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[2019] ZAECMHC 9
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Mphindwa v Minister of Police (952/2016) [2019] ZAECMHC 9 (26 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION: MTHATHA)
Case
no: 952/2016
In
the matter between:
LUNGISANI
MPHINDWA
Plaintiff
and
MINISTER
OF
POLICE
Defendant
JUDGMENT
NDAMASE
AJ:
Introduction
[1]
The plaintiff, an adult male taxi operator, seeks damages against the
defendant, resulting from the
plaintiff’s alleged wrongful and
unlawful arrest and detention. The claim is premised on vicarious
liability, it being alleged
that the perpetrator of the alleged acts
was at the time employed by the defendant and had committed the
alleged unlawful acts
during the course and scope of employment with
the defendant.
The
pleadings
[2]
The particulars of claim attached to the summons dated 18 March 2016
(the first particulars), sets forth
the cause of action as being
damages suffered as a result of the wrongful and unlawful arrest and
detention of the plaintiff by
one Detective Constable Mthetheleli
Mvuyisi Nkomo (hereinafter referred to as
“
Nkomo
”
).
The arrest is reported to have happened without a warrant and in full
view of members of the public on 2 April 2015 at Mount
Fletcher Taxi
rank in Mount Fletcher. Consequent to his arrest by Nkomo, the
plaintiff alleges that he was taken to Mount Fletcher
police station
where he was detained for five (5) days until he appeared in court on
Tuesday 7 April 2015 where he was arraigned
on a charge of assault
with intent to do grievous bodily harm. He was released from
detention on 7 April 2015 when he was admitted
to bail. Accordingly,
he claims his detention was unlawful.
[3]
The plaintiff claims to have suffered damages amounting to R450
000.00, R350 000.00 whereof is
for wrongful and unlawful arrest
and detention and R100 000.00 for
contumelia.
[4]
In its defense, the defendant contends that the plaintiff was
detained and charged with assault with
intent to do grievous bodily
harm. It denied that the arrest and the subsequent detention were
unlawful and pleaded that the arrest
fully complied with laws
regulating arrest without a warrant as the arresting officer had
reasonable grounds to suspect the plaintiff
had committed an offence.
[5]
The plaintiff sought to amend the first particulars and, there being
no objection, the amended particulars
of claim was delivered on 28
February 2018 (
second particulars
).
The second particulars differs materially in style and particularity
in detail in relation to the allegations made in the first
particulars. The amendment includes a substitution of the plaintiff’s
residence from “
Magedla
Administrative Area in the district of Libode”,
with
“
Magedla Administrative Area,
Mount Fletcher
”
. The significant
amendment however relates to the head of damages claimed and the
total amount thereof having been revised to be
R600 000.00 made
up as follows:
[5.1]
R60
000.00 for unlawful arrest; and
[5.2]
R540
000.00 for unlawful and wrongful
detention which includes damages for discomfort, shock, injury to
dignity, deprivation of enjoyment
of amenities of life, insult to
person, humiliation, pain and suffering.
[6]
Notwithstanding the amendment to the plaintiff’s
particulars, the defendant did not file any amendment
to its original
plea and proceeded on the basis of its original plea to the first
particulars. However, at the commencement
of the proceedings,
counsel for the defendant moved an
impromptu
application from the Bar for the postponement of
the trial on the basis that he, shortly before the proceedings could
commence,
realized that the plaintiff had filed an amendment to his
particulars of claim and was therefore not in possession of the
revised
index to the pleadings incorporating the second particulars
together with the revised trial bundle. He further submitted that the
developments pertaining to the pleadings had not been brought to his
attention by those instructing him (the State Attorney). On
being
probed by the court he advised that he had been on brief since 5 May
2016. No substantive application was made and consequently,
the
postponement was refused and the matter was directed to proceed.
[7]
In refusing the postponement, the court took the view that a
postponement is an indulgence which a party
seeks from the court.
Based on the explanation given for the postponement, the court was
not convinced with the reasons furnished,
particularly when one has
regard to the fact that the plaintiff’s amendments were
effected and served upon the defendant’s
attorneys of record
some ten (10) months prior to the scheduled hearing date. In
addition, both parties’ legal representatives
had
attended a case flow management conference before a Judge to have the
matter certified ready for trial and on the basis of
such appearance,
the matter was indeed certified trial ready and a directive for the
allocation of a trial date issued by the presiding
Judge. The court
was therefore not inclined to entertain a postponement based on the
lack of preparedness by the defendant’s
counsel who had been
seized with the brief from 2016. For the above reasons, the
application for postponement suffered an ill fate,
hence it was
refused.
