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[2019] ZAGPPHC 69
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Lebelo v Minister of Police (25300/2014) [2019] ZAGPPHC 69 (28 February 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT
REPORTABLE
(2)
NOT
OF INTEREST TO OTHER JUDGES
(3)
REVISED.
Case number: 25300/2014
Date: 28/2/2019
In
the matter between:
SELLO
MOSES
LEBELO
PLAINTIFF
Vs
MINISTER
OF
POLICE
DEFENDANT
JUDGMENT
TOLMAY, J:
[1]
The arrest and detention of the
Plaintiff at the hands of officers of the SAPS has already been found
by the court to have been
unlawful. It is not in issue that the
defendant is liable for the consequential damages suffered by the
Plaintiff. It is now common
cause that the Plaintiff was unlawfully
arrested on 29May 2013. The Plaintiff was detained thereafter until 6
September 2013 (15
weeks or 101 days). The Plaintiff seeks general
damages for such unlawful arrest and detention.
[2]
The Defendant sought to limit the period
of detention for which it is liable to a period from the arrest until
the day that bail
was set which the Defendant claimed was 15 days. It
seems however to be 16 days calculated from 29 May 2013 to 13 June
2013.
[3]
Despite the granting bail, the Plaintiff
was unable to pay the amount and as a result remained in custody
until 6 September 2013.
This period amounted to 15 weeks or 101 days,
as previously stated.
[4]
The Plaintiff initially claimed total
amount of R550 000-00 as damages, at the trial an amendment was
sought to increase the
amount claimed. The amendment was initially
opposed, but Counsel, after consultation with his attorney, left it
in the Court’s
hands. The amendment was granted. Mr Geach (SC)
in his heads of argument conceded that an amount of R950 000-00
would be fair,
despite the amendment sought, which far exceeded this
amount. Defendant was of the view that an amount of ± R40
000-00 would
be fair compensation.
[5]
It is important to note some of the
facts that the Court, hearing the merits found. In my view these
facts should be considered
when determining an appropriate award. In
this regard note should be taken of the following which was found by
the Court.
[6]
Rabie J
[1]
said the following:
[19] In order
to establish whether Constable Moloto could have entertained
a
reasonable suspicion that the
plaintiff had committed the crime of theft it is necessary to analyse
the information he had at his
disposal prior to the arrest of the
plaintiff.
[20]
The
information he obtained from the statement of the complainant was
that she had been told by two alleged eyewitnesses, namely
Mr
Ramatsetse and Mr Swart, that two male persons opened the boot of her
car; took out
a
silver
laptop; threatened the two eyewitnesses, and walked away. According
to the eyewitnesses the thieves were
a
certain Jazzman and a certain Molefe
Botha.
[21]
However,
according to the written statements of the two eyewitnesses taken
down by Constable Moloto, quite a different version was
given.
According to their statements it was only Jazzman who opened the boot
of the vehicle. There
was
no
mention of a second person opening the vehicle or even in the
proximity of the vehicle. Furthermore it was clear that Jazzman
then
moved away from the vehicle towards the South. At that point the
laptop was not visible as it was inside a bag carried by
Jazzman.
Then, at some point, a person known
as
Molefe followed Jazzman, according to
one of the eyewitnesses, or joined Jazzman, according to the other
eyewitness.
[22]
There
were thus significant differences in the versions of the eyewitnesses
given to Constable Moloto and to the complainant, Mrs
Maluleke,
respectively. Furthermore and in any event, on none of the versions,
the person known to the eyewitnesses as Molefe,
had, on the face of
it, anything to do with the theft of the laptop. Nothing was said or
reported to have been said, by the eyewitnesses,
that could implicate
the person known as Molefe with the theft committed by Jazzman.
[23]
Furthermore,
there was no evidence whatsoever to suggest that the person known as
Molefe was in fact the plaintiff. According to
Constable Moloto his
informer had mentioned the name "Ghost"
as
the person who had committed
some
or other crime at that particular
corner."
[7]
These facts in my view illustrate that
there was no doubt that no lawful basis for the arrest of the
Plaintiff existed. The facts
found by the Court in my view,
illustrate an abuse by the Defendant of its powers, with no concern
for the rights of the Plaintiff.
