Mothibi v Minister of Police (730/2015) [2021] ZANCHC 35 (30 July 2021)

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[2021] ZANCHC 35
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Mothibi v Minister of Police (730/2015) [2021] ZANCHC 35 (30 July 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
CASE NO.:
730/2015
Date heard:
09-09-2020
Date delivered:
30-07-2021
In
the matter between:
Faniki William
Mothibi

Plaintiff
and
Minister
of
Police
Defendant
CORAM:
WILLIAMS J:
JUDGMENT
WILLIAMS
J:
1.
On 29 March 2019 I gave judgment in favour
of the plaintiff in respect of the trial on the merits of this action
and ordered that
the defendant pay the plaintiff’s proven or agreed
damages as a result of his unlawful arrest and detention on 1
February 2015
until his release on bail on 6 February 2015.
2.
This judgment relates to the trial on quantum.
3.
In his particulars of claim the plaintiffs
Mr Faniki Mothibi, claimed damages in the amount of R1 million made
up as follows:
General damages in
the sum of R750 000, 00; and
Future
damages in the sum of R250 000, 00.
4.
At the quantum trial the plaintiff, who
throughout appeared in person, informed that he intended to pursue
only the claim for general
damages in an amount of between R400 000.
00 and R750 000, 00 and that he did not intend to call any
witnesses other than giving
evidence himself.
5.
The plaintiff testified that he was 55
years old and an auto electrician by trade.  At the time of his
arrest for car theft he
was self-employed and operated his business
from his workshop premises in Galeshewe, Kimberley.
6.
He testified that he had been imprisoned
for some three years 20 years ago but had thereafter mended his ways
and had started his
business with only a tool-box.  Eventually
he had built himself up to where he had established a healthy client
base consisting
of local businesses and the general public.
7.
The plaintiff testified that on the day of
his arrest he was first kept in a “
friendly”
room at the Barkly-West police station for about 3 hours before he
was formally arrested.  Thereafter he was taken to the Galeshewe
holding cells where he was detained overnight before his first
appearance in the magistrates court.  He was thereafter detained
at the Bougroep Prison where he spent four days and nights before
being released on bail on 6 February 2015.  He thereafter
appeared in court on a few occasions for postponements before the
charge was withdrawn on 9 March 2015.
8.
During his time in detention he felt
humiliated and stressed.  The cell was overcrowded and he had to
sleep on the floor on a
filthy blanket.  The cell smelled foul
and the food was sub-standard.  He was also not given his
medication.
9.
The plaintiff stated that he was under
psychiatric treatment before his arrest for a mood disorder.
After his arrest and detention
he could not sleep at night as a
result of the humiliation of his arrest.  What aggravated the
situation for him was that he
was arrested for the theft of a
customer’s vehicle.  The news of his arrest had spread quickly
through the community and had
a negative effect on his business.
10.
He felt a lot of anger and found himself
engaged in unnecessary disputes and conflict with other persons which
further affected his
business, which he describes as then having a
knock-on effect on his personal life.
11.
The plaintiff testified that he consulted
his psychiatrist who informed him that it was not advisable to
increase his medication.
As a result he had to deal with his
anger issues by himself.  He could not handle the pressure and
realized that he had to distance
himself from conflict situations.
His business had also deteriorated as a result of the stigma attached
to his arrest.
The business had now became dormant and he only
occasionally attends to auto-electrical work when requested to do
so.  He now
earns an income of between R5000, 00 and R6000, 00
per month with which he has to provide for nine children between the
ages of 8
years and 31 years.
12.
The plaintiff further testified that this
previous relationship also deteriorated after his arrest and
detention – mainly due to
his frustration regarding his business –
as a result whereof he and Ms Lerato Moduo, who testified for the
plaintiff in the merits
trial, decided to part ways during 2018.
He is currently in another relationship.
13.
Quite astoundingly, the plaintiff testified
that he was arrested again during 2017 for suspicion of theft of a
motor vehicle.
