHA)
CASE
NO. : 67/2020
Date
of hearing:
28 October 2021
Date
delivered : 1 February 2022
In
the matter between:
GOLDEN
MBABAZA
Plaintiff
And
MINISTER
OF
POLICE
Defendant
JUDGMENT
MAJIKI
J:
[1]
The plaintiff sued the defendant in his capacity as the person who is
vicariously liable for acts
and omissions committed by members of
South African Police Service (SAPS) in the course and within the
scope of their employment.
According to the plaintiff he was arrested
without a warrant of arrest and detained from 16 November 2018 to 19
November 2018,
Friday to Monday, He quantified his damages to the
amount of R900 000.00. The defendant filed a notice of intention
to defend
but failed to file a plea. The matter was before court as
undefended.
[2]
Shortly after the hearing of the matter the court file was mislaid.
The court’s gratitude
goes to the plaintiff’s attorneys
who, in the past week, kindly had it reconstructed. Only the
plaintiff testified in support
of his claim. The background facts are
that, on 14 November 2018 one Sibusiso allegedly attacked and locked
in the plaintiff’s
wife and daughter at the plaintiff’s
homestead. Sibusiso dragged his daughter saying he would rape and her
mother. When alerted
of the attack telephonically, the plaintiff went
home with a view to defend them. He knew that Sibusiso was armed. On
his arrival
he confronted Sibusiso about what he was doing. Sibusiso
did not respond. After firing a warning shot, he shot at him and
bruised
his arm.
[3]
The next day he was summoned by the police telephonically and was
advised to bring his firearm
on 16 November 2018. At 09h00 upon
presenting himself at the police station, he was arrested and his
firearm was confiscated. On
Monday he was caused to appear in court
and was remanded on bail of a sum of eight hundred rand (R800.00).
After three (3) court
attendances, his legal representative told him,
the matter would be withdrawn due to insufficient evidence.
[4]
He said he was detained in a filthy, lice-ridden small cell. They
were fourteen (14) inmates cramped
up, such that they had to fold
their legs throughout. He slept on the floor and was spared a light
blanket by a fellow inmate.
The toilet had no door, everyone had to
use it in full view of other cell mates.
[5]
He said he lost respect of his subjects as a sub-headman. Community
members in social gatherings
no longer stood up when he entered. He
even decided to stay away because there was resistance in affording
him his traditional
earned sitting place, that of being third from
the door. He was relieved of his slaughtering duties as a speer
carrier by the one
faction of his family. The ordeal left him hurt
and anxious. He has become forgetful.
[6]
It is common cause that arrest and detention is
prima facie
unlawful. The defendant bears the onus to justify its lawfulness. In
the circumstances of this case, the evidence of the plaintiff
was not
contested, the unlawful arrest was therefore proved. Judgment on
liability was entered in the plaintiff’s favour
for damages
that he may have proved.
[7]
The issue to be determined is the quantum of his damages.
[8]
The plaintiff was detained for three (3) days under disgusting
conditions. The arrest hurt him,
he lost respect of his subjects and
that of a faction of his relatives. Arrest and detention is viewed as
a serious violation of
a person’s right to freedom, entrenched
in section 12 of the Constitution of the Republic of South Africa,
1996.
Section 12(1) (a) provides:
‘
Everyone has the right to
freedom and security of a person, which includes the right not to be
deprived of freedom arbitrarily without
just cause’.
The
unjustified interference with that right has consequences of damages
which calls for compensation.
[9]
It is the duty of the court to determine the amount that should be
awarded to the plaintiff. In
Minister of Safety and Security v
Tyulu
2009 (5) SA85 (SCA) paragraph 26 the court held:
‘
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 so 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.’
[10]
In the determination of the quantum of damages herein the court must
exercise a broad discretion
in order to reach what can be viewed as
commensurate compensation. The plaintiff’s claim consisted of
various heads damages,
namely:
Emotional shock and
discomfort
R 100 000.00
Impairment of
dignity
R 200 000.00
Pain and
suffering
R 200 000.00
Unlawful
detention
R 200 000.00
Contumelia and invasion of
privacy
R 200 000.00
In
Rudolph and Others v Minister of Safety and Security and Others
2009 (2) SACR 271
(SCA) paragraph 26 the court stated:
‘
The ever-changing value of
money makes reference to previous decisions not altogether helpful.
As was stated in
Minister of Safety and Security v Seymour
2006 (6) SA320 (SCA) paragraph 17, in the assessment of general
damages the facts of the particular case must be looked at as a
whole
…’
[11]
In
Rudolph
supra
, in March 2009 the appellants were
awarded a total R150 000.00 for overall four (4) days arrest and
detention, of which in
the first three (3) nights the conditions of
their detention were more or less similar to those in the present
case. In
Minister of Police v Page
(CA 231/2019) [2021] ZAECG
22, delivered on 23 February 2021 the court of appeal reduced an
award of R60 000.00 for detention
of approximately one day to
R30 000.00. Nothing extra-ordinary was recorded about the
conditions of the appellant’s
detention.
[12]
In the present case, above the invasion of the plaintiff’s
privacy and violation of his
constitutional rights, he continues to
suffer humiliation and degradation in his family and community. The
background facts which
led to his arrest relate to circumstances
where, a father of girl children was responding to a call for his
wife and daughter’s
protection, who were being attacked in the
comfort of their home. He had reported at the police station on his
own. In the proper
exercise of their discretion whether to have the
plaintiff arrested, the police ought to have considered those
circumstances as
militating against the plaintiff’s arrest and
detention.
In
the circumstances the following order is made:
1.
The defendant is hereby ordered to pay the plaintiff a sum of
R110 000.00 as and for
damages for his arrest and detention.
2.
Payment of interest on the said amount at the prescribed rate from
thirty (30) days from
the date of service of the order to the date of
payment.
3.
Costs of suit.
B
MAJIKI
JUDGE
OF THE HIGH COURT
Counsel
for the Plaintiff
:
Mr Mapoma
Instructed
by
: Messrs
Lutango Sigcau Attorneys
First Floor, Ludidi Building
121
Richardson Road
DUTYWA
c/o
M Sigcau Attorneys Inc.
Office
No. 5, Block 3
66
Stanford Terrace
MTHATHA