[8]
Before this Court Plaintiff testified
that he was born on 13 August 1981. He is not married but has three
children, aged 12, 7 and
6 years respectively. When he was arrested
he was not employed. He had no money at all. He testified that no
enquiries were ever
made to determine whether he could afford the R1
000-00 bail set. When he could not pay he was told that he had "to
go down",
meaning that his detention would continue. He also
testified that his father was unemployed and his mother was a
domestic worker
and supported 6 dependants. No one in his family
could assist him with the bail money, and as a result he remained in
custody until
6 September 2013. No charges were ever brought against
the Plaintiff.
[9]
He testified that the conditions in jail
were bad. Some inmates tried to sodomise him and he feared for his
life. He tried to report
this to a warden, but was hit with a baton
on the back by the warden. He said he feared for his life from both
inmates and wardens.
Although nobody physically prevented him from
reporting this, he felt that it was not safe to do so.
[10] He testified that
once, when he was trying to call his mother, he was threatened by
another inrnat6
with a broken bottle attached to a piece of cloth. He
said that he was throttled. Apparently his attacker insisted that
Plaintiff
should pay him to stay safe. All he had was airtime that
his father brought him, he was forced to hand this over to his
attackers
[11] He said he
suffered from tuberculosis before he was incarcerated and his health
deteriorated while
he was in jail. Someone fortunately brought his
out-patient TB card and after presenting it, he was treated for
tuberculosis at
the clinic .
[12]
It was clear from the evidence that the
Plaintiff suffered a great deal during his incarceration and felt
helpless and fearful.
It is also apparent that he did not have the
financial resources or ability to get the necessary assistance to
ensure that his
rights were protected.
[13]
The first issue to be determined was
whether the period of incarceration should be calculated based on the
period from date of arrest
until the date that bail was set.
[14]
Counsel for the Plaintiff argued that it
is clear that the granting of bail, even in the rather modest amount,
was illusionary,
due to Plaintiff's impecuniosity and his financial
inability to pay bail. Granting bail in an amount that was beyond
Plaintiff's
means and resources, effectively nullified the granting
thereof.
[2]
In my view, the Defendant's liability cannot simply cease on the date
that bail was set. Furthermore, the state could and should
have
considered consenting to release on a warning. Especially in the
light of the absence of reliable evidence against the Plaintiff.
The
Plaintiff's detention persisted until 6 September 2013 and the
Plaintiff should accordingly be compensated for the whole of
the
period that he was incarcerated.
[15]
For purposes of quantum it may therefore
be accepted as being common cause that the Plaintiff was unlawfully
arrested on 29 May
2013 and unlawfully detained from 29 May 2013
until 6 September 2013.
[16]
It is trite that the determination of
general damages falls within the discretion of the Court.
[3]
In the process of determination one may consider the amounts awarded
in other cases, but ultimately each case will be determined
on its
own facts.
[17]
In
Areff
v Minister van Polisie
[4]
a 41-year-old businessman who was
arrested and detained for about two hours was awarded R1 000.00.
(Present value R 47 000.00)
[5]
.
[18]
In Minister of Safety and Security v
Scott and Another
[6]
a professional hunter awaiting the arrival of hunters from America,
was arrested just after 23h00 and transported to the police
station
where he was advised he was being arrested for being in possession of
a firearm, while under the influence of alcohol,
after a typical
brawl in a bar. He spent the night in a police cell and was released
the following morning when the charges against
him were withdrawn. An
appropriate award was held to be the sum of R30 000. (Present value
R47 000)
[7]
.
[19]
In
Van
Rensburg v City of Johannesburg
[8]
the 74-year-old plaintiff was
awarded R 75 000.00 for damages for his wrongful detention in a
police cell for an afternoon consequent
upon his lawful arrest at a
roadblock for failure to appear at court on several traffic
violations. (Present value R 150 000.00)
[9]
.
[20]
In Olivier v Minister of Safety and
Security
[10]
the detention was of relatively short duration, comprising some five
or six hours in all, and the plaintiff a senior police officer
was
not placed in a cell or handcuffed. The unlawful arrest however took
place in full view of colleagues. The plaintiff's office
and home
were searched, latter in presence of his wife and children and he had
to appear in court three times as an accused. A
sum of R50 000 was
held to be fair to all parties. (Present value R 90 000.00)
[11]
.