On that occasion members of the South African
Police Service entered his business premises with a search and
seizure warrant and
seized a vehicle on his premises.  The
Director of Public Prosecutions however declined to prosecute the
matter.  The plaintiff
states that he felt victimized by the
SAPS as a result of the matter
in casu,
which further contributed negatively to his mental well-being and his
business.  He states that he lost interest in the motor
vehicle
industry.
14.
During cross-examination by Ms Stanton, who
appeared on behalf of the defendant, it transpired that the plaintiff
only closed his
business during 2018, although he states that the
business had been dwindling since after his arrest and detention
during 2015.
15.
The plaintiff also conceded during
cross-examination that he had a history of being unable to deal with
conflict even before the arrest
and detention
in
casu
and which has resulted in him
being convicted on several occasions on charges of
inter
alia
iniuria
,
assault and malicious damage to
property.  He stated that that was the reason that he had sought
and had been receiving psychiatric
treatment since 1996.  He
denied however that the reason for his personal and business problems
was as a result of his pre-existing
psychiatric condition since he
had been running a successful business before the incident, despite
this condition.
16.
No further witnesses were called by the
plaintiff.  The defendant thereafter closed its case without
calling any witnesses.
I requested the parties to provide me
with written heads of argument.
17.
In his heads of argument the plaintiff,
despite having abandoned his claim for future damages during the
trail, reintroduced the claim
for future loss of income as a result
of the unlawful arrest and detention.  As no evidence was
presented, expert or otherwise,
to substantiate this claim in the
amount of R250 000, 00 which was in any event abandoned, I do not
intend to deal with it at all.
18.
In the assessment of damages for
unlawful arrest and detention, the Supreme Court of Appeal has stated
in
Rahim and Others v Minister of Home
Affairs
[2015] 3 ALL SA 425
(SCA), at
paragraph 27 thereof that:
“
[27]
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 a 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:
(i)
circumstances under which the deprivation of liberty took place;
(ii)
the conduct of the defendants; and
(iii)
the nature and duration of the deprivation.
”
19.
In
Minister of
Safety and Security v Tyulu
2009 (5) SA
85
(SCA), Bosielo AJA (as he then was) commented at 93 d-f (paragraph
26) thereof as follows:
[26]
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 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. The correct approach is to have
regard to all the facts of the particular case and to determine
the
quantum of damages on such facts (Minister of Safety and Security v
Seymour
2006
(6) SA 320
(SCA)
325 para 17; Rudolph & others v Minister of Safety and
Security & others (380/2008)
[2009]
ZASCA 39
(31
March 2009) (paras 26-29).”
20.
The plaintiff in his heads of argument has urged me to take into
account the circumstances of his arrest and
detention (which I have
dealt with fully in the judgment on the merits) and the inescapable
inference that he could have been arrested
for no other reason than
that the complainant was a police officer.
21.
The plaintiff also contended that I take
into consideration, when assessing the quantum of his damages, that
his mental condition
declined to such an extent after the arrest and
detention that it affected his productivity and business operations.
22.
He also referred me to the matter of
Seria
v Minister of safety and Security and Others
2005
(5) SA 130
(C), where the plaintiff, an architect by profession, who
was unlawfully arrested and deprived of his liberty for about 24
hours,
was awarded R50 000, 00 in damages (current value
according to the Consumer Price Index R116 000, 00).
23.
With reference to the remarks by the SCA in
the two cases quoted above in paragraphs 18 and 19, Ms Stanton has
contended in her written
heads of argument, that although the
plaintiff should be compensated for the deprivation of his freedom
and unlawful incarceration,
he should not be enriched.  She
argued that:
23.1
The plaintiff failed to prove that his arrest and detention had an
impact on his personal life, in that his relationship
with Ms Moduo
only ended in 2018, three years after the incident.  He is also
currently in a new relationship;
23.2
The plaintiff failed to prove that the unlawful arrest and detention
during 2015 had a negative effect on his business.
