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[2019] ZAGPPHC 440
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Mokiyi v Minister of Police and Another (569355/16) [2019] ZAGPPHC 440 (12 August 2019)
IN THE NORTH GAUTENG HIGH
COURT, PRETORIA
[REPUBLIC OF SOUTH AFRICA]
CASE
NUMBER: 569355/16
12/8/2019
In
the matter between:
MOKITI
EVENY
PLAINTIFF
AND
MINISTER
OF POLICE
1
ST
DEFENDANT
AMOS
SIZWE HLATSHWAYO
2
ND
DEFENDANT
JUDGMENT
MAVUNDLA. J.
[1]
The
plaintiff a 29-year-old adult male claimed from the defendants
damages he suffered as the result of his unlawful arrest, assault
on
6 June 2015 and detention for 31/2 before he appeared in court and
then detained for another period of 21 days before he was
released.
He claimed the following :
1.1
unlawful arrest, detention and further detention
R1 275 000. 00
1.2
assault
R500 000. 00
1.3
future medical
expenses
R150 000. 00
1.4
emotional
shock and psychological stress and trauma
R200 000. 00
4.5
past loss of
income
R
21000. 00
4.6
future loss of
income
R200
000. 00
4.7
general
damages
R600 000. 00
Total
R 2 946 000. 00
[2]
The
question of liability was disposed of in the unopposed motion roll
before Kubushi J who granted the following order:
"1
The 1
st
defendant is ordered to pay to the plaintiff the
proven or agreed damages in respect of the claim for unlawful arrest
only;
2.
Merits
and quantum are separate, and quantum is postponed
sine
die;
and
3.
Costs
of this application."
[3]
The
plaintiff subsequently brought an application for default judgment on
the quantum.
[4]
The
plaintiff testified before Kubushi J in his default application. The
Court founds as follows:
"[8]
Although the evidence of the plaintiff indicated that he was
assaulted by the police this,
however, was not his case on the
papers. He did not make a case for assault in his particulars of
claim and he did not apply for
the amendment of the particulars of
claim to include a claim for assault. As such this claim even though
proven cannot be entertained.
[9]
It is not clear from the evidence led by the plaintiff what actually
happened when
he appeared in court on Tuesday, that is, whether he
was remanded in custody because bail was not set or whether he could
not pay
bail. It is not clear whether between 9 June 2015 when he
first appeared in court and 15 June 2015 when he was released he made
any other appearance in court. But defendant cannot be held liable
for any of the time spent in detention after the first appearance.
The said period cannot be regarded as unlawful since he was detained
in terms of an order of court which made the detention lawful.
If it
was the plaintiff's case that this period was unlawful as well, he
should have brought a claim against the National Director
of Public
Prosecutions and / or the magistrate who appeared over the matter."
[5]
Regard being had to findings by Kubushi J, this court can therefore
not entertain
the plaintiffs case in respect of the alleged assault.
[6]
The plaintiff's counsel in his heads of argument stated that the
claim for loss of
earnings is abandoned. Plaintiff persists with his
general damages claim and future medical expenses for psychological
counselling
in respect of his unlawful arrest. In this regard it was
pointed out that the plaintiff filed a report from a clinical
psychologist
Mark Southwood. It is opined in this report that:
6.1
Mr Mokiti has an elevated level of
anxiety at present. This implies that placed into certain situation
he would be more prone to
being worried about the outcome. While it
is not clear when the onset of this might have been it is certainly
something that could
relate to what he has experienced.
6.2
Mr Mokiti may benefit from some
counselling to deal with what he went through especially in relation
to his stress and anxiety.
The therapy of between 10 to 20 sessions
is recommended.
[7]
I find the clinical report of no value at all. The report is not
definitive as to
the source of the plaintiff's anxiety. It cannot
therefore be determined with precision that the source is from his
arrest and
detention. Neither can it be determined what the
recommended sessions for therapy would costs. In the circumstances, I
find that
the plaintiff has failed to prove his claim for future
medical expenses and emotional shock and psychological stress and
trauma.
