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[2021] ZAGPPHC 428
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Minister of Justice and Constitutional Development and Another v Masia (A13/2019) [2021] ZAGPPHC 428; 2021 (2) SACR 425 (GP) (28 June 2021)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
APPEAL
CASE NO: A13/2019
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
THE
MINISTER OF JUSTICE AND FIRST
APPELLANT
CONSTITUTIONAL
DEVELOPMENT
THE
MINISTER
OF
POLICE
SECOND
APPELLANT
And
THABO
TOKA
MACK
MASIA
RESPONDENT
JUDGEMENT
INTRODUCTION
[1]
This case is about the flagrant
disregard of the fundamental rights of the Respondent, in particular,
the right to freedom and security of a person entrenched in Section
12 of the Constitution of South Africa.
[2]
The matter before us is an appeal against the judgment handed down on
16 March 2018 of the
Civil Magistrate Court of Tshwane in Pretoria
and the reasons for that judgment dated 14 November 2018 . In the
reasons, the judgment
was not amended but only the order by
clarifying against which defendants the order was granted.
[3]
The relevant facts in this matter are not in dispute, but the
findings of the court a
quo
are in contention .
FACTUAL
BACKGROU
ND
[4]
On the 5th of August 2013 , the Respondent presented himself, by
appointment,
at the Atteridgeville magistrates court
before a maintenance officer for an enquiry in terms of the
Maintenance Act 99 of 1998
pertaining to the maintenance of the minor
child of the Respondent. When the matter could not be resolved, the
maintenance officer
referred the matter to the maintenance court
magistrate for adjudication. The Respondent adduced evidence
regarding his income
and expenditure to enable the court to make an
order regarding the maintenance payable in respect of the maintenance
of his minor
child. Subsequent to adducing evidence, the Respondent
offered to pay maintenance in the amount of R300.00 (three hundred
rand)
per month
[5]
The presiding magistrate in the maintenance court rejected the
Respondent's
offer and then ordered the arrest and detention of the
Respondent in the Atteridgeville police station cells for one night.
The
Respondent was arrested by warrant officer Letlape
and detained to go and think clearly and thoroughly and to come up
with a better offer. Respondent was arrested without a warrant , he
was not charged with any offences, nor was he found guilty
of any
offence. The arrest took place in full view of his colleagues.
Respondent was detained for 1 (one) day from 6 August 2013
at about
13h35 and was released on 7 August 2013 at about 10h00, after he made
an offer to pay maintenance of R700.00 (seven hundred
rand) per
month. The Respondent was detained along with other detainees. He
described the cell conditions as dirty. He slept on
the floor on a
mat and was given a smelly blanket. He was almost robbed by other
cell mates but managed to ward off the robbery.
He was hurt and
humiliated by the arrest and due to the fact that his colleagues
witnessed it.
[6]
Warrant officer Letlape testified that he effected the arrest on the
instruction of the
magistrate and not on a reasonable suspicion. He
testified that he did not know the events leading to the instruction
given by
the magistrate. Therefore, he could not have entertained a
reasonable suspicion. The Second Appellant did not lead evidence that
the detention was justified. The Respondent subsequently claimed R95
000.00 for unlawful! arrest and detention and R5 000.00 for
legal
costs in the Tswane magistrates court in Pretoria against the First
and Second Appellants jointly and severally.
[7]
Although the Magistrates Commission was cited as Third Defendant, the
Third Defendant did
not appear and the case did not proceed against
the Third Defenndant. The magistrate in the maintenance court was not
joined as
a defendant.
[8]
In the judgement delivered on 16 March 2018 (the matter was heard on
11 August 2017), the
Magistrate made the following order:
"(a)
The Defendant is directed to pay the plaintiff R75,000.00
(seventy-five thousand rand) being damages for unlawful arest
and
detention;
(b)
Interest on the aforesaid amount at a rate of 10.25% per annum from
the date of judgement to the date of payment;
(c)
Costs of suit on a party and party scale."
[9]
The Appellants applied for condonation for the late request for
reasons for the judgement
delivered on 16 March 2018 in terms of the
Magistrate Court Rule (MGR) 54(1). The vague wording of the said
order that did not
indicate aginst which Defendant the order was
given, prompted the Appellants to request reasons.
