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[2021] ZAECMHC 1
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MX v Minister of Police (1329/2016) [2021] ZAECMHC 1 (12 January 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, MTHATHA)
CASE
NO.: 1329/2016
Date
of hearing: 10 December 2020
Date
delivered : 12 January 2021
In
the matter between:
M[…]
X[…]
Plaintiff
And
MINISTER
OF POLICE
Defendant
JUDGMENT
MAJIKI
J:
[1]
This matter is for determination of quantum of damages.
Initially, the defendant had resisted
the plaintiff’s claim for
unlawful arrest, detention and assault. He had pleaded that the
plaintiff was lawfully arrested
without warrant of arrest, in terms
of section 40 (1)(b) of the Criminal Procedure Act (CPA) because he
was suspected of having
committed rape. After the death of the
late Constable Msiwa, the defendant’s key witness, the
defendant conceded liability
for unlawful arrest and detention.
The plaintiff abandoned his claim for assault. The defendant’s
liability is
a vicarious one, as the person liable for wrongful acts
or omissions by the members of the South African Police Service
(SAPS)
during the course and within the scope of his employment with
the defendant.
[2]
On Saturday 27 July 2013, the plaintiff, a 27 year old unmarried male
was arrested by two members of
SAPS. He was told that he was
suspected of having committed an offence of rape. In his
particulars of claim he averred
that he appeared in court on 28 July
2013, however, during the hearing it transpired that he appeared on
Monday 29 July 2013.
The defendant was prepared to compensate
the plaintiff for his damages until the said date. The
plaintiff did not accept
the said offer. He said wanted to be
compensated until 11 February 2014 when he was eventually released on
bail. On
3 October 2014 his matter was struck off the roll of
criminal trials.
[3]
Only the plaintiff testified during the hearing of the matter.
He said upon the police arrival
at his home in a white van, they
called out his surname, grabbed him with his belt, hit him with the
butt of the gun and handcuffed
him. He started to bleed as they
took him to the van, saying he had raped. They put books on his
penis.
They drove fast causing him to bump from
side to side. They stopped at Caltex garage towards central
police station.
All the time the books were still left on top
of his penis. They eventually took him to central police
station. One
of them told a lady who was at the front office
that he had raped. That lady insulted him saying he had AIDS
and was a rapist
who raped children. Handcuffs were only
removed when he was taken to the cells.
[4]
On his first night he never slept, he was insulted by fellow inmates
for being a rapist. That caused
him to be stripped of blankets
and sodomised. He was sodomised by different inmates of no less
than five at a time, taking
turns. He was bleeding throughout.
The cell and the blankets were dirty, there were lice, the window
panes were also
broken and the water was leaking. It was cold.
His food was also taken by inmates. They were more than 30 in
the cell, the cell was full. The toilet was within their view
and close to them. He experienced a lot of pain in his
abdomen
and suffered swollen kidneys. He suffered fecal incontinence
for sometime. He would realise after he had soiled
his pants
that he passed a bowel.
[5]
He was assaulted by fellow prisoners in the holding cells at court
saying he was a rapist. He
was thereafter taken to Wellington
prison where he was also sodomised throughout his stay there until he
was released. All
the episodes would happen in full view of
other inmates. No one intervened. He did report his being
sodomised to one
lady correctional service warder who did nothing
about the report. He never told anyone else about his ordeal,
not even the
magistrate. He never received counselling, his
relative promised to arrange it for him but that has not yet
materialised.
[6]
On his first appearance the magistrate asked if he needed a legal
representative provided by the state,
to which he answered in the
affirmative. The matter was postponed for that reason. He
obtained legal aid representation,
but eventually secured bail when
his family had engaged his current legal representative, on private
instructions. At the
second appearance the legal aid
representative advised him that he would not be admitted to bail
because he was charged of rape.
The attorney stated that the
matter should just proceed to trial when the magistrate asked about
his admission to bail.
[7]
He felt very bad about being labelled a rapist and being sodomised.
People still do not accept
him in his community. He went up to
standard two at school. He lives on odd jobs of chopping wood
and building.
People are no longer keen on engaging him.
He also lost trust in fellow men because of his experience in
prison.
Women reject him because they say he is a rapist.