[8]
The Supreme Court of Appeal held as follows in
Minister
of Safety and Security v Tyulu:
[1]
‘
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) at 325 para 17;
Rudolph and
Others v Minister of Safety and Security and Another
2009
(5) SA 94
(SCA) ([2009] ZASCA 39) paras 26-29).'
Factors that can play a role in
the assessment of damages
[9]
The
authors of Visser & Potgieter
law
of Damages
have extracted from South
African case law the following factors which can play a role in the
assessment of damages:
[2]
'In deprivation of liberty the
amount of satisfaction is in the discretion of the court and
calculated ex aequo
et bona.
Factors which can play a role are
the circumstances under which the deprivation of liberty took place;
the presence or absence of
improper motive or 'malice' on the part of
the defendant; the harsh conduct of the defendants; the duration and
nature (e.g. solitary
confinement or humiliating nature) of the
deprivation of liberty; the status, standing, age, health and
disability of the plaintiff;
the extent of the publicity given to the
deprivation of liberty; the presence or absence of an apology or
satisfactory explanation
of the events by the defendant; awards in
previous comparable cases; the fact that in addition to physical
freedom, other personality
interests such as honour and good name as
well as constitutionally protected fundamental rights have been
infringed; the high value
of the right to physical liberty; the
effects of inflation; the fact that the plaintiff contributed to his
or her misfortune; the
effect an award may have on the public purse;
and, according to some, the view that the
actio iniuriarum
also
has a punitive function."
[10]
In
respect of the alleged assault, plaintiff testified before Kubushi J
that: "One soldier tripped him and he fell and one
of the police
members kicked him with booted feet. They ordered him to lie down and
ordered his co-worker and brother to come out
of the motor vehicle.
they searched the motor vehicle and then ordered him to go. He
informed them that he was going to lay a charge
of assault against
the policeman who kicked him. One of them said he talks too much and
they assaulted him further."
[11]
In the report of Southwood it is stated,
inter alia;"
11.1
"It does not appear to have
suffered any neurological damage..."
11.2
'Eveny, was taken from his vehicle and
police started beating him with their open hands and fists. When he
asked why their cars
were searched he was told not to ask so many
questions and he was beaten some more."
[12]
There
are inconsistencies in the version of the plaintiff before Kubushi J
and what he told Southwood, the clinical psychologist.
12.1
before Kubushi J: the police members
kicked him with booted feet
12.2
to Southwood: police started beating him
with their open hands and fists
12.3
before Kubushi J: One of them said he
talks too much and they assaulted him further."
12.4
to Southwood: he was told not to ask so
many questions and he was beaten some more."
Save for being beaten further or
some more, the versions do not tally. Besides, it is not clear what
the extent and gravity of the
assault was. One would have expected
the plaintiff to have been much open before Kubushi J and Southwood
with regard to the alleged
further assault meted to him. It needs to
be borne in mind that the
onus
of proving assault and the
nature thereof lies with the plaintiff. In my view he has not
acquitted himself in this regard and as
such his claim for the
alleged assault must fail, and I find as such.
[13]
With regard to the alleged future loss
of income, the clinical psychologist opined that: the plaintiff:"...
does not appear
to have suffered any neurological damage..."
That being the position, I am unable to find on what basis is this
claim of future
loss of earnings is predicated. I therefore find that
this claim too must fail.
[14]
Of the plaintiff's capita claims only
two are remaining:
14.1
unlawful arrest, detention and further
detention (15) R1 275 000. 00
14.2
general damages
R600 000. 00
14.3
It needs noting that the plaintiff was
arrested on 6 June 2015 Saturday round about 9:50. Kubushusi J has
correctly found that the
plaintiff's subsequent detention after he
appeared in court was not unlawful and the defendant cannot be held
liable in that regard.
In my view, in all probabilities the plaintiff
must have appeared in court on 8 Monday, within the 48 hours of
arrest and would
have been further remanded in custody. I therefore
find that the plaintiff was at the most unlawfully detained for two
and a half
days, from Saturday until Monday.
[15]
According to the Kubushi J judgment, the plaintiff: "slept on a
mat on the floor shared with other
five inmates. As he came last in
the cell he had to sleep on the floor and it was very cold. He did
not bath all the time he was
there. There was no water. They were
brought cold water in a bucket for drinking. The toilet was out of
order and they had to use
water from the bucket to flush it."