[8]
At the commencement of the proceedings, the defendant’s counsel
conceded that even though in terms
of rule 39 (13) of the Uniform
Rules of Court it was incumbent upon the plaintiff to adduce evidence
first, the matter had to proceed
in line with the parties’
agreement reached during the pre-trial conference and as recorded in
the pretrial minute, which
is that the defendant bore the duty to
begin and the onus to justify the lawfulness of both the arrest and
detention of the plaintiff.
The
Evidence:
[9]
The facts pertaining to the plaintiffs’ arrest are largely
common cause and in regard to the plaintiff’s
arrest may be
summarized as follows:
[9.1]
On the 29
th
March
2015, Moses Tumo Tsibuli (the complainant”), was involved in a
motor vehicle accident with another vehicle owned by
one Matanzima
Mhlaba (Mhlaba) and consequent thereto, a dispute ensued between the
complainant and Mhlaba leading to the assault
of the complainant by
Mhlaba and the community members of Jojweni location in Mount
Fletcher. As a result of the assault,
the complainant sustained
multiple wounds. As a result of the assault and the injuries
sustained, the complainant was admitted
to hospital on the same day
and released the next day on 30
th
March 2015. On the same day of his release, the
complainant opened a case of assault against Mhlaba and other persons
that had formed
part of a mob of Jojweni location in Mount Fletcher.
[9.2]
Two (2) days after the case had been opened, the complainant called
the investigating
officer, Nkomo, to inform him that one of the
people who assaulted him from amongst the mob was at Maclear
route taxi rank
and that he could see and recognize him and wanted to
point him out. After the telephone call, Nkomo set out and went to
meet with
the complainant and upon his arrival at the taxi rank, the
complainant pointed out the suspect, the plaintiff in these
proceedings.
[9.3]
Nkomo enquired from the complainant if he was indeed certain that the
man he was pointing
out was one of the assailants and the complainant
confirmed he was. The name of the suspect was at the time unknown to
both Nkomo
and the complainant.
[9.4]
After the pointing out Nkomo testified that
he introduced himself to the plaintiff, produced his
appointment card
and informed him who he was. Nkomo further testified that the
plaintiff cooperated with him and as a result of
this, acting without
a warrant to arrest the plaintiff, arrested and detained him in
police cells from the 2nd April until the
7
th
April 2015. On being probed further by the defence
counsel, Nkomo testified that when he received the call from the
complainant,
he had already been investigating the matter and had
looked at the J88 form as contained in the docket and had found that
the complainant
had sustained deep injuries and very serious wounds
on his head which injuries fell under Schedule 1. He testified that
prior to
the telephone call from the complainant he had attempted to
get in touch with one of the witnesses, one Mr Bidibidi, on the 1
st
April 2015, a day after the complaint was laid
with the police. Mr Bidibidi was however not available to immediately
make a statement
to the police but was only available to do so on the
21st April 2015, long after the plaintiff’s arrest. Further
explanation
given by Nkomo on the reasons for the immediate arrest of
the plaintiff without a warrant was that he relied on the assurances
given by the complainant about the identity of the plaintiff.
[9.5]
Under cross-examination Nkomo submitted that the
purpose of the arrest and detention of the plaintiff was to ensure
his appearance
in court
.
He
further stated that based on the conversation with the complainant
about the identity of the plaintiff and having observed the
J88 form
where he had noticed that there were about 3 wounds/lacerations in
the complainant’s head, he formed a view that
these wounds were
deep wounds and was accordingly satisfied he could effect the
arrest.
[9.6]
Further under cross examination, Nkomo readily conceded that he ought
to have interviewed at least Mr Bidibidi
prior to the arrest, but due
to his unavailability he relied on the complainant’s
reassurance that the plaintiff was one
of the assailants. He
explained that it was the injuries and deep wounds he observed from
the J88 form that influenced his decision
to arrest but conceded that
one of the injuries was a one (1) cm laceration deep. Having regard
to the above circumstances, Nkomo
testified that he saw no reason to
obtain a warrant before effecting the arrest.