[8]
Mr Mtokwana, counsel for the plaintiff submitted that when the
liability for the detention was conceded
by the defendant, it was in
respect of the entire period until his release. In the
particulars of claim it was averred that
on 27 July 2013, at central
police station, the central police members of SAPS wrongfully and
unlawfully detained the plaintiff,
without any just cause. The
plaintiff was detained from 27 July 2013, he appeared in court on 29
July 2013, facing a charge
of rape and was granted bail in February
2014.
[9]
From the aforegoing, it can hardly be said the plaintiff pleaded that
the extended detention was at
the instance of the police. In
evidence it transpired that the pleaded detention at the central
police station by members
from central police station ended on 29
July 2013. After he came back from court he was detained at
Wellington prison.
Evidence established that he was remanded in
custody in order to obtain legal representation.
[10]
The defendant in its plea had denied that the detention was wrongful
and unlawful, he averred that the plaintiff
was arrested for a
schedule 6 offence, he therefore would not readily be admitted to
bail. When the concession of the liability
was made, it was not
specified as to whether it related to the entire period or the period
prior the first court appearance.
[11] Mr
Melane, counsel for the defendant on the other hand submitted that
after the first appearance the plaintiff
was detained at the instance
of the court.
The
plaintiff was brought to court by the police within 48 hours of his
arrest in compliance with sections 50(1)(c) (ii) of the
CPA and 25
(1)(d) of the Constitution of the Republic of South Africa, Act 108
of 1996. He was not released on bail because
he was facing a
schedule 6 offence, the rape of a 6 year old child.
[12]
The issue therefore is whether in the determination of quantum, the
plaintiff is entitled to compensation by the
defendant for the entire
period of detention or the unlawful arrest by the police ceased when
the magistrate ordered further detention,
after the first
appearance. Therefore, the order rendered that further
detention lawful.
[13]
Section 60 (ll)(a) of the CPA provides that where an accused is
charged with an offence referred to in schedule
6, the court shall
order that the accused be detained in custody until he is dealt with
in accordance with the law, unless the
accused, having been given an
opportunity to do so, adduces evidence which satisfies the court that
exceptional circumstances exist
which in the interest of justice
permit his or her release.
[14]
According to his evidence, at the first appearance, the plaintiff was
remanded in custody in order to secure legal
representation. On
the second appearance, despite the magistrate enquiring about the
plaintiff’s admission to bail,
his legal aid representative was
not keen on making the bail application. He was of the view
that the plaintiff would not
be successful and be admitted to bail
because of the nature of the charge he faced. The
representative considered it best
to just proceed with the trial.
Thereafter, there were several remands until the legal representative
instructed by his family
secured his release on bail.
[15]
I have had regard to the discussion about the issue of lawfulness of
detention after the first appearance in
De
Klerk v Minister of Police
2020 (1)
SACR 1
(CC) at paragraph 38 to 45. The facts as adduced by the
plaintiff both in his particulars of claim and in oral evidence are
scanty relating to his continued detention after each of his court
appearances. However, I have reason to accept that, even
when
the magistrate raised the issue of bail, the legal representative did
not take the opportunity and apply that the plaintiff
be admitted to
bail. Nowhere, is it averred that the police officers who
arrested the plaintiff had anything to do with the
plaintiff’s
further remands in custody.
[16]
In my view, in the circumstances of this case, the defendant cannot
be held liable for the plaintiff’s further
detention. His
further detention was at the instance of the order of court, after
there had not been an attempt to have him
admitted to bail in terms
of section 69(II)(a) of the CPA.
[17]
The quantum of the plaintiff’s detention therefore relates to
the period from 27 July 2013 to 29 July 2013
when he first appeared
in court. Mr Melane submitted that the court should not
consider the treatment the plaintiff was subjected
to by his fellow
inmates, including sodomy. He submitted that such was not
pleaded in the plaintiff’s particulars of
claim.
[18]
I am unable to agree with Mr Melane in that regard. The
plaintiff pleaded the unlawful detention at central
police station
from 27 July 2013 until he appeared in court. He however,
erroneously made reference to 28 July 2013 instead
of 29 July 2013,
in the particulars of claim. The manner the arrest was affected
and the conditions during detention form
part of his pleaded case
under unlawful arrest and unlawful detention. It is in oral
evidence that he explained the specific
experiences. In
Rahim
and 14
Others
v Minister of Home Affairs
(4) SA 433
(SCA) at paragraph 27 it was stated:
‘
the
deprivation of liability 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 ploy 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 liability the amount of satisfaction is
calculated by the court
ex aequo et
bono
.