[16] In
Minister of
Safety and Security
vs
Seymore
[3]
,
Nugent J A
stated at paragraph 17:
‘
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 area
useful guide to what other
courts have considered to be appropriate
but they have no higher value than that.’
[17]
In
Mandleni
v Minister of Police
[4]
,
Hellens AJ observed as follows in
para [13]:
"In
Masisi v Minister of
Safety and Security
2011 (2) SACR 262
Makgoka J very wisely In my
view described the purpose of an award of general damages in the
context of a matter such as the present
as a process in which one
seeks to compensate a claimant for deprivation of personal liberty
and freedom and the attendant mental
anguish and distress. The right
to liberty is an individual's most cherished right, and one of the
foundational values giving inspiration
to an ethos premised on
freedom, dignity, honour and security. Its unlawful invasion
therefore struck at the very fundament of
such ethos. Those with
authority to curtail that right had to do so with the greatest of
circumspection, and sparingly. Where members
of the Police
transgressed in that regard, the victim of the abuse was entitled to
be compensated in full measure for any humiliation
and dignity which
resulted. To this may be added that where an arrest was malicious,
the Plaintiff was entitled to a higher amount
of damages than would
be awarded, absent malice.'
[18]
In
awarding compensation, the Court must strive to balance the interest
of both the claimant as well as the defendant and as stated
in
Pitt
v Economic Insurance Co ltd
[5]
cited with approval by the
Constitutional Court in
De Jongh v Du
Pisanie NO
[6]
,
the Court held: "(T)he Court
must take care to see that its award is fair to both sides--it must
give
just
compensation to the plaintiff, but it must not pour out largesse from
the horn of plenty at the defendant's expense."
[19]
In
the matter of
Minister of Safety and
Security v Seymour
[7]
where the arrestee was unlawfully
arrested and detained for 5 days, the Supreme Court of Appeal reduced
the award of R500 000 to
R90 000. The last mentioned amount must have
appreciated by now.
[20]
In
the matter of
De Klerk v Minister of
Police
[8]
an award of R300 000. 00 was
considered to be appropriate for a wrongful and detention for 8
(eight) days, which in my view, approximate
an amount of R37, 500. 00
per day.
In casu
for
2.5 days the amount would approximate an amount of R93,700. 00.
Accepting that the said amount would have appreciated in value
by
now, I am of the view that an amount of R150 000. 00 in the
circumstances of this case would be a fair and reasonable
solatum
for the plaintiff.
[21] In the result the
following order is made:
1.
That
the defendant is ordered to pay the plaintiff an amount of R150 000.
00 (ONE HUNDRED AND FIFTY THOUSAND RAND) together with
interest
thereon from date of this order, calculated at the applicable rate
per annum to date of payment;
2.
That
the defendant is ordered to pay the plaintiff's 100% costs to date on
party and party scale as taxed or agreed.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE OF JUDGMENT
:12 / 08 / /2019
PLAINTIFF'S ADV
: ADV. MC.H. BARDENHORST
INSTRUCTED BY
: MASHISHI
ATTORNEYS
[1]
Minister of Safety and Security v Tyulu
2009 (5) SA 85
(SCA)
paragraph 26 at 930-F.
[2]
Visser & Potgieter Law of Damages Third Edition, pages 545-548.
This list of factors has been referred to with approval in
Ntshingana v Minister of Safety and Security (unreported judgment
dated 14 October 2003 under Eastern Cape Division case number
200
l/1639) and Phasha v Minister of Police (unreported judgment by
Epstein AJ dated 23 November 2012 under South Gauteng High
Court
case number 2011/25524).
[3]
2006 (6) SA 320 (SCA)
[4]
an unreported judgement of this division dated 24 April 2017 by
Hellens AJ under case number 37539 /14
[5]
1957 (3) SA 284
(D) at 287E-F.
[6]
2005 (5) SA 457
CC at 475E.
[7]
2006 (6) SAS 320 (SCA).
[8]
2018 (2) SACR 28
(SCA).