[9.7]
In support of the plaintiff’s case, Lungisani Mphindwa who is
the plaintiff testified and proffered
a version contrary to that
presented on behalf of the defendant. The plaintiff denied that Nkomo
told him the reasons for his arrest.
The plaintiff’s
presentation of his case was however all over the place as his
counsel’s manner of leading the witness
left much to be
desired. It was characterized by various objections raised by defense
counsel and which were sustained by court
due to the fact that he
consistently fed the witness with evidence rather than leading the
witness on the factual matrix. The court
at some stage had to observe
a brief adjournment at the instance of the plaintiff’s counsel
in order to enable the plaintiff’s
counsel to compose himself
and continue with his evidence in chief. Briefly, this witness
touched on the undesirable treatment
and inconvenience he experienced
during the period of his detention. Notwithstanding the above, the
court found him to be a credible
witness.
Unlawful
arrest
[10]
Any arrest without a warrant which is not specifically
authorized by law is
prima
facie
unlawful. Our courts have therefore deemed it fair and just to
require the arrestor to bear the onus of proving that his or her
arrest was justified in law.
[1]
In
Minister
of Justice v Hofmeyr
[2]
(per
Hoexter JA) held:
“
The
plain and fundamental rule is that every individual’s person is
inviolable. In actions for damages for wrongful arrest
or
imprisonment our courts have adopted the rule that such infractions
are
prima facie
illegal
.
Once the arrest or imprisonment has
been admitted or proved it is for the defendant to allege and prove
the existence of grounds
in justification of the infraction”
[11]
The requirements for a lawful arrest without a warrant are
accordingly set out in section 40 (1)
(a)
and
(b)
of
the Criminal Procedure Act, 51 of 1977 (“the CPA”). The
provisions of section 40 (1)
(a)
and
(b)
of
the CPA read as follows:
“
(1)
A peace officer may without warrant arrest any person―
(a
)
who commits or attempts to commit any offence in his presence;
(
b
)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1, other than the offence of escaping
from lawful
custody;
(
c
)
...”
[12]
In
Duncan
v Minister of Law and Order
[3]
Van
Heerden JA explained the jurisdictional facts that must be
established for a successful defence under section 40 (1)
(b)
as being that:
[12.1]
the arrestor must be a peace officer;
[12.2]
the arrestor must entertain a suspicion;
[12.3]
the suspicion must be that the arrestee committed an
offence referred to in Schedule 1, other than an
escape from
lawful custody; and
[12.4]
the suspicion must rest on reasonable grounds.
[13]
Schedule 1 to the CPA refers to a number of offences in respect of
which arrest could be made without a warrant,
one of them being “
an
assault when a dangerous wound has been inflicted which is likely to
endanger life or the use of a limb or organ.”
[14]
From the above it is clear that before the arrestor can arrest the
arrestee, he or she must have reasonable grounds
for suspecting that
the arrestee has inflicted a wound on another person which was likely
to endanger the life or the use of a
limb or organ. This much was
confirmed in
Bobbert
v Minister of Law and Order
[4]
where
the plaintiff was arrested on the basis of an entry that the
arresting officer had read in a police register to the effect
that
the plaintiff was sought on a charge of assault with intent to do
grievous bodily harm. The court held that because the sole
basis for
the plaintiff’s arrest in terms of section 40 (1
)
(b)
was the arresting officer’s suspicion that the plaintiff had
committed an assault with intent to do grievous bodily
harm, there
was no reasonable ground for the arresting officer to suspect that an
assault in which a dangerous wound had been inflicted
. It was held
that the term “
grievous
bodily harm
”
was not always synonymous with the term dangerous wound. The court
concluded that it does not follow that a person who intends
to do
grievous bodily harm necessarily intends to inflict a dangerous
wound.
[15]
It is common cause that Nkomo is a peace officer. The critical issue
to be decided is whether or not Nkomo, had
reasonable suspicion that
the plaintiff had committed an offence referred to in Schedule 1,
which was likely to endanger the life
or the use of limb or organ of
the plaintiff. If he had held such a suspicion then the arrest would
have been lawful by reason
of the provisions of section 40(1)
(b)
of the CPA.