[10]
On 2 October 2018 the magistrates court granted condonation for the
late request for reasons
in terms of MGR 51(1). On 10 October 2018
the Appellants requested reasons for the judgement.
[11]
On 14 November 2018 the reasons were provided and in November 2018
the Appellants noted their
appeal in terms of the Uniform Rules of
Court (URC) 51(3).
[12]
The Magistrate provided the following reasons on 14 November 2018:
"I
stand by my written judgment delivered on 16 March 2018 which is
attached herein. In the light of the fact that I have already
made a
ruling that Second Defendant is vicariously liable, there can be no
liability against the Third Defendant. The order is
therefor amended
as follows:
(a)
The First and Second Defendants are jointly and severally
liable to
compensate the Plaintiff in the amount of R75, 000.00 (seventy
five thousand rand) for unlawful arrest and detention;
(b)
Interest on the aforesaid amount at a rate of 10.25%
per annum from
date of judgement to date of payment;
(c)
Costs of suit on party and party scale."
[13]
The First and Second Appellant appeal against this order.
THE ISSUES TO BE DECIDED
[14]
The Respondent issued summons for damages as a result of his unlawful
arrest and detention and claimed
R100,000.00 . The issues to be
decided are:
[14.1] The points
in limine raised by the Respondent that the appeal was out of time
and did not comply with Rule 53(7) of
the Uniform Rules of Court.
[14.2]
Was the Respondent unlawfully arrested and detained?
[14.3]
Was the magistrate employed by the First Appellant and did he act in
the course and scope of his employment?
[14.4]
Did the magistrate act negligently or maliciously?
[14.5]
Is the Second Appellant liable as the warrant officer and other
members of the South African Police Services
executed an order of the
magistrate?
[14.6]
Was the R75.000,00 quantum correctly awarded?
POINTS
RAISED
IN
LIM/NE
BY THE
RESPONDENT
[15]
The Respondent raised two points
in
limine.
Respondent
submitted that the
procedure
to be followed
in
respect of appeals from the mag
i
strate
court
i
s
divided
into
two
stages. The
first
stage
deals
with
the
processes
in
the
magistrate court and is
regulated by Rule 51 of the Magistrate Court Rules
("MCR").
The second
stage deals with the process
in the high court and
is
regulated by Rule 50(1) of
the Uniform Rules of Court ("URC").
[16]
Respondent submitted that the appeal is not properly noted because
the Appellants failed to timeously
note the appeal in comp liance
with the provisions of Rule 51(3) of the MCR which provides that
"an
appeal shall be noted
within 20
(twenty)
days
after
the
date
of
judgement
appealed
against
or within 20 (twenty) days after the Clerk of the
Court has supplied a copy of the judgement in writing to the party
applying therefor,
whichever period shall be the longer '.
[17]
The Appellants were granted condonation for the late request for
written reasons for the judgement
in terms of MRC 51(1) but
Respondent submitted that Appellants failed to also seek condonation
in the high court as the notice
of appeal was given more than in
November 2018 and the judgement on 16 March 2018 .
[18]
The Appellants were in our view correct to ask for reasons as it was
not possible to appeal against
the order dated 16 March 2018. The
Appellants then timeously noted their appeal in the high court after
receipt of the amended
order of 14 November 2018.
[19]
Because the Appellants properly noted the appeal in accordance with
MCR 51(3) after the reasons were
provided and prosecuted the appeal
timeously in terms of URC 50(1), there is no need to lodge a further
application for condonation
in the court of appeal.
[20]
It was further submitted as a second point
in
limine,
that the Appellants failed to serve the Respondent with the
record as directed by the URC 50(7)(d) which states that the party
lodging
copies of the record shall not less than 15 (fifteen)
days prior to the date of the hearing of the appeal also furnish each
of the other parties with 2 (two) copies thereof, certified as
prescribed by the rules.
[21]
The Appellant did not comply with URC 50(7)(d) in that the Appellants
uploaded an incomplete record
of the appeal on Case Lines without the
consent of the Respondent.
[22]
The following copies were not included in the record:
[22.1]
The Rule 50(1) notice to request reasons for judgement dated 6 April
2018;
[22.2]
The condonation application for the late request of the reasons dated
3 May 2018;
[22.3]
The notice of intention to oppose the application for condonation
dated 9 May 2018.