That on his
own version the business was still operating until 2018.  In
addition the plaintiff was arrested again during 2017
for theft of a
motor vehicle;
23.3
The plaintiff has been a known psychiatric patient since 1996 and had
experienced sleeplessness, agitation and anger management
issues
prior to his arrest and detention; and
23.4
The plaintiff failed to prove, save for the deprivation of freedom,
that the conditions in prison were poor or that he
suffered
discomfort and pain and a loss of amenities of life.
24.
Ms Stanton consequently contends, with
reference to the case of
Minister of
Safety and Security v Scott and Another
[2014]
3 All SA 306
(SCA), where an award for damages for the unlawful
arrest and detention overnight in a police cell of a professional
hunter, of R75 000,
00 was substituted on appeal with an award
of R30 000, 00, that an award for damages suffered by the
plaintiff in an amount
of less than R100 000, 00 would be
appropriate.
25.
I have myself had recourse to comparable
cases.  In
Foster v Minister of
Safety and Security
2013 (6K6) QOD 166
(GSJ), a scrapyard owner, 60 years old at time of trial, was arrested
in the presence of his employees at his
place of business on
suspicion of robbery of a motor vehicle.  During his
interrogation at the police station he was tortured
by the police
officers until he lost control of his bladder and wet himself.
He was humiliated, denied access to a telephone,
his family and legal
representation.  He had spent 4 days in custody when he was
taken to court and the charge was withdrawn.
He was awarded
general damages in the amount of R200 000, 00 (current value
R305 000,00),
26.
In
Gobamang v
Minister of Police
2011 (6K6) QOD 85
(ZAGPJHC), an adult male school teacher was arrested in full view of
the public on the false accusation that he
was drunk in public.
He was detained for 16 hours.  His incarceration caused him
embarrassment and humiliation and tarnished
his reputation amongst
the learners at his school.  He was awarded R70 000, 00 in
damages (current value R112 000,
00).
27.
Whilst amounts previously awarded in
comparable cases provide a general indication of what is fair and
appropriate compensation it
can never be decisive.  No two cases
are the same and each case must be considered on its own facts and
circumstances.
28.
In casu
,
the plaintiff has no doubt suffered embarrassment and humiliation due
to his unlawful arrest and detention.  It is also not
hard to
imagine that his reputation, as a businessperson, dealing with motor
vehicles, being arrested and detained for motor vehicle
theft, had
been tarnished.  On the other hand the plaintiff is not
unfamiliar with conflict with the law and the fact of his
previous
incarceration for three years would have rendered the circumstances
encountered in prison less shocking and humiliating
than to a person
who had never experienced such circumstances.  A further
difficulty I experience, in the absence of any expert
evidence, is
the extent of the psychological impact of the arrest and detention
in
casu
on the plaintiff’s wellbeing,
his personal relationships and his business.  The plaintiff has
himself testified that the incident
during 2017 has additionally
contributed negatively to his wellbeing.  Those circumstances
must however be disregarded for purposes
of a fair award in this
matter.
29.
Be that as it may I am constrained to make
a fair determination on the evidence before me.  In this regard
the humiliation, impairment
of the plaintiff’s dignity and
reputation and the unlawful deprivation of his freedom deserves
recognition.  Regard being
had to all the circumstances of this
case I am of the view that a fair and proper award for the damages
suffered by the plaintiff
occasioned by his unlawful arrest and
detention, would be R250 000, 00.
In
the event the following order is made.
a)
The defendant is ordered to pay the
plaintiff the sum of R250 000, 00 together with interest thereon
calculated at the prescribed
legal rate from date of this order to
date of payment.
b)
The defendant is ordered to pay the
costs of the action.
CC
WILLIAMS
JUDGE
For
Plaintiff:
Mr F Mothibi (In Person)
For
Defendant:         Adv. A
Stanton
The
State Attorney