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[2019] ZAECMHC 68
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Mzingeli and Others v Minister of Police (139/2015) [2019] ZAECMHC 68 (12 November 2019)

IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVION: MTHATHA]
CASE
NO. 139/2015
Heard on:
15 October 2019
Delivered on: 12
November 2019
In
the matter between:
XOLILE
MZINGELI

1
st
Plaintiff
LUTHANDO
NDAYI

2
nd
Plaintiff
MPUMEZO
XABADIYA

3
rd
Plaintiff
and
MINISTER
OF
POLICE

Defendant
JUDGMENT
ZONO AJ
[1]
The plaintiffs instituted action for damages suffered as a result of
unlawful detention
against the defendant.  The action is
defended by the defendant.
[2]
Pre -trial minute demonstrates that the parties agreed that on 15
October 2019 the
trial will proceed on both merits and quantum as the
special plea relating to non- compliance with  Section 3 of Act
40 of
2002 has been withdrawn.
[3]
On 15 October 2019, the date of trial, parties agreed to dispose of
the issue of liability
and postponed the issue of quantum for
possible argument on 16 October 2019.  The substance of the
court order is as follows:
BY AGREEMENT
BETWEEN PARTIES IT IS
“
1.
Ordered that the
:
1.1
Issue of liability and quantum are separated;
1.2
Defendant is found liable for the :
1.2.1
First and Third Plaintiffs’ unlawful detention from 14
September 2010 to 24 July 2014; and
1.2.2
Second Plaintiff’s detention from 13 September 2009 to
24 July 2014.
1.3
Defendant shall pay costs consequent upon the determination of
the issues of liability;
2.
Recorded that:
2.1
The defendants’ legal representatives shall seek instructions
for the settlement of
quantum;
2.2
In the event of the issue of quantum not being settled, the parties
shall argue this aspect
of the case at 14h15 on Wednesday, 16 October
2019 or so soon thereafter as the matter may be called.”
I granted this order.
[4]
On 16 October 2019 the action presented itself in the form of a
stated case in terms
of which parties agreed on various aspects of
the case.  Parties’ contentions were defined together with
the relief
the respective parties sought. In what follows I set out
agreed facts giving rise to the claim, dispute, parties’
contentions
and relief sought as set out in the stated case.
[5]
Paragraphs 3 to 18 of the stated case form the substance of what
sought to be decided
and is as follows:
AGREED FACTS GIVING
RISE TO THE CLAIM
“
3.
The plaintiffs were:
3.1
Arrested on 13 September 2009.
3.2
Detained on 13 September 2009.
on
charges of housebreaking, theft and murder.
4.
The first and third plaintiffs were:
4.1
Found guilty on charges of housebreaking, theft on 17 September 2009.
4.2
Sentenced to 12 (twelve) months imprisonment on 17 September 2009.
5.
On14 September 2010, at the end of their period of imprisonment for
12 (twelve)
months, the first and third plaintiffs:
5.1
Were remanded in custody and not released
5.2
Faced charges of murder together with the second plaintiff.
6.
The magistrate before whom the plaintiffs allegedly confessed to
murder recorded
in the confessions that the plaintiffs had (i)
informed him that they were confessing because they had been
assaulted by the police,
(ii) had been tortured by the police, and
thus, (iii) had been coerced to confess to the crime of murder.
Copies of the confessions
in issue and/or parts thereof will be
placed before court.
7.
On 24 July 2014, the charges of murder were withdrawn against all the
plaintiffs.
8.
On 02 December 2014, the plaintiff’s wrote a statutory letter
to the defendant
in terms of which the latter was notified that:
8.1
The plaintiffs had been unlawfully arrested in September 2009.
8.2
There had been no reasonable or probable cause for the arrest and
detention.
8.3
The plaintiffs had been assaulted and tortured during the arrest
found guilty, on 17 September
2009.
8.4
The plaintiffs demand payment of R27 000 000-00 without
payment of which they
would institute action for the recovery of
damages.
8.5
The letter of demand attracted no response.
9.
On 24 July 2014, the charges of murder were withdrawn against all the
plaintiffs.
10.
The special plea of:
10.1
Prescription was disposed of by the Court on 10 December 2018.
10.2
Non-compliance with section 3 of the Institution of Legal Proceedings
Against Certain Organs of State Act,
2002 (Act No. 40 of 2002) is no
longer in issue, the plaintiff’s having produced proof of
compliance to the defendant’s
satisfaction.
