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[2022] ZAECMHC 37
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Ngono v Minister of Safety & Security (1201/2016) [2022] ZAECMHC 37 (27 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION, MTHATHA]
[Not
Reportable]
CASE
NO: 1201/2016
Heard
on: 23/08/2022
Delivered
on: 27/09/2022
In
the matter between:
MBUYISELO
NGONO
Plaintiff
And
MINISTER
OF SAFETY & SECURITY
Defendant
JUDGMENT
NHLANGULELA
DJP
[1]
In this matter, the parties have agreed that the defendant is liable
to compensate
the plaintiff for arresting and detaining him
unlawfully between 04 June 2013 to 07 June 2013. There is a dispute
with regard to
the detention of the plaintiff between 07 June 2013 to
19 September 2013. For a just decision to be made, the parties
submitted
a statement of agreed material facts which is framed in the
following terms:
1.
The plaintiff was detained on 04 June 2013.
2.
He appeared in court in person on 07 June 2013, where the court
remanded for
his formal bail application, because it was opposed by
the State.
3.
The plaintiff appeared in court on 13 June 2013. The bail application
did not proceed.
The matter was remanded further for witness
statement and DNA test results.
4.
On 15 July 2013 he appeared in court again but the bail application
did not proceed.
He was detained further for further investigation
and DNA results.
5.
On 20 August 2013, the plaintiff appeared before the magistrate, and
he was ordered
to remain in detention for police investigations and
regional court date.
6.
On 19 September 2013, the plaintiff was caused to appear before the
district magistrate.
On this occasion it transpired that the blood
kit and DNA exhibits; with blood having been drawn from him on 18
September 2013.
On this day, the matter was struck off the roll at
the instance of the prosecution”.
7.
Therefore, the detention was for a period from 04 June 2013 to 19
September 2013.
[2]
On the one hand,
Mr
Mgxaji
, for the
plaintiff, advanced the following submissions:
(a)
The arrest and
detention of the plaintiff was unlawful;
(b)
For the detention of
the plaintiff from the day of arrest on 04 June 2013, until 19
September 2013, the defendant should be liable
to compensate the
plaintiff in damages amounting to at least R500 000,00.
[3]
On the other hand,
Mr Ndabeni
, for the defendant, submitted
that the payment of damages by the defendant should be limited to the
period starting on 04 June
2013 and ending on 07 June 2013 because
such detention was unlawful.
[4]
In other words, whereas
Mr Mgxaji
contends that the damages
should be assessed on the basis of unlawful arrest and detention for
105 days,
Mr Ndabeni
contends that the assessment should be
limited to 3 days.
[5]
The reason given for limiting the amount of damages to 3 days was
given by
Mr Ndabeni
as being that the prosecutor and / or
magistrate were responsible for the post remand detention from 07
June 2013 to 19 September
2013. In other words, the members of the
SAPS had nothing to do with the continued detention of the plaintiff
beyond the first
appearance of the plaintiff before the magistrate on
07 June 2013.
[6]
The facts admitted in this case, based on the agreed statement of
material facts demonstrate
that the plaintiff, aged 36, was arrested
by the members of the SAPS on a suspicion that he had raped a 63
years old woman in a
village situated in the district of Centane. The
detention that followed endured until 19 September 2013. The events
that occurred
between 04 June 2013 and 19 September 2013 were the
first appearance of the plaintiff before the magistrate on 07 June
2012 when
the hearing of bail application was postponed for not less
than five times by reason that the Investigating Office (I/O) wanted
more time to complete the investigation, which persisted without any
meaningful ending in sight. As long as the I/O expressed appetite
for
continued investigation coupled with the postponement of the bail
hearing, the remanding of the plaintiff in the police custody
persisted.
[7]
The record of proceedings before the magistrate, admitted by the
parties, reveal that
at not a single occasion of the court remands
were the prosecutor and the court the reason for continued detention
of the plaintiff.
