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[2021] ZAGPPHC 79
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Mathe v Minister of Police (22341/2017) [2021] ZAGPPHC 79 (15 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
15/02/2021
CASE
NO.: 22341/2017
In
the matter between:
LERATO
PRECIOUS MATHE
Plaintiff
and
THE
MINISTER OF POLICE
Defendant
JUDGMENT
VAN
DER WESTHUIZEN, J
[1]
The plaintiff, a 29 years-old female, claims damages against the
defendant arising
from the unlawful arrest and detention of the
plaintiff during November 2016. At the time she was a bank clerk in
the employ of
Capitec Bank. At the relevant time of the arrest, she
was 24/25 years old.
[2]
The aforesaid arrest of the plaintiff was executed without a warrant
for arrest and
as such it was deemed to be unlawful until the
defendant could justify the arrest and subsequent detention. It is
trite that once
the arrest is proven to be unlawful, the subsequent
detention is unlawful. This is common cause between the parties.
[3]
When the trial was set down before me, the issues of unlawful arrest
and detention
and that of the quantum of damages were in dispute. On
the eve of the commencement of the trial, the defendant conceded that
the
arrest was unlawful and the only issue that was to be determined,
was that of the quantum of damages to be awarded. Despite having
received instructions from the defendant during September 2020 to
concede the issue of unlawful arrest, the defendant’s legal
representatives did not convey those instructions to the plaintiff’s
attorney sooner than on the eve of the trial.
[4]
It is gleaned from the evidence given by the plaintiff, that the
concession in respect
of arrest being unlawful was well made. In this
regard, the plaintiff testified that she had left her branch where
she was employed
earlier in the day as she was to meet her friends in
Sunnyside. She was employed as a bank clerk at the Mamelodi branch of
Capitec
Bank.
[5]
At about 17:00 on 24 November 2016, she was standing on Kotze Street,
Sunnyside, Pretoria
when a motor vehicle pulled up alongside her. The
three occupants of the vehicle identified themselves as police
officers. They
were not in uniform. It was not clear whether the
vehicle had any markings indicating it being a police vehicle, on the
probabilities
not so identifiable. She did not know any of them and
they did not provide their names or their ranks. They accused her of
selling
drugs on behalf of Nigerians. She denied the allegation. They
then invited her into the car as they indicated that she should
accompany
them to the Sunnyside Police Station for questioning.
Inside the vehicle, the police officer who sat beside her at the
back, asked
her whether he could search her bag. He found a number of
bank cards, 24 in total, of which 21 were debit cards and 3 were
credit
cards. She was then accused of being in possession of stolen
property and thus providing means of money laundering to the
Nigerians.
The plaintiff denied the allegations and informed the
police that the cards were issued to her by her branch of Capitec
Bank for
use when consulting with clients. The police then took the
plaintiff straight to the Sunnyside branch of Capitec Branch to
verify
her version. She remained in the vehicle whilst one of the
police officers entered the bank. It was then confirmed that the
cards
in question were not stolen. The police took the plaintiff to
the Sunnyside Police Station. One of the police officers went to the
plaintiff’s branch to speak to the branch manager. He was duly
informed by the branch manager that the cards were in fact
issued to
the plaintiff and not stolen, but that she was not supposed to have
them with her when she left the branch. Despite being
so informed,
the police officers nevertheless arrested the plaintiff on the charge
of suspicion of being in possession of presumed
stolen property and
detained the plaintiff in a cell. The plaintiff was only released the
next day at approximately 14:00 –
14:30. It is common cause
that no criminal proceedings were instituted against the plaintiff, a
nolle prosequi
was issued.
[6]
From the foregoing, it is clear that the arrest was technically
unlawful. Any initial
suspicion of being in possession of presumed
stolen property was clearly dispelled when it was corroborated by the
branch manager
of the plaintiff that she was in lawful possession of
the bank cards in question. The only transgression being that the
plaintiff
was in terms of bank policy not supposed to take the bank
cards with her when she left the branch. The plaintiff’s
explanation
of her having the said bank cards in her bag was that she
had forgotten to take them out when she left to meet her friends.
That
transgression is an internal bank issue and does not constitute
a criminal offence, certainly not that which she was accused of.