11.
The issue of liability was settled on 15 October 2019 when it was
ordered that the:
11.1.
Issue of liability and quantum are separated.
11.2.
Defendant is found liable for the:
11.2.1.
first and third plaintiff’s unlawful detention from
14
September 2010 to 24 July 2014; and
11.2.2.
second plaintiff’s detention from 13 September 2009
to 24 July
2014.
11.3.
Defendant shall pay costs consequent upon the determination of the
issue of liability.
12.
In order of 15 October 2019, it was further recorded that:
12.1.   The
defendant’s legal representatives shall seek instructions for
the settlement of quantum.
12.2.   In
the event of the issue of quantum not being settled, the parties
shall argue this aspect of the case at 14h15
on Wednesday, 16 October
2019 or so soon thereafter as the matter may be called.
13.
The parties have not settled the issue of quantum, each party
contending as the respective
parties do in paragraph 14, below.
THE DISPUTE
14.
The matter is in Court for the determination of the issue of quantum.
THE PARTIES’
CONTENTIONS
15.
The plaintiff contends that:
15.1.   The
detention injured their feeling and deprived them of liberty, a right
with which each one was born.
15.2.
Notwithstanding their knowledge of acceptable means of procuring
evidence, the police assaulted the plaintiff
in order to procure
confessions from them.
15.3.   When
they were tortured in order to make confessions, they were assaulted
whilst hand cuffed, sometimes a plastic
was put around their heads to
the neck thus depriving them of the natural ability to breath.
They were hit by a baton and
sometimes their heads drown on a bucket
of water so they could choke from breathing in water.  All these
barbaric acts, led
them into confessing to the crime of murder.
15.4.
Whilst in detention:
15.4.1
they were on occasion assaulted by the other inmates
with the view to
force them to join prison gangs.
15.4.2.
episodes of sodomy were a usual occurrence.
15.5.   For
the whole time the plaintiffs remained in unlawful detention, the
police:
15.5.1.
had an opportunity to disclose to the authorities the callousness
of
their conduct, which disclosure would have led to the plaintiffs
being released from detention, they did not;
15.5.2.
did not take any steps to reveal their conduct to the court
during
the very many appearance that the plaintiffs made before being
released, this in their capacity as officers of the law.
15.6.   Took
away from them a period of more than 4 (four) years of their
lives.
15.7.   The
conditions in detention were inhumane, degrading and unhygienic.
15.8.   The
plaintiffs are entitled to an award for general damages which will
much needed solatium for their injured
feelings in the sum between
R3 500 000-00 (three million, five hundred thousand rand)
and the sum R4 500 000-00
(four million, five hundred
thousand rand).
16.
The defendant contends that each plaintiff is entitled to an award
for general damages in
the sum of R1000 000-00 (one million rand).
RELIEF SOUGHT
17.
The:
17.1
First plaintiff prays for judgment
in the sum of R3 500 000-00
(Three million, five hundred thousand).
17.2.
Second plaintiff prays for judgment in
the sum of R4 500 000-00
(Four million, five hundred thousand).
17.3
Third plaintiff prays for judgment
in the sum of R3 500 000-00
(Three million, five hundred thousand).”
18.
The defendant prays for an award to made to each plaintiff in the sum
of R1 000 000-00
(one million rand).
[8]
The recapitulation of the agreed facts is that the first and third
plaintiffs were
unlawfully detained from the 14 September 2010 to 24
July 2014 and whereas the second plaintiff was unlawfully detained
from 13
September 2009 to 24 July 2014.  This agreement accords
with the court order dated 15 October 2019.  When this court
exercises its discretion it will exercise same around the
aforementioned periods.  The agreed facts are that the
plaintiffs
informed the magistrates before whom confessions were made
that they were confessing because they had been assaulted by the
police;
that they had been tortured by the police and lastly that
they had been coerced to confess to the crime of murder.  It is
this crime of murder that was withdrawn on 24 July 2014.
[9]
The plaintiffs contend that the police assaulted and tortured them in
order to procure
confessions from them.  Not only the police
assaulted the plaintiffs, they were also assaulted by other inmates
with a view
to force them to join prison gangs and were often
sodomised.  For the entire time the plaintiffs remained in
detention they
were subjected to inhumane, degrading and unhygienic
conditions.  The nature of torture the plaintiffs experienced is
described
as follows:  “
they were assaulted whilst
handcuffed; sometimes a plastic was put around their heads to the
neck thus depriving them of the natural
ability to breathe.