[16]
In
Mabona
and another v Minister of Law and Order and others
[5]
the
court held that the information upon which the reasonable suspicion
is based that a Schedule 1 offence has been committed must
be at the
arrestor’s disposal at the time of arrest. The arrestor will
critically analyse and assess the quality of that
information and
will not accept it without checking it where it can be checked.
[17]
The test as to whether the arresting officer’s suspicion is
reasonable must be assessed objectively.
[6]
This
principle was explored in
Duncan
where
it was held
that
the suspicion of the arresting officer is reasonably held if, on an
objective approach, the arresting officer has reasonable
grounds for
his suspicion.
[7]
Once
the required suspicion exists an arresting officer will be vested
with discretion to arrest, which he must exercise rationally
.
[8]
[18]
Mr
Siwahla
,
counsel for the plaintiff, limited his submissions to the plaintiff’s
heads of arguments submitting that the absence of
a warrant of arrest
rendered the arrest of the plaintiff unlawful because assault with
intent to do grievous bodily harm as pleaded
by the defendant is not
one of the offences listed in Schedule 1.
[19]
Mr
Siwahla
further submitted that from Nkomo’s testimony it is not so far
to discern that the charging of the plaintiff with assault
GBH was
formulated by Nkomo upon the reading of the of the complainant’s
statement and the J88 form. From the analysis of
the J88 form, the
complainant had sustained 1cm laceration on his forehead and it is
the plaintiff’s argument that the nature
and extent of the
injuries as depicted in the J88 form do not constitute a dangerous
wound as to fall within the purview of Schedule
1 offences.
[20]
Further it was the plaintiff’s submission that the
investigating officer failed to verify the information
at his
disposal and investigate the circumstances of the assault itself and
determine from the injuries sustained, the nature and
the seriousness
of the wounds and whether the wounds were inflicted intentionally or
accidentally. Mr
Siwahla,
in
substantiating his submissions, relied on amongst others
De
Klerk v Minister of Police.
[9]
In
that case the appellant had been arrested for assault with intent to
do grievous bodily harm following an altercation between
the
appellant and the complainant. In the plea, the respondent had not
relied upon the relevant part of Schedule 1 and nothing
had been said
about whether or not the wound inflicted was dangerous. There was
further no evidence by the respondent that an investigation
had been
carried out to ascertain the nature and extent of the wound. The
court held that it was insufficient that the arresting
officer had
relied on the statement by the complainant and the J88 form only when
she made the decision to arrest. The court further
held that the
arresting officer failed to investigate further the circumstances of
the assault itself, whether the wound was inflicted
intentionally or
whether it came about accidentally during the scuffle. In rejecting
the respondent’s version that it exercised
its discretion to
arrest in a proper manner, the court held that the arresting officer
had wrongly assumed that the assault had
been committed with intent
to do grievous bodily harm and that the offence was listed in
Schedule 1.
[21]
In the present case, the defendants’ plea which was not amended
to deal with the allegations contained in
the second particulars,
contained critical averments as basis for the arrest of the plaintiff
without a warrant. The relevant averments
are
inter
alia
that:
“
(a)
the defendant admits that the plaintiff was detained at Mount
Fletcher Police Station charged with assault
with intent to do
grievous bodily harm;
(b)
the arresting officer had reasonable grounds to suspect that the
plaintiff had committed an offence;
(c)
the plaintiff
’
s arrest and subsequent
detention fully complied with laws regulating arrest without a
warrant;
(d)
the defendant denies that it is liable to pay to the Plaintiff any
amount claimed
”
.
[22]
From the plea it becomes clear that the defendant’s basis for
the warrantless arrest was a suspicion by Nkomo
that the plaintiff
had committed an offence for which he had been charged, in this case,
an assault with intent to do grievous
bodily harm. This is
notwithstanding the fact that assault with intent to do grievous
bodily harm is not one of the offences referred
to in Schedule 1.
There was simply no reliance on Schedule 1 in the defendant’s
plea justifying the arrest other than a bold
statement that the
“
arrest was lawful on the basis
that it complied with the laws regulating arrest without a warrant”.