[23]
The question is whether failure to provide the documents listed
above, failure to provide a list of
all the documents that have been
excluded from the record, failure to have the excluded documents
available at the appeal, failure
to list the documents that have been
excluded, and failure to consult with Respondent's attorneys about
which documents should
be excluded, constitutes failure to properly
proceed with the appeal.
[24]
This failure to comply with the rules is clear but the question is
whether such failure justifies an
order that the appeal be struck
from the roll with costs. The documents that were excluded are not
material to the issues to be
decided in this appeal. We are of the
view that striking the appeal from the role is not justified . See S
v
Jafta
(CA&R 490/02)
[2003] ZAECHC
18
(10 April 2003);
Myeni v
Organisation Undoing Tax
Abuse
(15996/2017)[2021]ZAGPPHC 56 (15 February 2021);
Minister
of
Home
Affairs v
Liebenberg
2002 (1) SA 33
(CC) 35H-36A;
Kuilders v
Pharo
(LCC101R/OO)
[2001] ZALCC 17
(22 May 2001).
[25]
The Appellants failure to timeously file a request for reasons which
is a relatively simple and uncomplicated
notice caused them to apply
for condonation. The reasons for that delay and why condonation was
granted, are not before this court.
This effectively caused a 7
(seven) month delay in prosecuting the appeal to the detriment of the
Respondent. Appellants also failed
to comply with Rule 50(7) of the
Rules of the High Court and failed to seek condonation for this
failure. In both instances , the
Respondent was severely prejudiced.
This will be taken into account when considering the cost orders.
[26]
However, this failure is not considered to be sufficiently grave to
strike the appeal from the roll.
The points
in
limine
are dismissed . No order as to costs is made in favour of the
Appellants in their opposition of the points
in
limine.
WAS THE RESPONDENT
UNLAWFULLY ARRESTED AND DETAINED?
[27]
It is common cause that the Respondent was arrested by the warrant
officer and detained by members
of the South African Police Services
persuant to an order by the magistrate without having committed an
offence and having been
found guilty of any offence.
[28]
The Second Appellant admitted that Respondent was arrested without a
warrant and detained by members
of the South African Police Services
who were acting in the course and scope of their employment.
The Second Appellant did
not lead evidence that the detention was
justified.
[29]
We concur that the Respondent was unlawfully arrested and detained
for one day by members of
the South African Police services and that
the entrenched Constitutional rights of the Respondent were breached.
[30]
Because the court a quo found that the arrest was made without a
warrant , it referred to Section 40(1)(b)
of the Criminal Procedure
Act 51 of 1977 ("the CPA") which provides for an arrest by
a peace officer without a warrant
of any person whom he reasonably
suspects of having committed an offence referred to in Schedule 1 of
the CPA. The Second Appellant
did not rely to this Section in its
plea and argued that it is not applicable. We concur that it is not
applicable.
VICARIOUS
LIABILITY
OF
THE
MINISTER
OF
JUSTICE
AND CONSTITUTIONAL
DEVELOPMENT
[31]
The First Appellant pleaded that the magistrate was not his employee,
even if the magistrate is administratively
appointed by the First
Appellant on the recommendation of the Magistrates' Commission .
Thus, the First Appellant cannot be held
vicariously liable. The
First Appellant pleaded further that he cannot be held vicariously
liable for acts of a magistrate which
were discharged whilst he was
exercising a judicial discretion. Counsel for First Appellant argued
that if the First Appellant
is held vicariously liable, then the
magistrate did not act maliciously but negligently.
[32]
Relying on the judgements of
Janse van der Walt
and
Another
v Minister of
Safety
and
Security
and
Others [2011]
ZAGPJHC 15
(25 January 2011),
Tsotetsi v The
Honourable
Magistrate Delize Smith and
Another (2396
9
1
150)
[2016]
ZAGPJHC 329
(29 November 2016),
Minister of Safety
and
Security v Van der Walt and Another
(103
7
1
13)
[2014]
ZASCA
174
,
the court
a quo
found that
magistrates are employed by the Minister of Justice and held the
following in paragraph 10 of the judgement:
"The
question who Magistrates are employed by is a legal issue, governed
by statute. In my view, the legal position of employees
of the
National Prosecuting Authority and that of magistrates are not
identical. Section 9(1)(a) of the Magistrates Court Act 32
of 1944
provides expressly that magistrates are appointed by the Minister of
Justice. The
Magistrates Act 90 of 1993
, establishes a Magistrates
Commission which
inter
alia
ensures that the
appointment of magistrates by the Minister takes place without favour
or prejudice and advises the Minister thereon.