They were hit by a baton and sometimes their heads drown on a bucket
of water so they could choke from
breathing in water.  All those
barbaric acts, led them into confessing to the crime of murder.”
The defendant does not contend otherwise especially with regard
to the picture given by the plaintiffs.  The only contention

given by the defendant is with regard to the amount to be awarded
which is at variance with what the plaintiffs seek.
[10]
It is not stated by the parties for how long the plaintiffs were
subjected to assault, torture
and sodomy whilst they were in
detention.  It is not unreasonable to infer that those
conditions or experiences befell plaintiffs
for the entire time they
had been there in custody or detention.  The court may draw
inferences from agreed facts.
[1]
If the magistrate recorded what the plaintiffs told him/her about
cruelty they were subjected to and the magistrate did not
leave a
room that there may be times during their incarceration where they
were not subjected to these cruel acts, it is probable
that they
suffered in the hands of the police for as long as what was sought to
be achieved was not achieved by the police.
It is reasonable to
infer that the cruelty continued until the confessions were procured.
It is possible that the police
might have been annoyed by
the revelation by the plaintiffs to the magistrate and became even
more harsher to them.
[11]
This case involves plaintiffs’ rights to human dignity, freedom
and security and, a number
of rights enshrined in Section 35 of the
constitution.  Right to privacy is incidental to all those
rights.  This is
a typical case of a gruesome violation of the
rights aforementioned.
[2]
[12]
In
Minister of Safety and Security v Tyulu 2009(2) SA 282 (SCA)
Para 26
Boiselo AJA had an occasion of saying “
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
critical 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
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 is to have regard to all the facts of the particular
case and to determine the quantum of damages
on such facts.”
It admits of no doubt that there must be an equilibrium and
consensus between the injury inflicted and the damages to be awarded.
[13]
In
Minister of Safety and Security v Seymour 2006(6) SA 320 (SCA)
Para 20
Nugent JA held that “
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.
The awards I have referred to reflect no discernible pattern other
than that our courts are not extravagant
in compensating the loss.
It  needs also to be kept in mind when making such awards that
there are many legitimate calls
upon the public purse to ensure that
other rights  that are no less important also receive
protection.”
What the plaintiffs lost can never be restored
and cannot be measured in monetary terms.
[14]
In the subject Van Der Byl AJ was not quiet.  In the matter of
Zealand v Minister of Justice and Constitutional Development and
Another
2009 JOL 23423
(SE) Para13,
the following was said “
if
there is any doubt in one’s mind particularly, the suffering
and anguish a person so imprisoned, must endure, one can only
cast
your mind back in your life over such a period and consider how much
has happened to you in those years and how long ago it
has seemed.
In the words of
Holmes JA in S VV 1972(3) SA 61(AD) at
614G
:…..enlivened by domestic happiness and the
free pursuit of their avocations …….no such
ameliorations attend
the slow tread of years when you are locked up.”
The
following passage from the Judgment in S v Martins 1996(2) ACR 378
(W) at 385I – 386A is also instructive:
“
To
have freedom restricted, especially if there is confinement to a
small area is in itself a severe punishment.  A long period
of
such restriction will to all but the most hardened increasingly
border on earthly hell.   To have to endure that in
the
company of unpleasant character…. Personally, though this can
be no more than my own view, I think that no life at all
can be less
harsh than a life without any positive quality at all, but replete
with enumerable days each brimming with the new
day’s
repetition of tragedy, boredom, tensions and reminders that you will
at all times be indigestible to the stomach of
the community.”
[15]
In
Vuyani
Gwebindlala v Minister of Safety and Security
[3]
the plaintiff claimed damages for deprivation of liberty,
humiliation, degradation and contumelia.  The plaintiff is an
attorney
who was arrested at the offices of his client in Idutywa
when he was consulting with his client.  He was kept under a
watchful
eye of the members of the Public Order Police Services
(POPS) for four hours.  The court, after examining some
authorities
awarded an amount of
R55 000-00
.
[16]
In
Akhona Penelope Mahlasela v Minister of Safety and Security and
Another (unreported) Case No. 72/2013 Eastern Cape High Court,
Mthatha,
delivered on 9 June 2016
, the plaintiff sued the
defendant for unlawful arrest and detention and assault.  The
claim for assault was dismissed.