[23]
The court was unimpressed with Nkomo’s testimony as an
arresting officer. His evidence
was not in keeping with a police
officer of 13 (thirteen years) experience. In his evidence in chief
when asked to briefly explain
what prompted him to arrest the
plaintiff on the day in question, his testimony clearly demonstrated
that the evidence that was
before him at the time of arrest was not
sufficient to enable him to effect arrest with or without a warrant.
He did not appreciate
the elements of the offence for which he was
arresting the plaintiff in circumstances where he had not obtained a
warrant of arrest.
His testimony revealed that his investigations
were incomplete. He had not done an assessment or analysis of the
quality of information
he gleaned from the docket, including the J88
form. The nature of the injuries relied upon by Nkomo had not been
established by
him even when he met the complainant during the
pointing out of the plaintiff. There was no evidence led to establish
that he had
observed any physical injuries on the complainant at any
stage up to the period of the pointing out and that the injuries were
in keeping with what he observed from the J88 form particularly so
when one has regard to the fact that the pointing out happened
a mere
4 (four) days after the alleged incident. He had not obtained any
statements from any witness. The pointing out by the complainant
is
not characterized by any particularity of description or features of
the plaintiff as the perpetrator of the offence and he
gave no
evidence to link the plaintiff to the offence for which he was
arrested. In my view, he simply gave no consideration
to the
circumstances he was faced with.
[24]
The concession made by Nkomo that at the time of the arrest that the
plaintiff’s name was
unknown to himself and to the complainant
prior to him taking a drastic action to arrest the plaintiff points
to a dangerous inference
that there is a strong likelihood that he
arrested an incorrect person who had played no part in the assault of
the complainant.
[25]
It bears mentioning that in some instances the defence pursued a line
of defense during the course of trial which
had not been pleaded
when, by reason of it being a special defense, it ought to have been.
Absent an objection from the plaintiff’s
camp, I nevertheless
allowed the evidence where Nkomo sought to rely on his observation of
what he called “
the deep wounds he
observed from the J88 form and from his own reading of the J88 form
he
found
complainant had deep injuries or wounds on the head and that these
wounds were very serious wounds and that they were falling
under
Schedule 1
”. This evidence,
for the reasons stated above, had no merit and was ill founded
because the defendant’s plea
made no mention of a suspicion by
Nkomo that the assault involved an infliction of a dangerous wound
which was likely to endanger
the complainant’s life or use of
limbs other than mentioning a suspicion that the plaintiff had
committed an assault to do,
the complainant a grievous bodily harm.
This much was confirmed by the Supreme Court of Appeal in
De
Klerk
when it referred to the matter of
Minister of Safety and Security v
Slabbert
““
A
party has a duty to allege in the pleadings the material facts upon
which it relies. It is impermissible for a plaintiff to plead
a
particular case and seek to establish a different case at the trial.
It is equally not permissible for the trial court to have
recourse to
issues falling outside the pleadings when deciding a case.”
”
[10]
[26]
In applying the principles laid down in
De
Klerk
(
supra
),
it becomes evident that there was no justification for the arrest of
the plaintiff based on the statement of the complainant
and the
perceived injuries gleaned from a J88 form and that there was no
information upon which Nkomo could reasonably have suspected
that the
plaintiff had inflicted dangerous wound on the complainant. He
clearly wrongly assumed that assault GBH is an offence
listed in
Schedule 1.
[27]
Accordingly, it can hardly be said that the facts known to Nkomo at
the time of the plaintiff’s
arrest were sufficient to establish
a successful reliance on section 40 (1)
(b)
defence. I am therefore satisfied that the defendant failed to
establish that Nkomo reasonably suspected the plaintiff to have
committed an offence referred to in Schedule 1. His arrest was
therefore unlawful. The ensuing detention must similarly have been
unlawful.
Quantum
[28]
The issue remaining is whether the damages claimed is a fair and
reasonable compensation in relation to the arrest
and detention.
[29]
It is trite law that in assessing the appropriate award, the Court
should have regard to the previous awards made
by courts in similar
matters. The deprivation of liberty is a serious matter and in such
cases a reasonable discretion by the court
and broad general
considerations play a decisive role in the process of
quantification
[11]
.