There was no reason for the arrest and subsequent detention of the
plaintiff. Her arrest and detention occurred after the verification
that the said cards were in the plaintiff’s lawful possession.
The concession in respect of liability was thus correctly
made.
[7]
It is trite that the unlawful deprivation of the liberty of a person
is remedied by
an award of damages.
[1]
The only issue to be determined is that of the quantum of damages to
be awarded. In this regard, a number of factors are to be
considered
in determining the amount to be awarded.
[2]
[8]
When determining the quantum of damages suffered, the correct
approach is to consider
all the facts of that particular case. The
determination is not done on a broad approach, irrespective of the
particular facts,
and the evidence proved in that regard.
[3]
[9]
The plaintiff testified that when she was initially approached by the
police officers
in Sunnyside, it was in the presence of members of
the public who were walking past and a man who had a stall nearby.
She was further
insulted by the police officers at the Police Station
in the presence of members of the public who were waiting in the area
where
the public are received by the officials when they have
inquiries or wish to lay charges or report incidents. At the time,
there
were about four members of the public present, as well as a
lady who worked in the charge office. She was then detained in a cell
approximately 6 x 10 metres, if not somewhat larger. A mattress and a
blanket were available and the cell had a toilet. The plaintiff
was
offered bread and butter and tea for the evening. The next day she
was apparently offered a meal consisting of tinned fish
and rice.
Initially the plaintiff was alone in the cell until about 2:00 when
she was joined by a second female person who was
arrested for drunken
driving.
[10]
No evidence was produced to indicate whether the public, who were in
the vicinity when the plaintiff
was initially approached by the
police officers, could hear the conversation and/or knew the
plaintiff, or were aware of the fact
that they were police officers.
Nor was any evidence led to indicate that the public present in the
charge office could hear the
alleged insults, or had known the
plaintiff, or that they had followed the conversation between the
police officers and the plaintiff.
In respect of the alleged insults,
which the plaintiff offered as insults, amounted to no more than
advice that she should stay
clear of people who were notorious for
drug peddling. She was further vague in respect of some of the other
alleged insults.
[11]
In respect of her evidence relating to her detainment in the cell,
the plaintiff was not convincing.
On her own evidence, the cell was
in no worse condition than could be expected of a place of
incarceration of detainees on an ongoing
basis. Of her own accord she
was unwilling to use the toilet facilities although it appeared to be
acceptable. Her own personal
dislike to use the toilet facilities
does not render the use thereof impossible or unacceptable. It
remains facilities for public
use and not private use. No evidence
was proffered that the situation and circumstances were such that it
rendered the cell unfit
for occupation, even in the normal course of
events. She declined the meals offered. The plaintiff offered no
reason for declining
the meals. It was her own choice. The
plaintiff’s refusal to use the available bedding was due to her
own fastidiousness,
and not because the condition thereof rendered it
non-usable under any circumstances. She merely testified that it
smelled of dust.
For the greater part of her detention, the plaintiff
was alone in the cell and was later joined by another female who was
apparently
intoxicated. The plaintiff did not testify that she had
felt threatened in any way by the presence of the other occupant.
[12]
Being arrested and detained is of nature a humiliating experience.
Non constat
that in the eyes of the public you are humiliated
in the absence of any further particulars in that regard. No evidence
was tendered
to indicate that as a result of the unlawful arrest and
detention, the plaintiff has suffered any lasting self-degradation or
psychological
damage. One is expected to endure the daily
hustle-and-bustle that life bestows upon one. Not all of those call
for any compensation
being offered. In view of the foregoing, it
cannot be said that the plaintiff’s experience was harrowing.
[13]
In the absence of evidence that in the eyes of the possible
observers, the plaintiff suffered
humiliation, or that less was
thought of her by them and where the strangers in all probability
would never see or meet her ever
again, any perceived humiliation on
that score does not in itself warrant any substantial compensation
being awarded. The personal
experience of humiliation, in particular
where the arrest and detention were unnecessary in the particular
circumstances, does
not call for a large amount of damages to be
awarded.
[14]
In respect of the issue of quantum, the parties are in disagreement.
