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2019
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[2019] ZALMPPHC 41
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Hlungwani v Minister of Police (HCA05/2018) [2019] ZALMPPHC 41 (23 August 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE NO: HCA05/2018
23/8/2019
In
the matter between:
MATIMU
HLUNGWANI
APPELLANT
and
MINISTER
OF POLICE
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This
appeal is about the quantum of damages arising out of the unlawful
arrest and assault on the Appellant by members of the South
African
Police Service (SAPS). The Magistrate's Court for the district of
Phalaborwa held at Phalaborwa made a finding on the merits
that the
Appellant was unlawfully arrested and assaulted by the Police and
made an order that the Respondent should pay a globular
amount of R
30 000.00 for both the unlawful arrest and assault. Aggrieved by the
Court a
quo's
order
in respect of the quantum of damages, the Appellant approaches this
Court on appeal against the Magistrate's judgment and
order made on
21 September 2017.
[2]
The
action instituted by the Appellant against the Respondent was
undefended in the Court a
quo
as
well as before us on appeal. In short, the allegations of unlawful
arrest and assault on the part of the Appellant remained uncontested
as the Defendant did not put up any version.
[3]
The
brief background to the incident is that:
3.1.
On
the 19 May 2015 at about 17H30 to 18H00 the Appellant was walking
along the road at Majeje, when he was stopped, questioned and
apprehended by two members of the South African Police Service
(SAPS). He was forced into a Nissan Hardbody motor vehicle that
the
policemen were travelling in. He was accused of knowing something
about certain firearms but was not given any opportunity
to give his
own explanation whether he had any knowledge of the firearms. He was
taken to a nearby bush near the R 40 Road between
Phalaborwa and
Hoedspruit where he was assaulted and questioned about the
whereabouts of the firearms he did not know.
3.2.
Upon
arrival at the bushes the Appellant's hands were tied with cable ties
and his feet tied with a rope. They then picked him up
and put him at
the back of the police van, where the rope hanging loose from his
feet was used to hang his feet on the steel bars
at the back of the
bakkie. His legs were hanging in the air while he was made to lie on
his back. While this was happening the
policemen continued to
question him about the whereabouts of the firearms. One of the men
went to another motor vehicle and returned
with a bag full of hard
clear plastic bags which were subsequently used to suffocate him.
While one person was suffocating him
the other would be sitting on
his back pressing him down.
3.3.
The
plastic bags would be changed at intervals when they got wet. They
continued assaulting him and made him feel pain all over
his body.
They took him to his residence at 22H00 to 23H00 where they searched
his house but could not find anything they were
looking for. After
they completed searching at his homestead he was assaulted again with
fists on his face. They took him back
to the bushes were the assault
and suffocation continued. The assault went on and on until the
Appellant involuntarily defecated.
3.4.
Subsequently
they stopped assaulting him, cut the rope on his legs and put him
back into the motor vehicle as he could not walk.
The cable ties were
removed from his writs and he was bleeding on his writs. They drove
him back to his homestead where he was
dropped off at about 3H00 or
4H00 at dawn.
3.5.
He
sustained injuries in the form of wounds as a result of the assault.
He felt pains on his legs and knees and had cuts and bruises
on his
writs. He was losing his breath because of the pain and injuries
sustained.
3.6.
The
Appellant was treated by a doctor at the hospital. A medical report
in the form of Form J88 was completed by a doctor at Maphutha
L
Malatji Hospital. The description of the injuries as noted on the J88
form is consistent with the manner in which he was assaulted.
[4]
It
is common cause that the Appellant was held up or detained by the
Police for a period of about S(five) hours while undergoing
the
aforesaid ordeal. The Appellant was never taken to a Police Station
or charged with any offence.
[5]
It
is clear that the Appellant's personal liberty including his right
not to be arbitrarily arrested without a lawful cause, the
right to
dignity and the right to his reputation had been violated by the
unlawful arrest and subsequent assault . Appropriate
damages should
be awarded.
[6]
The
members of the SAPS who are supposed to, amongst others, uphold the
law and individual human rights enshrined in the Constitution
of the
Republic of South Africa, 1996 unlawfully arrested the Appellant and
proceeded to assault him until he defecated. This is
humiliation of
the highest degree.