[30]
Whilst the plaintiff’s evidence was not the best of the
evidence in supporting and substantiating his allegations
as pleaded
in the second particulars, of course owing to no fault of his but to
his legal counsel, I have found comfort in the
statement made by
Spilg J (Modiba AJ concurring) in
Mofokeng
v Minister of Police
[12]
regarding
failure by a plaintiff to lead evidence that allows court to take all
relevant factors into account when determining the
amount of damages
for unlawful arrest and detention:
“
It
would therefore be incorrect to conclude that a party will only be
entitled to a nominal award if he or she does not eloquently
and
vividly describe the effects of the arrest and detention. Moreover
the court is entitled to assume that, barring any evidence
to the
contrary, a plaintiff will suffer a loss of self-worth, will perceive
that others have a lower estimation of him, that he
will suffer
embarrassment, is likely to lose a degree [of] self-confidence and
will experience vulnerability, humiliation and a
feeling of being
impotent as a consequence of a wrongful arrest and detention.”
(Added emphasis.)
[31]
In analyzing the plaintiff’s evidence I have had regard to the
fact that the plaintiff
having filed a significant amendment in
relation to his head of damages and quantum, the defendant proceeded
on the basis of its
original plea to the first particulars.
[32]
The plaintiff alleged that he suffered considerable humiliation
and trauma as a result
of the unlawful arrest which was carried out
publicly and in the humiliating and degrading manner in full view of
the members of
the public in the taxi rank and hence the claim in the
amount of R60 000.00 in relation to unlawful arrest. He
submitted that
he was subsequently detained at Mount Fletcher Police
Station and later at Elands Heights Police Station for 5 days from
2
nd
April to the 7
th
April 2015 until he was made to appear in Court and thereafter
admitted to bail and eventually the charges against him were finally
withdrawn on the 3
rd
August 2015. He stated that he only realized he was under arrest when
he was handcuffed and placed in a police truck. He mentioned
that he
was experiencing incarceration for the first time and that this
experience was very traumatic for him. As a result of the
unlawful
detention, he suffered discomfort, shock, injury to his dignity,
deprivation of liberty, deprivation of amenities of life
and insult
and pain and suffering and hence the claim in the amount of
R540 000.00 for these head of damages.
[33]
In substantiating these damages, the plaintiff testified that during
the detention he was kept
in a small room in the police cells in leg
irons in appalling conditions. He was unable however to paint a more
clearer picture
to the court of the conditions under which he was
detained other than to state that he was assaulted by the other
inmates he found
in detention and that he felt cold as the
blankets he used at night were not warm enough. The unsatisfactory
evidence was
largely as a result of the plaintiff’s counsel
asking leading questions that were met with objections from the
defendant’s
camp and which were subsequently disallowed by the
court. Under cross examination he confirmed that during the period of
his detention,
he was given food and water; there were lights in his
cell at night; his cell had ablution facilities; and he never opened
a case
of assault by the inmates as he did not know of his rights to
do so.
[33]
In
Nel
v Minister of Police
[13]
,
Mbenenge JP, highlighted the guidelines that are pivotal to a
determination of quantum. In so doing he relied on
Minister
of Safety and Security v Tyulu
wherein the following is 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) at 325 para 17;
Rudolph
& Others v Minister of Safety and Security & Another
2009
(5) SA 94
(SCA) ([2009] ZASCA 39) paras 26-29).””
[14
[34]
Coming to the determination of an appropriate award, Mr
Siwahla
appearing for the plaintiff sought to rely on
Mtola
v Minister of Police
[15]
as
the basis of what is fair and reasonable quantum in the circumstances
and where the court awarded a sum of R10 000.00 in damages
for the
detention which was held to be unlawful only to the extent that it
went beyond the statutory 48 (forty eight) hour period.
What the
plaintiff’s counsel overlooked however was that when he made
the submissions before the court, this judgment had
already been
overturned on appeal. The appeal court had found the arrest and
detention to have been unlawful where the circumstances
had pointed
to the arresting officer as having effected the arrest without
carefully analyzing and assessing the information at
his disposal and
simply relying on the complainant’s
ipse
dixit.
The
court made an award in the sum of R125 000.00 as fair and reasonable
damages.
[35]
In dealing with awards, I have thus had regard to previous awards
including made in this Division:
[35.1]
In
Mkwati v Minister of Police
(ECM)
unreported case no 2902/2013 of 23 January 2018 the plaintiff
was arrested whilst walking from a school meeting and
placed in the
back of a police van which was driven in a manner that tossed him,
causing him to hit his head against the van’s
body panel. At
Nqgeleni Police cells, he was detained for 5 days, and the cells were
dirty, smelly, principally because of proximity
to a blocked toilet.