The so-called police investigation would have
entailed a search for state witnesses to testify against the
plaintiff and the collection
of a DNA test results. It came as a
complete surprise to note from the court record that plaintiff’s
blood sample was extracted
from him only on 18 September 2013, just
one day before the day when the court ultimately decided to strike
the matter off the
roll on 19 September 2013.
[8]
The facts found proved are that the DNA results were never brought to
court, and written
police statements of witnesses were never
obtained. The inevitable conclusion to be drawn from these facts is
that the applications
for a remand made to the magistrate served
merely to keep the plaintiff in custody in violation of his
constitutionally protected
rights to human dignity and not to be
deprived of freedom arbitrarily as provided for in ss 10 and 12 of
the Constitution, 1996.
Both
the magistrate and the prosecutor were obviously misled by the I/O
into believing that necessary investigation was being pursued
by the
I/O.
[9]
I find that the submission advanced on behalf of the defendant that
the magistrate
and the prosecutor were responsible for the unlawful
detention of the plaintiff from 07 June 2013 to 19 September 2013 is
baseless.
Further support for this finding derives from the very fact
that the magistrate and the DPP were never joined in these
proceedings
to answer the call that they were responsible for keeping
the plaintiff in police custody for a continuous period of 102 days.
Therefore, the defendant bear sole responsibility for the arrest and
detention of the plaintiff for 105 days.
[10]
The findings that I have made in the preceding paragraph are
supported by the judicial statements
made in
De Klerk v Minister
of Police
2020 (1) SACR (CC) at paras 62 and 63. The statements
read as follows:
“
[62]
The
principles emerging from our jurisprudence can then be summarised as
follows. The deprivation of liberty, through arrest and
detention, is
per se prima facie unlawful. Every deprivation of liberty must not
only be effected in a procedurally fair manner
but must also be
substantively justified by acceptable reasons. Since
Zealand
,
a remand order by a magistrate does not necessarily render subsequent
detention lawful. What matters is whether, substantively,
there was
just cause for the later deprivation of liberty. In determining
whether the deprivation of liberty pursuant to a remand
order is
lawful, regard can be had to the manner in which the remand order was
made.
[63]
In cases like this, the liability of the police for detention
post-court appearance should be determined on an application
of the
principles of legal causation, having regard to the applicable tests
and policy considerations. This may include a consideration
of
whether the post-appearance detention was lawful. It is these
public-policy considerations that will serve as a measure of control
to ensure that liability is not extended too far.
The conduct of
the police after an unlawful arrest, especially if the police acted
unlawfully after the unlawful arrest of the plaintiff, is
to be
evaluated and considered in determining legal causation
. In
addition, every matter must be determined on its own facts —
there is no general rule that can be applied dogmatically
in order to
determine liability”. (The underlining is mine).
[11]
As already stated, on the facts of this case the I/O, not the
magistrate or prosecutor, caused
the unlawful detention of the
plaintiff from 04 June 2013 to 19 September 2013. And the conduct of
the I/O was the proximate cause
of the remands and detention that
followed.
[12]
Consequently, the defendant is fully liable for the delictual damage
that was caused to the plaintiff.
[13]
In this case the appropriate award of damages for unlawful arrest and
detention of the plaintiff
for 105 days falls on the issue of general
damages. The proper approach adopted by the courts in the assessment
of general damages
is discussed in the case of
Johanna Janse Van
Rensburg v The Minister of Safety And Security Of The Government Of
the Republic Of South Africa
; ECG Case No. 2344/09 dated 17 March
2011 at page 2, para. [2]:
“
The
damages suffered by the plaintiff are not easy to compute because
they are non-patrimonial in nature. I can do no better than
to quote
a passage from the case of the
Provincial
Commissioner, Eastern Cape and 2 Others v Cameron Geduld
Case
No. CA458/03 dated 27 November 2003 (ECD) (unreported) in which the
correct approach to the assessment of
quantum
in a case such as the present was set out. There Plasket J said the
following at para. [3]:
The correct approach to
the assessment of damages has been summarized by Erasmus J in a
recent judgment,
Ntshingana v Minister of Safety and Security and
Another
[ECD 14 October 2003 (Case No. 1639/01) unreported, para.