In terms of Section 1O
of the Magistrates Court Act, the Minister of Justice appoints
magistrates after consultation with the Magistrates
Commission.
Although the magistrates function independently and impartially that
does not detract from the fact that
they are appointed by
and employed by the Minister of Justice. To the contrary, the
statutory framework within which magistrates
are appointed by the
Minister of Justice ensures that they are appointed on the basis that
they function independently and impartially
. In carrying out their
functions independently and impartially, they act within the course
and scope of their appointment and
in accordance with the basis on
which they were appointed . It follows that the Minister of Justice
remains in my view, as in the
past, vicariously liable for the
conduct of magistrates acting within the course and scope of their
employment."
[33]
It is trite law that whilst serving in a judicial capacity, a
judicial officer can
only be held delictually liable for an act or
omission if his or her actions are ma/a
t
ides,
malicious or fraudulent
(
Moeketsi v
Minister van
Justisie
en
in
ander
1988 (4) SA 707
(T) at 713G;
Telematrix
(Pty)
Ltd
tla
Matrix
Vehicle
Tracking v
Advertising
Standards
Authority
SA
2006
(1) SA 461
(SCA);
Claassen
v
Minister
of
Justice
and
Constitutional
Development
&
another
2010 (6) SA 399
(WCC) , para 22).
[34]
In the
Telematrix
case, Harms JA turned to Johannes
Voet
(Commentary on
the
Pandects
5.1.58, Gane's translation) to cite the common law rule in this
regard, as follows:
But
in
our
customs
and
those
of
many
other
nations
it
is
rather
rare
for
the judge
to
[bear
the responsibility
for the
outcome] by ill
judging .
That
is
because
the
trite
rule
that
he
is
not
made
liable
by
mere
lack
of
knowledge or
[lack
of
skill],
but
by
fraud
only, which
is
commonly difficult
of
proof It
would be
a
bad business
with judges ,
especially
lower
judges
who
have
no skill
in
law,
if
in
so
widespread
a science
of
law
and
practice,
such
a
variety
of
views,
and
such
a
crowd
of
cases
which
will
not
brook
but
sweep
aside
delay,
they
should be
held
personally
liable
to
the
risk of
individual suits,
when
their
unfair judgment
springs
not
from
fraud,
but
from
mistake, lack
of
knowledge
or [lack
of skill].
(para
17).
[35]
The learned judge went on to comment that the 'decisive policy'
underlying the immunity of the judiciary
is the protection of it's
independence to enable it to adjudicate fearlessly.
Litigants
...
are not "entitled to a perfect process,
free
from innocent [i.e. non
mala fide]
errors
(para 19).
[36]
In
Claassen
supra,
a full bench of the
Western Cape High Court refused to dilute judicial immunity by
stripping away immunity for negligent conduct
(para 27). The court
also found that the criminal magistrate concerned enjoyed immunity
against delictual liability even though
he had unlawfully committed
the appellant to prison in breach of the latter's
fundamental rights under
s 12(1) of
the Constitution. The court noted that
although section
12 of the Constitution entrenched a right to
personal liberty, it did not by itself afford a right to compensation
to a person
whose right had been infringed (para
31).
[37]
In
the
case at hand, the question is therefore whether
the magistrate's actions were ma/a
fide,
malicious or
fraudulent, or, drawing from
Telematrix,
whether the
magistrate committed an 'innocent error'? In
May v Udwin
1981
(1)
SA 1
(A), which dealt with a judicial officer's liability for
defamatory statements, Joubert JA expanded on the meaning of
malicious
conduct as 'conduct actuated by a dishonest or improper
motive' (at 11C-D).