The detention of the plaintiff
endured for (11) eleven days.  This court, after examination of
other cases awarded an amount
of R200 000-00 for plaintiff’s
detention.  The degrading nature of the detention appears to
have weighed in the
Judge mind when considering the amount awarded.
[17]
In the full court of this division in the matter of
Mtola v
Minister of Police (CA23/16) [2017] ZAECMHC 56 (29 June 2017)
an
amount of R125000-00 was awarded to the plaintiff for arrest and
detention for a period of 5 days.  Humiliation suffered
by the
plaintiff, deprivation of liberty for 5 days, unhygienic conditions
in the police cells and the fact that the plaintiff
was separated
from his family and friends for that period were taken into account.
[18]
In the matter of
Tate v Minister of Police and Another (1452/2015)
ZAECHMC 30, 27 June 2018
this court awarded an amount of
R75000-00 for plaintiff’s detention for a period of three
days.   In its application
of mind to the case the court
found that an amount of R25000-00 is appropriate for a day.  A
respect for human rights was
a major consideration by the court.
[19]
In
Mgele v Minister of Police and Others (1257/2011)[2015] ZAECMC
70 (6 October 2015)
in respect of detention, which endured for
four days this court awarded an amount of R150 000-00.
Conditions in the
cells were described as cold with cement floor,
smelly latrines and infested with lice.  The plaintiff was
bitten by the lice
and all of these were taken into account.
[20]
In KwaZulu Natal, the same subject was also considered.  In
SS
Mkhize v Minister of Justice and Constitutional Development [2014]
ZAKZPHC Case No. 10386/2009 delivered on 14 March 2014
(unreported), the plaintiff was incarcerated for a period of 27
months (two years three months) and the court awarded an amount
of
R2000 000-00 for general damages.  What appear to have weighed
heavily in the mind of the court are the awards in other
cases.
The court relied on those judgments as a useful guide to arrive at a
fair and reasonable compensation.
[21]
During hearing of this matter both parties referred me to the case of
SL and Another v Minister of Police (2143/2016)[2018] ZAKZPHC 33
for different reasons.  According to the plaintiff this case can
be used to provide a useful guide to the direction this case
should
take.  Defendant’s attempts were purely to distinguish
this case from the merits of that case.  Quite apart
from the
period that the plaintiffs in this case spent in detention which is
less than the period spent by plaintiffs in that case,
I see numerous
similarities between the two cases.  The major defference
between the two cases is that the plaintiffs in that
case were
deprived of their freedom and liberty for a period of 6 years and 11
months.  It is noteworthy that the conditions
experienced by the
plaintiffs in that case are substantially similar to what the
plaintiffs herein were subjected to.  However,
it was submitted
on behalf of the plaintiffs that the conditions experienced by the
plaintiffs herein were even more egregious
when compared to the ones
experienced by the plaintiffs in that case.
[22]
In that case, as in here, both plaintiffs were subjected to most
humiliating, degrading and dehumanising
treatment at the hands of the
police.  It is common cause herein that the plaintiffs were
severely assaulted and tortured
during detention.  The
magistrate before whom confessions were made recorded in the
confessions that the plaintiffs informed
him that they were coerced
to confess by means of assault and torture.  It was submitted on
behalf of the plaintiffs that
the very reason for their arrest was to
extract confessions in a manner that is cruel.
[23]
In that case, both plaintiffs were assaulted throughout their
detention period.  In this
case it does not appear that there
was a stage that they were not assaulted.  The following
instruments were used to assault
plaintiffs herein:  handcuffs,
baton, a plastics glove that were put around their heads to the neck
merely to suffocate them,
their heads would be drown on a bucket of
water so they could choke from breathing in water.
[24]
While in detention, plaintiffs in that case, as in here, became
victims of gangsterism.
Unlike in that case where
plaintiffs were subjected to threats of assault and reprisals by
other inmates with a view to force
them to join prison gangs,
plaintiffs herein were actually assaulted.  Unlike in that case,
plaintiffs herein suffered constant
episodes of sodomy while in
detention.  Unhygienic conditions in the detention, is what was
commonly suffered by plaintiffs
herein and plaintiffs in that case.
I am alive to the distinction to which my mind was drawn by
defendant’s counsel
about the fact that in that case
plaintiffs’ bodies were covered in tattoos while they were in
detention.  Much as it
is the distinction that marks this case
that plaintiffs herein suffered episodes of sodomy, use of water
bucket to drown and choke
plaintiffs, plastics were used to suffocate
plaintiffs etc.  Nevertheless I find that the conditions
suffered by the plaintiffs
in both cases are substantially the same.