[21]
A Police Inspector based in Umthatha,
but on work-related business in Gauteng, was unlawfully kept in
wrongful detention (although
his arrest for malicious damage to
property had been lawful) and incarcerated in the police cells with
'suspected rapists and robbers'
from 22h00 until the next morning. An
amount of R30 000 was awarded. (Present day value, R50 000-00)
[12]
.
[22]
A Magistrate, was wrongfully arrested
for being drunk in public and detained. He was detained for a few
hours only. The following
considerations were deemed relevant, the
age of the respondent, the circumstances of his arrest and its nature
and short duration,
his social and professional standing, and the
fact that he was arrested for an improper motive. An amount of R15
000 in damages
in present day value was awarded. (Present day value
R30 000-00)
[13]
.
[23]
In
Minister
of Safety and Security v Seymour
[14]
a 63-year-old plaintiff was
unlawfully arrested and detained for five days. Only one day was
really spent in prison, the remainder
of the time he was
hospitalised. He had suffered no degradation beyond that inherent in
being arrested and detained was awarded
R90 000 on appeal, the SCA
referred to awards made in other matters as follows:
"The following awards
a/so
provide some indication of how other
courts have viewed incursions upon personal liberty (they are by no
means exhaustive of the
cases that have confronted the issue). In
Solomon v Visser and Another,
[1972 (2)
SA
327
(C)J
a
48-year-old businessman who
was
detained for seven days, first in
a
police cell and then in a prison,
was
awarded R4 000 (R136 000). In
Areff
v Minister van Polisie,
[supra],
this court awarded a 41- year-old businessman who
was
arrested and detained for about two
hours R1 000 [R47 000]. In
Liu
Quin Ping v Akani Egoli (Pty) Ltd t/a Gold Reef City Casino,
[supra]
a
businessman
who
was
unlawfully
detained for about three hours
was
awarded R12 000 [R 33 200].
In
MANASE v MINISTER OF SAFETY AND SECURITY AND ANOTHER
[2003
(1)
SA
567
(Ck)], in which
a
65-year-old
businessman
was
unlawfully
detained for 49 days, incarcerated at times with criminals, the
sum
of R90 000 [present value R224 000:
KOCH QUANTUM YEARBOOK 2019 p17]
was
awarded. In
Seria
v Minister of Safety and Security and Others
[2005.
(5)
SA
130
(C)J, a professional man who was arrested and detained in a police
cell for about 24 hours, for
a
time
with a drug addict,
was
awarded
R50 000 (R52 000)."
[24]
In
Naidoo
v Minister of Police
[15]
the appellant had attended at the
Lenasia South Police Station to lay a charge of assault against her
former husband who, during
a scuffle between them, had severely
assaulted the appellant and pushed her, causing her to fall to the
kitchen floor, hitting
her head against a door. She suffered a
concussion and was admitted to hospital, treated overnight and
discharged the next day.
On 14 April 2010 she went to report the
assault and laid a criminal charge of domestic violence. At the
station, she received no
assistance.
"What
followed thereafter was a dreadful series of traumatic, humiliating,
de-humanizing and flagrant violations of the appellant's
right to
dignity, freedom, security of her person and bodily integrity.
Instead of being assisted, she was arrested, ostensibly
pursuant to a
charge of assault laid against her by Naidoo at the instigation of an
Inspector Molefe, and detained overnight. The
next day, when she was
being taken to the Vereeniging Magistrates" Court, she
was
assaulted by
a
police officer who threw her into the
rear of
a
police
van. She suffered physical injury comprising soft tissue injuries in
the right arm and right leg with severe swelling. In
court, the
charges against her were withdrawn by the prosecutor".
The
SCA awarded damages in the amount of R70 000 for unlawful arrest and
detention.
[25]
A perusal of the authorities reveals
that in all these instances the incarceration was for shorter periods
of time. In this instance,
however the accused was incarcerated for
101 days.
[26]
The protection of personal liberty has a
long history in common law and of course is now entrenched in our law
by the guaranteed
right of everyone in section 12(1)(a) of the
Constitution to freedom and security of the person, including the
right not to be
deprived of freedom arbitrarily or without just
cause.
[16]
From Roman-law times the right of liberty and freedom of a free man
was recognised as being a right that must be protected.