Inter
alia
the following factors are
relevant:
‘
27.1
circumstances under which the deprivation of liability took place;
27.2
the conduct of the defendants; and
27.3
the nature and duration of deprivation …’
[19]
In
Olga v Minister of Safety and
Security
2008 JDRJ582E paragraph 6 (ECD
case number 608/207) Jones J remarked:
‘
In
modern South Africa a just award for damages for wrongful arrest and
detention should express the importance of the constitutional
right
to individual freedom, and it should properly take into account the
facts of the case, the personal circumstances of the
victim and the
nature, extent and degree affront to his dignity and his sense of
worth, These considerations should be tempered
with restraint
and proper regard to the value of money to avoid the motion of an
extravagant distribution of wealth from what Holmes
J called the
‘“horn of plenty” at the expense of the defendant’.
[20]
The plaintiff claimed a total sum of R450 000.00 for each head of his
damages, unlawful arrest and unlawful detention.
With regard to
assessment of damages in
Minister of
Safety v Tyulu
2009 (5) SA 85
(SCA)
paragraph 26 the court stated:
‘
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).’
[21]
With regard to arrest the plaintiff stated that he was grabbed,
handcuffed and told he had raped. He was
bleeding from the
assault and books were put on his penis whilst the vehicle was driven
in an inconsiderable manner, causing him
to bump from side to side.
He was shouted by a police woman at the police station saying he was
a rapist who raped children
and had AIDS. The false allegation
of rape caused him to be raped anally throughout his stay at central
police station. He
attended court with soiled pants from
the rapes. The cell conditions were horrible. He lost
customers as a result of
the allegations. He lost trust in
fellow men and women do not like him.
[22]
The court could not get assistance of a medical or psychological
opinion to be able to assess the damage caused
by the experience the
plaintiff had in prison. However, he was clearly still very
troubled when he testified about experience,
he broke down more than
once during his testimony.
[23]
In the assessment of damages, previous awards are usually helpful in
order to arrive at a fair compensation.
In
Minister
of Safety and Security v
Seymour
(295/05)
[2006] ZASCA 71
; [2006] SCA 67 (RSA)
[2007] 1 All SA 558
(SCA) (30
May 2006) Nugent JA cautioned:
‘
the
assessment of awards of general damages with reference to awards made
in previous cases is fraught with difficulty. The
facts of a
particular case need to be looked at as a whole and few cases are
directly comparable. They are a useful guide
to what other
courts have considered to be appropriate but they have no higher
value than that’.
[24]
The defendant after submitting a list of previous awards suggested
that a sum of R30 000.00 a day would be a fair
award in the
circumstances of this case. The Constitutional Court in August
2019 in
De Klerk v Minister of Police
awarded a sum of R300
000.00 for eight (8) days. After the complainant had
withdrawn the charge. In
Mgele v Minister of Police and
Others
1257/2011 [2015] ZAECMC 70 (6 October 2015) in respect of
detention for four (4) days in cold, smelly cells where the plaintiff
was bitten by lice, he was awarded R150 000.00. The court was
of the view that high amount of damages was justified.
The
police had stolen food from the plaintiff and consumed his milk in
his presence. He was tortured, over and above the
conditions in
the cells.
[25]
In the circumstances of this case, I am of the view that a globular
amount in the sum of R340 000.00 is fair and
reasonable taking into
the account the ill-treatment during arrest and the humiliation the
plaintiff suffered throughout the period
of detention.
In
the result,
1.
The
defendant is hereby ordered to pay the plaintiff a sum of R340 000.00
as damages for wrongful arrest and detention.
2.
The
defendant shall pay interest at the legal rate on the said amount
from fourteen (14) days from the date of judgment to the date
of
payment.
3.
The
defendant is hereby ordered to pay costs of cation.
4.
The
defendant shall pay interest at the legal rate from fourteen (14)
days from the date of taxation to the date of payment.
_____________________________
B MAJIKI
JUDGE
OF THE HIGH COURT
Counsel
for the plaintiff
:
Mr Mtokwana
Instructed by
: Messrs M Velembo
Attorneys Inc.
No. 50
Elliot Street
Old
ECDC Building
MTHATHA
Counsel
for the defendant :
Mr Melane
Instructed by
:
The Office of the State Attorney
No. 94
Sission Street
Broadcast
House
Fortgale
MTHATHA