[38]
In
Claassen,
a criminal court magistrate summarily
remanded the appellant in custody until the next date to which the
appellant's co-accused
in the pending criminal trial and been warned
or remanded to appear. The appellant and his co-accused were facing
charges relating
to theft and malicious damage to property. The
magistrate was annoyed with the appellant who had not appeared in
court on a particular
date, but the accused had experienced
unforeseen difficulties with the transport he had arranged from Cape
Town to Oudtshoorn in
order to be in court on the appointed date.
Instead of enquiring into the reasons underlying the appellant's
non-appearance
as he was required to do in terms of
s 72(4)
of
the
Criminal Procedure Act 51 of 1977
, the magistrate summarily
ordered his detention in prison. He had also not cancelled the
appellant's release on warning
in the manner prescribed in
s 72A
read
with s 68(1) and (2) of the Act. The magistrate's explanation for his
conduct was that s 72(4) of the CPA employed the
word
'may' rather than 'must' and
was therefore permissive, not
pre-emptory . The court
found this explanation inherently implausible in the context of the
magistrate's conduct, but held back
from finding that such conduct
was ma/a
fide
or malicious, despite being urged to do so. A
decisive consideration appears to have been the absence of a
dishonest , improper
or 'unreasonable' motive.
[39]
Claassen
can nevertheless be distinguished from
this
case
on the basis of the status of the appellant,
who had already been accused.
[40]
In
Moeketsi supra,
a regional magistrate ordered the summary
detention of a police official who had arrived at court to deliver a
docket. On the magistrate's
version of events, the police official
had disturbed court proceedings and disrespected the court by moving
between the bench and
the witness stand without bowing to the
judicial officer. He then proceeded to the back of the court and had
a brief exchange with
a colleague with his back to the presiding
officer. This proved too much for the regional magistrate who ordered
his summary detention.
At the trial, however, it emerged that the
magistrate had warned the police officer concerned about such
disturbances . The court
found that the magistrate's conduct, while
unreasonable and unfair, fell short of being ma/a
fide
(at
714C) . The magistrate was guilty of negligence and was thus
protected against delictual prosecution on the basis of the doctrine
of judicial immunity.
[41]
Moeketsi
supra,
is distinguishable from
this matter
on at least three grounds: The first is the
history of
engagement
between the magistrate and the officer,
the second is the fact that the officer appeared in court in official
capacity, and the
third is that the case was decided prior to the
Constitution becoming effective.
[42]
Janse
van
der
Walt
&
another
v
Minister
of
Safety
and
Security
&
others
[2011] ZAGPJHC 15 (25 January 2011) sheds
further light on how courts approached the question of conduct
that is
male fide,
malicious or fraudulent on the part
of a judicial officer. In the action, the plaintiffs sought damages
for malicious prosecution
and unlawful arrest. The defendant was an
ordinary member of public, but the magistrate hearing the case
had been overheard
saying that she 'will not tolerate this
anymore'. She then intervened in the case by adding a charge of armed
robbery to the charge
sheet, which prevented the plaintiffs from
applying for bail. In determining whether the magistrate had acted
with malice and bad
faith, the court made the following observations
at para(s). 48 - 9:
"Since
the
existence
of
malice
or
bad
faith
is
not
an
issue which
can
be
observed
in
the
abstract,
it
is
by
necessity
an
issue
which
must
be
determined by drawing
an
inference from
established
factual circumstance
s
.
In
the absence of
rebutting
evidence
or
a
plausible
explanation
by
the
magistrate in
question,
such
an
inference
is
justifiable
and
the
most
probable and
most
plausible
inference which
can
be
drawn
from the testimony
of the plaintiffs
regarding
the
conduct
of the magistrate.
There
clearly was
no
factual
or
evidential
basis
for
the
formulation of
the charge of
armed
robbery against the
plaintiffs
before the
prosecutors
or before
the
magistrate.
The
comment of
the
magistrate
that the
type of
conduct as she apparently suspected the
plaintiffs were guilty of "can no longer be tolerated",
suggests, on
a
balance of probabilities and in the
absence of rebutting evidence, that the magistrate was advancing
a
personal agenda which was not disclosed to the plaintiffs and
which was intended to teach the plaintiffs
a
lesson,
irrespective of whether they were legally and procedurally entitled
to be released on bail.