[28] as follows:
‘
The
satisfaction in damages to which plaintiff is entitled falls to be
considered on the basis of the extent of the violation of
his
personality (
corpus,
fama and dignitas).
As
no fixed or sliding scale exists for the computation of such damages,
the Court is required to make an estimate
ex
aequo et bono.
The
authors of
Visser
and Potgieter’s Law of Damages
2
nd
ed, 475 have extracted from our case law factors which can play a
role in the exercise:
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 (eg solitary confinement) of the deprivation
of liberty; the
status, standing, age and health of the plaintiff; the extent of the
publicity given to the deprivation of liberty;
the presence or
absence of an apology or satisfactory explanation of the events by
the defendants; awards in previous comparable
cases; the fact that in
addition to physical freedom, other personality interests such as
honour and good name have been infringed;
the high value of the right
to physical liberty; the effect of inflation; and the fact that the
action
injuriarum
also has a punitive function.’
Neethling’s
Law of Personality op cit, 130-1 adds the following factors:
‘
The
circumstances surrounding the deprivation of liberty; its duration;
and the presence or absence of an apology or satisfactory
explanation. Naturally, satisfaction is increased if additional
personality interests such as dignity and good name are involved.’”
[14]
According to the pleadings, the plaintiff seeks an award of general
damages in the sum of R600 000,00.
In argument, it was submitted
on behalf of the plaintiff that the unlawful conduct of the I/O
deprived the liberty of the plaintiff
in the ways that were
traumatic, degrading, discomforting and, as it were, it inflicted
psychological harm upon the plaintiff due
to being kept in an
unpleasant awaiting trial prison cell for 105 days. However, the
cases that the Court was referred to are not
very similar to the
present matter in that the range of detention periods under
consideration therein was limited to 3 days. Counsel
for the
defendant referred to the case of
MX v Minister of Police
(1329/2016) ZAECMHC, where a sum of R340 000,00 was awarded on
the basis of detention for approximately 3 days coupled with
ill
treatment during arrest visited upon the claimant. Both counsel
suggested an award of damages in the region of R450 000,00
to
R500 000,00, which suggestion I understood to be premised on the
appreciation that the plaintiff’s detention for
a period of 105
days was egregious, and the previously decided cases comparable to
the present matter on the facts are very few
and far in between. As
stated in
Minister of Safety and Security v Seymour
2006 (6)
SA 320
(SCA) at 325, the assessment of awards of general damages with
reference to awards made in previous cases is fraught with
difficulty.
The comparisons made between similar cases must be fair
rather than mechanistic –
De Jongh v Du Pisani
[2004] 2
All SA 565
(SCA)) at 682I. Nevertheless, in the exercise of its
judicial discretion this court must have regard to the peculiar facts
of the
case presented to it –
Road Accident Fund v Marunga
2003 (5) SA 164
(SCA) at 172. At the same time, the court should
give recognition to the plaintiff’s constitutional rights as
provided in
ss 10 and 12 of the Constitution, including the fact that
the standards of living are high. In the hope that the award of
damages
to be made will not over-compensate the plaintiff, I consider
a sum of R500 000,00 to be an appropriate amount of damages to
be paid by the defendant.
[15]
In the result the following order is made:
1.
The defendant is
held liable to compensate the plaintiff for wrongful arrest and
detention, including
contumelia
in the sum
of R500 000,00 (five hundred thousand rand).
2.
The defendant to
pay the costs of suit.
Z
M NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT,
MTHATHA
Attorney
for the plaintiff
: Mr
S. L. Mgxaji
:
c/o Mgxaji Attorneys
MTHATHA.
Attorney
for the defendant :
Mr M. Ndabeni
:
c/o M. Ndabeni Inc.
MTHATHA.