The plaintiff also suffered at the hands of cell mates who
ill-treated him. He was awarded damages in the
sum of R560 000.00
for arrest and detention.
[35.2]
In
Hoco v Mtekwana and Another
2010 (2) SACR 536
(ECP) the plaintiff was arrested
without a warrant and detained for almost four days. He was awarded
compensation of R80 000.00.
[35.3]
In
Goliath
v
Minister of Police
[16]
,
the appeal court found the arresting officer to have arrested
the appellant without ascertaining the severity of the
complainant’s
injuries including the nature of the injuries sustained and without
any information upon which he could reasonably
have suspected that
the appellant had inflicted a dangerous wound upon the Respondent.
This is after the arresting officer had
arrested the appellant
without physically examining the wounds. The arrest was held to
be unlawful and so was the detention
which lasted for 38 hours. It
was the appellant’s first experience of being in custody. The
court awarded R50 000.00 damages
as compensation for both the
unlawful arrest and detention.
[36]
Accordingly, in arriving at the question of an appropriate quantum, I
have had to consider the
above circumstances including the personal
circumstances of the plaintiff, the absence of evidence linking him
to the crime, the
humiliation he suffered as a result of his arrest,
the trauma he went through as this was his first experience of being
in custody
and the fact that he was deprived of his liberty as he was
prevented by his arrest and detention from spending Good Friday and
Easter holidays with his family following his arrest on Thursday, the
2 April 2015. In the premises and having regard to previous
awards, I
am satisfied that an award R480 000.00 would be fair and
appropriate in the circumstances of this case.
[37]
The costs shall follow the result.
Order
[38]
In the result, I make the following order:
1.
The plaintiff’s arrest on 2 April
2015 is declared unlawful.
2.
The plaintiff’s detention from 2
April until April 2015 is declared unlawful.
3.
The defendant is directed to pay the
plaintiff damages in the sum of R480 000.00 consequent upon the
arrest and detention together
with interest thereon at the prescribed
legal rate from the date of judgment.
4.
The defendant shall pay the plaintiff’s costs of suit together
with interest there on payable from a date 14
days from the date of
the
allocutor
to
the date of final payment.
B
NDAMASE
ACTING
JUDGE OF THE HIGH COURT
COUNSEL
FOR PLAINTIFF
:
M.
Siwahla
INSTRUCTED
BY
: Poyo Siwahla
Incorporated
COUNSEL
FOR DEFENDANT :
M
Mkhosana
INSTRUCTED
BY
: The State Attorney
Mthatha
HEARD
ON
:
05 DECEMBER 2018
DELIVERED
ON
: 26 FEBRUARY 2019
[1]
Goliath
v Minister of Police
(ECG)
unreported case no CA107/2017 of 14 November 2017 at para 3;
Minister
of Law and Order v Hurley
1986(3)
568 (AD) at 589E-F.
[2]
[1993] ZASCA 40
;
1993
(3) SA 131
(A) at 153D-E.
[3]
1986
(2) SA 805
(A) at 818G-H.
[4]
1990
(1) SACR 404 (C).
[5]
1988
(2) SA 654
(SE) at 658 G-H.
[6]
S
v Nel and Another
1980
(4) 28 SA (E) at 33H.
[7]
Duncan
(note
3 above) at 814.
[8]
Minister
of Safety and Security v Sekhoto and Another
2011
(5) SA 367
(SCA) at 373 B-C.
[9]
2018
(2) SACR 28 (SCA).
[10]
De
Klerk
(note
9 above) at para 7.
[11]
Rahim
and Others v Minister of Home Affairs
2015(4)
SA 433 (SCA)
at
para 27.
[12]
(GJ)
unreported case no 2014/A3084 of 17 February 2015
at
para 29.
[13]
(ECG)
unreported case no CA62/2017 OF 23 of January 2018.
[14]
Ibid
at para37.
[15]
(ECM)
unreported case no1110/2013 of 19 March 2015.
[16]
(ECG)
unreported case no CA 107/2017 of 14 November 2017