Initially the plaintiff
claimed, in her amended particulars of claim,
an amount of R200 000.00. The plaintiff persisted with such
amount in the practice
note filed on her behalf. However, at the
trial her counsel submitted that an amount of R100 000.00 should
be awarded and
in that regard, reliance was placed on a number of
authorities. On behalf of the defendant it was submitted that an
amount of between
R35 000.00 and R40 000.00 would probably
be an adequate amount. Although counsel for the defendant further
submitted
that an amount of R10 000.00 was recently awarded on
similar facts in this Division, no authority for that proposition was
submitted.
[15]
It is trite that amounts awarded in other matters may be of some
guidance, it is also trite that
each case is to be considered on its
own peculiar facts.
[4]
In the present matter, and having due regard to the particular facts
of this matter, an award of a large amount of compensation
is not
called for, nor warranted. The plaintiff suffered unwarranted
inconvenience, injury to her feelings and personal humiliation
with
no future consequence. To an extent her unfortunate situation was of
her own doing, her non-compliance with bank policy. That
in itself
does not warrant her unfortunate experience. A
via
media
is to be found.
[16]
In my opinion, an adequate award, bearing in mind the facts as
recorded above, would be an amount
of R25 000.00.
[17]
There remains the issue of interest payable on any amount awarded
with specific reference to
the date from which such interest should
run. It is submitted on behalf of the plaintiff that the appropriate
date is the date
of demand. In the amended particulars of claim the
relevant date for interest to run on the amount to be awarded is pled
to be
that of the date of the summons. However, the correct date
where no demand is made would at best be the date of service of the
summons. It is to be noted that the true purpose of the so-called
letter of demand in proceedings such as these, is to notify the
defendant of the incident and to enable it to investigate the matter.
That is the clear purpose of the required notice in terms
of the
provisions of section 3 of Act 40 of 2002. Where damages are
claimed in circumstances as the present, the quantum
is only
determined by the court after consideration of all the facts. Until
the determination is arrived at, the amount is unliquidated.
It is
trite that in terms of the common law, interest is not payable on
unliquidated damages.
[5]
The court makes a determination of the damages
ex
aequo et bono
.
[6]
Only then the amount is determined. Thus interest on the amount
awarded could only then follow.
[7]
It would be equitable in such circumstances to determine a period for
payment of the award made, failing which,
mora
interest should then follow until date of payment.
[8]
[18]
There is a further issue to be considered, namely that of costs and
in particular that of the
scale upon which the costs are to be
determined. There is no reason why the normal principle of costs
following the event should
apply. The award of costs and the scale
upon which the costs are to be determined fall within the discretion
of the court. The
court has an unfettered discretion in that regard.
The present matter is not of a complexity that it warranted the
attention of
the High Court. The amount claimed, and to be awarded,
fall within the jurisdiction of the Magistrates’ Court. No
special
circumstances were advanced to warrant the institution of
these proceedings in the High Court.
I grant the following order:
1.
The defendant is to pay the plaintiff an
amount of R25 000.00;
2.
The defendant is to pay interest of 7%
a
tempore morae
on the amount of
R25 000.00 from 10 days of the date of the grant of this order
until date of payment;
3.
The defendant is ordered to pay the costs
of suit on the appropriate magistrate’s scale.
C
J VAN DER WESTHUIZEN
JUDGE
OF THE HIGH COURT
Judgment
Reserved:
20 January 2021
On
behalf of Applicant: A C Gobetz
Instructed
by:
Loubser van der Walt Attorneys
On
behalf of Respondent: M H Mpahlele
Instructed
by:
State Attorney, Pretoria
Judgment
Delivered: 15
February 2021
[1]
See in
general Neethling J
et
al,
Law
of Personality,
(2005), 121-122, par 2.4
[2]
Ibid
[3]
Minister
of Safety and Security v Tyulu
2009(5) SA 85 (SCA) at [26]
[4]
Minister
of Safety and Security, supra,
at [26]
[5]
Victoria
Falls & Transvaal Power Co. Ltd v Consolidated Langlaagte Mines
Ltd
1915 AD 1
at 31-33;
Standard
Chartered Bank of Canada v Nedperm Bank Ltd
1994(4) SA 747 (AD) at 779A-E
[6]
Visser
JP and Potgieter JM,
Law
of Damages,
(2003), 472-474, par 15.3.9
[7]
Section
2
of the
Prescribed Rate of Interest, Act No. 55 of 1975
[8]
Section
2A(5) of the Prescribed Rate of Interest Act,
supra