[7]
In
the Magistrate's Court the Appellant claimed damages in an amount of
R 100 000.00 for unlawful arrest and R 100 000.00 for assault.
The
Court
a quo
awarded
a globular amount of R 30 000.00; hence this appeal before us.
[8]
This
Court is called upon to determine a fair and reasonable amount due
and payable to the Appellant as compensation for the unlawful
arrest
and assault. Determining the monetary value for the infringements of
the Appellant's rights in the circumstances of this
case is not
dependant on simple mathematical or other scientific calculations.
Neither is case law very helpful in this regard.
However, case law
serves only as guidance.
In
Minister of
Safety and Security v Seymour [2007] 1 ALL SA 558 (SCA) at paragraph
17 Nugent JA said:
"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."
At page 326 paragraph 20, the
learned Judge continues:
"Money can never be more
than
a
crude
solatium for the deprivation of what in truth can never be restored
and there is no empirical measure for the loss."
[9]
Mr
Madzhie, Counsel for the Appellant, referred to and made copies
available to us of two unreported judgment of the Gauteng Division,
Pretoria dealing with quantum in respect of unlawful arrest and
assault. These are
Vincent Ngobeni v
Minister of Police, Case No. 49069/2013
handed
down on 9 February 2016 and
Solomon
Ranamani v Minister of Police, Case No. 57737/2016
dated
23 May 2016.
The two cases are comparable with
the present case and we have taken them into consideration in our
judgment.
[10]
In Liu Quin
Ping v Akani Egoli (Pty) Ltd t/a Gold Reef City Casino 2000(4) SA 68
(W),
a
businessman who was unlawfully detained for about three hours was
awarded R 12 000.00 (about R 20 000.00 in present monetary value)
In
Seria v Minister of Safety
and Security and Others
2005 (5) SA 130
(C),
a professional man
who was arrested and detained in a police cell for about 24 hours was
awarded R 50 000.00 (R 55 000.00).
In the aforementioned two cases
the damages were solely for arrest and detention. There was no claim
for assault like in the present
case.
[11]
The
Court a
quo
in
its consideration and assessment of the quantum referred to and
compared not less than twenty decided cases, including the Vincent
Ngobeni and Ranamani cases referred to in [7] above. Despite this,
the Court a
quo
still
misdirected itself in awarding a globular amount of R 30 000.00 for
both unlawful arrest and assault. This Court is at large
to interfere
with the Magistrate's discretion in the award of general damages.
[12]
In
the present case we take the following aspects or factors into
account in assessing damages payable to the Appellant:
12.1.
The severity of the assault and injuries
sustained;
12.2.
The manner or mode of assault on the
Appellant;
12.3.
The torturous manner of the assault on
the Appellant;
12.4.
The assault endured for a long period of
some hours;
12.5.
The Appellant had committed no offence;
12.6.
The aim of arrest was not to bring the
Appellant to justice but a mere torture;
12.7.
The Appellant deprived of his liberty
for about five hours;
12.8.
The assault was humiliating to a point
where the Appellant defecated, with his clothing on him.
[13]
Taking all the above factors into
consideration we are of the view that a fair and reasonable
compensation is the following:
13.1.
R 40 000.00 for unlawful arrest; and
13.2.
R 100 000.00 for assault.
[14]
Accordingly, the following order is
made:
1.
The appeal is upheld with costs.
2.
The order of the Court a
quo
is set aside and replaced with the
following Order .
2.1.
The
Defendant is ordered to pay the Plaintiff a total amount of R 140
000.00 for unlawful arrest and assault.
2.2.
Costs
of the action.
E
M MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO
DIVISION, POLOKWANE
I
agree
A LAMMINGA
ACTING JUDGE OF THE HIGH
COURT, LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
: 16 August 2019
Judgment
delivered on
: 23 August 2019
For
the Appellant
: Mr RN Madzhie
Instructed
by
: Mongwe Attorneys
c/o Podu Mamabolo Attorneys
For
the Respondent
: In Default