[17]
The human rights enshrined in our Constitution are all-important. The
police necessarily have extensive powers and the Courts must
be
astute to stand resolute against any abuse thereof. The courts should
protect the right to freedom.
[18]
[27]
I considered the duration of the
incarceration, as well as the facts that led lo initial arrest, and
the trauma that the Plaintiff
obviously suffered while incarcerated.
[28]
I am of the view that our Court's should
be careful not to value the dignity and right of freedom of a poor,
unemployed and uneducated
person less than those who are more
fortunate. If Courts truly value the equality and dignity of human
beings they will be seen
not only to acknowledge the suffering of
vulnerable members of society , but will also proceed to protect the
rights and dignity
of vulnerable individuals. On must keep in mind
that those who do not have the necessary resources, very often also
do not have
the knowledge and ability to fend for themselves. They
are often vulnerable and left at the mercy of a system that very
often does
not provide the necessary support to enable them to fight
for their rights. Therefore the fact that someone does not have any
significant
social standing, should in my view, not lead to the award
of a lesser amount. If anything, as in this case, if a person’s
suffering has been exacerbated, because of a lack of resources, one
must consider this aspect in determining an appropriate award.
Obviously each case should be determined on its own facts.
[29]
Although damages should not be aimed at
enriching a litigant, but to offer
solatiums
[19]
,
one should be careful not to value
the loss of dignity and freedom as trivial. Taking into consideration
all the facts. I am of
the view that an amount of R500 000-00 is
reasonable and fair.
[30]
In the light of all the fact I am of the
view that an amount of R500 000- 00 is appropriate.
[31]
I make the following order:
1.
The Defendant is to pay an
amount of R500 000-00 to the Plaintiff for damage&.
2.
The Defendant is to pay
the costs of the Plaintiff, which costs shall include the costs of
two counsel.
R G TOLMAY
JUDGE OF THE HIGH COURT
DATE OF HEARING:
7 FEBRUARY 2019
DATE
OF JUDGMENT:
28 FEBRUARY 2019
ATTORNEY FOR PLAINTIFF: ZAMISA
SHISINGA ATTORNEYS
ADVOCATE FOR PLAINTIF"
ADV B GEACH (SC) D KEET
ATTORNEY FOR DEFENDANT: STATE ATTORNEY
ADVOCATE FOR DEFENDANT D MMATLOU
[1]
The unreported judgment in S M Lebelo vs The Minister of Police,
Case 25300/2017 delivered on 2 February 2018
[2]
S v MOHAMED
1977 (2) SA 531
(A) at 544H;
[3]
Minister of Safety & Security v Seymour 2006(6) SA 320 SCA par
11
[4]
1977(2) SA 900 (A) KOCH, QUANTUM YEARBOOK 2019 p6: present value R
47 000.00)
[5]
KOCH, QUANTUM YEARBOOK 2019 P 6
[6]
2014 (6) SA 1 (SCA)
[7]
KOCH, QUANTUM YEARBOOK 2019 p36
[8]
2009 (2) SA 101 (W)
[9]
KOCH, QUANTUM YEARBOOK 2019 p41
[10]
2008(2) SACR (W) p 387
[11]
KOCH, QUANTUM YEARBOOK 2019 p26
[12]
MVU V MINISTER OF SAFETY AND SECURITY AND ANOTHER
2009 (6) SA 82
(GSJ); KOCH, QUANTUM
YEARBOOK 2019 p24:
present value R 50 000.00)
[13]
MINISTER OF SAFETY AND SECURITY v TYULU
2009 (5) SA 85
(SCA): KOCH,
QUANTUM YEARBOOK 2019 p40: present value R 30 000.00);
[14]
2006 (6) SA 320 (SCA)
[15]
20431/2014) (20'15] ZASCA 152 (2 October 2015)
[16]
MINISTER OF HOME AFFAIRS v RAHIM AND OTHERS
2016 (3) SA 218
(CC) par
[27] at 228
[17]
COETZEE v NATIONAL COMMISIONER OF POLICE AND OTHERS
2011 (2) SA 227
(GNP) par [52] at 243
[18]
SEYMOUR v MINISTER OF SAFETY AND SECURITY 2006 (5) 495 (W) par [13]
at 500
[19]
Minister of Safety & Security Tyulu
[2009] 4 All SA 38
(SCA)