[43]
In the matter before this court, the magistrate ordered the summary
detention of the Respondent after
his offer to pay maintenance of
R300 per month for the maintenance of his minor child was deemed too
low and the magistrate sent
him to the cells 'to think "clearly
and thoroughly" and to come up with a better offer .' The
Respondent was arrested
without a warrant and was not charged
with any offence. Unlike
Claasen,
the Respondent had
not already been accused and the magistrate was not laboring under a
false impression that his powers were permissive
rather than
mandatory. The facts of the case appear to be most closely aligned
with those in
Janse van
der Walt
in that
the conduct of the magistrate sought to teach the applicant a lesson.
The bullying tactic of detaining the Respondent without
a warrant of
arrest is a clear abuse of judicial power and malicious.
[44]
In the result we find that the magistrate acted maliciously. The
submission by counsel for First Appellant
that the magistrate acted
negligently and not maliciously is rejected.
[45]
The court a
quo
found that the Magistrate enjoys delictual
immunity so long as he
I
she does not act with malice.
The court a
quo
also relied on the decision of
Minister
of Safety and Security and Others v Van Der Walt and Another
(103
7
1
13)
[2014] ZASCA 174
;
Le Roux and Others v Dey
2011 (3) SA 274
(CC)
and
Janse
van der Walt and Another
v Minister of Safety and
Security and Others
2011
ZAGPJHC
15
(25
January 2011).
[46]
The court
a
quo
held that "vicariously
liability may in general terms be described as the strict
liability of one person for the delict
of another. The former is thus
indirectly or vicariously liable for the damage caused by the latter.
And the liability applies
where there is a particular relationship
between the two persons. Where an employee, acting within the scope
of his employment
, commits a delict, the employer is fully liable
for the damage. Fault is not required on the
part of the employer
, and therefore this is a form of
strict
l
i
ability
."
[47]
The court a
quo
held that the magistrate is employed by
the Department of Justice and Constitutional Development and that the
Minister of Justice
remains vicariously liable for the conduct of a
magistrate acting within the course and scope of his employment. (See
Tsotetsi
v The
Honourable Magistrate
Delize Smith and
Another
(23969/150) [2016] ZAGPJHC
293 (29 November 2016);
Minister
of
Safety
and
Security v
Van
Der
Walt
and
Another (1037/13)
[2014] ZASCA
174).
[48]
We find that the magistrate acted as employee of First Appellant in
the exercise of his duties.
The magistrate acted maliciously . The
magistrate did not enjoy judicial immunity. The magistrate
accordingly committed a delict
against the Respondent whilst acting
within the course and scope of his employment. The First Appellant is
therefore vicariously
liable. There was no need to have joined the
magistrate personally as a defendant in the court
a quo.
VICARIOUS LIABILITY OF
THE MINISTER OF POLICE
[49]
The Second Appellant pleaded that the Respondent was arrested and
detained by members of the South
African Police Services in
compliance with a court order and accordingly cannot be held liable.
Second Appellant further admitted
that the members of the South
African Police Services were acting within the scope and course of
their employment with the Minister
of Police. Second Appellant also
pleaded that the court
a quo
incorrectly applied
section
40(1)9b)
of the
Criminal Procedure Act 51 of 1977
as the court
orderly had to execute a court order. Second Appellant did not rely
on this section in his plea and the court
a
quo
should not have relied on it.
[50]
Section 165(5) of the Constitution determines that an order or
decision issued by a court binds
all persons to whom and organs of
state to which it applies and therefore all judicial orders must be
obeyed. The Second Appellant
pleaded that the police officers
acted on the strength of a court order. Relying on Section 165(5) of
the Constitution argued
that the police officer simply executed an
order of the magistrate and he is not entitled second guess that
order. Accordingly,
he did not act unlawfully, and the appeal of the
Second Appellant should be upheld. Second Appellant relied on the
judgement of
the
Department
of
Transport
and Others v
Tasima (Pty)
Ltd
2017 92) SA
622
(CC) 669A-B
[51]
We concur with this submission and find that the police officers were
not acting unlawfully as they
were complying with a court order.
[52]
The delay in prosecuting the appeal, the failure to explain the delay
and the failure to properly comply
with the URC is taken into account
when considering the cost orders in this appeal. The Respondent has
been prejudiced by the delay
and failure to properly comply with the
URC, apart from having been deprived of his fundamental rights by the
malicious conduct
of the magistrate.
WAS THE QUANTUM
CORRECTLY
AWARDED?
[53]
The presiding magistrate found (in paragraph 16 of the judgement) ,
that in determining the fair and
reasonable amount of compensation
the court must consider the following factors :
(a)
The circumstances under which an arrest took place;
(b)
the degree of publicity afforded to the arrest;
(c)
the duration of the detention;
(d)
the absence or presence of malice on the part of the arrestor;
(e)
the conditions of the cell;
(f)
the awards in previous comparable cases; and
(g)
the effects of inflation.
[54]
The Respondent claimed R95,000.00 (ninety-five thousand rand) for
unlawful arrest and detention
and a further amount of R5,000.00 (five
thousand rand) for legal costs. The magistrate found that the
Respondent did not lead evidence
about the R5,000.00 (five thousand
rand) claimed in respect of legal fees and accordingly did not deal
with the claim for legal
expenses.
[55]
These facts regarding the arrest and detention were not disputed and
the magistrate took in consideration
that that the Respondent did not
commit any offence and that the arrest was persuant to an instruction
of the magistrate that was
clearly malicious.
[56]
In relying on the matter of
Strydom
v
Minister
of
Safety
and
Security
and
Another
(31353/07)
[2014] ZAFSHC 73
(28 May 2014) the magistrate quoted
the principles for damages for unlawful arrest and detention as
follows :
"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 make for such infractions
reflect
the importance of the right to personal liberty and the
seriousness with which such arbitrary deprivation of personal liberty
is
viewed in our law. It is impossible to determine an award of
damages for this 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
quantum
of damages on such facts."
[57]
In the matter of
Minister
of
Safety
and
Security
v
Kruger
(183/01)
[2011] ZASCA 7
(8 March 2011) the Court on appeal
awarded an amount of R50,000.00 (fifty thousand rand) for unlawful
arrest and detention of 1
(one) day. In
Guidione
v
Minister
of
Safety
and
Security
(2008/37480) [2015] ZAGPJHC
110 (11 June 2015) the Plaintiff was arrested and detained from 24
August 2008 to 25 August
2008 and the amount awarded was R75,000.00
(seventy-five thousand rand).
[58]
The Magistrate also considered the case of
Minister of Safety and
Security v
Scott (969/2013)
[2014] ZASCA 84
(30 May 2014) where
the Plaintiff was awarded initially an amount of R75,000.00
(seventy-five thousand rand) by the court a
quo
for
unlawful arrests and detention of 9 (nine) hours. The amount of
R75,000.00 (seventy-five thousand rand) was altered on
appeal to
R30,000.00 (thirty thousand rand).
[59]
The amount awarded by the magistrate was not seriously disputed by
the Appellants . We concur with
the finding of the magistrate.
[60]
In the result the following order is made: -
[60.1]
The points
in
limine
are dismissed, no
order as to costs is made;
[60.2]
the appeal of the First Appellant is dismissed with cost on an
attorney and client scale;
[60.3]
the appeal of the Second Appellant is upheld, no order as to costs is
made; and
[60.4]
the First Appellant is ordered to pay the Respondent the amount of
R75 000,00 (seventy-five thousand rand) plus
interest at a rate of
10.25% per annum from 14 November 2018 to date of payment, plus the
costs of the hearing in the court a quo
on a party and party scale.
C N Van Heerden
[Acting
Judge of the
High Court, Gauteng
Division,
Pretoria]
I
CONCUR
TLHAPI
VV
[Judge
of the
High Court, Gauteng
Division,
Pretoria]
DATE
OF HEARING: 16 February 2021
DATE
OF JUDGEMENT: 28 June 2021
APPEARANCES:
COUNSEL
FOR FIRST APPELLANT: Adv Maelane
COUNSEL
FOR SECOND APPELLANT: Adv Tshivhase
INSTRUCTED
BY: THE STATE ATTORNEY
FOR
RESPONDENT: Mr Makapan
INSTRUCTED
BY: Makapan Attorneys