The only major distinction between the two cases is that of a period
spent by plaintiffs
in detention.  However, this case like many
other cases referred to above will be used as a useful guide for
determining the
award of damages in this case.
[25]
These facts reminds me of remarks made by Broome JP in the matter of
May v Union Government
1954 (3) SA 120(N)
et 130E
“
our
law has always regarded the deprivation of personal liberty as a
serious injury, and where the deprivation carries with it the

imputation of criminal conduct of which there was no reasonable
suspicion the injury is very serious indeed.”
The
assault committed by the police to the plaintiff, exacerbates the
seriousness of injury.  A fair and reasonable compensation
will
be what is commensurate to the injury suffered.  The amount must
measure up with injury sustained.
[26]
I cannot disregard the circumstances under which the deprivation of
liberty occurred, the presence
of improper motive or malice on the
part of the defendant.
[4]
It is not in dispute that the plaintiffs were
respectively arrested and detained and caused to suffer in the
manner
they did solely for the police to procure confessions.  The
police invoked their brute and cruelty solely to victimise
plaintiffs
and most importantly with the aim to procure confessions on a crime
of murder, when they knew perfectly well that plaintiffs
have not
committed the crime.  The intent of the police was so
malicious.  The manner in which this case has been handled
by
the defendants shows no remorse for what they did to the plaintiffs.
The plaintiffs deserve satisfaction for what they
had been put
through by the defendant.  The above mentioned authors at Page
130-131 had this to say “
if
all the requirements for liability are met the person whose liberty
was wrongfully restrained may claim damages aimed at providing

personal satisfaction…..factors which play a role in the
assessment of the amount of damages are the following: the
circumstances
under which the deprivation of liberty occurred; the
presence or absence of malice or an improper motive on the part of
the defendant;
the duration of the deprivation of liberty; and
whether the defendant apologises or provides a reasonable explanation
for what
happened.  In addition, awards in previous comparable
judgments.”
[27]
The fact that the charges were withdrawn against the plaintiffs,
obviously after the magistrate
had recorded how inhumane plaintiffs
were treated by the police, makes facts of this case to be more
egregious.   Had
the magistrate not recorded truth about
plaintiffs’ detention and the manner In which they were treated
by the police, I
cannot stop to imagine what could have happened.
The plaintiffs could have been convicted of a crime of murder they
did not
commit.  The aim of the police to force the plaintiffs
to confess to the crime they did not commit was not only a
conviction,
but also a heavy sentence which would have costed them
life and rob their families valuable members.  Each time the
plaintiffs
were assaulted and tortured (forced to confess) they were
reminded of a possibility that they would stay in jail for life and
never
see their families and friends again.  To this end,
torture was not only physical but also psychological with possible
and
attendant sequellae.  The second thing that could have
happened had the magistrate not disclosed the vile deeds of the
police
is that, they could have stayed longer in detention and even
face possible damages which include death and permanent injuries
caused
by their co-inmates.  I commend them for being brave and
not succumbing to the pressures exerted on them.
[28]
The police are placed by the constitution and the legislation on the
position of trust.
The police has a fiduciary duty to protect
the members of the public.  Facts of this case demonstrate that
police have broken
that relationship.  I will now turn to
examine provisions of
Section 205(3) of the Constitution
and
thereafter
the Preamble and
Section 13
of the
South African Police
Service Act 68 of 1995
.
I reiterate that trust is a
substratum upon which the relationship between the police service and
citizens is built.
Conduct like these inspire citizens to take
law into their own hands.  A police service that is not
committed to its duty
of protecting its citizens encourages
lawlessness.  It becomes worse when they are involved in the
abuse of the citizens and
in criminal activities like brutal assault
and intimidation.
[29]
Section 205(3) of the Constitution
provides that “
the
objects of the police service are to prevent, combat, and investigate
crime, maintain public order, to protect and secure the
inhabitants
of the Republic and their property, and to uphold and enforce the
law.”
The police in this instance demonstrably failed
to keep up to the standard the constitution set for them.  Their
conduct is
an antithesis of what the constitution, which is the
supreme law of the land, demands of them.  Instead of preventing
and
combating the crime, they committed it.  Instead of
investigating the crime of murder allegedly committed, the police
committed
further crimes which would require them to be
investigated.  Instead of protecting and securing plaintiffs as
inhabitants
of the Republic, they exposed them to many dangers of
prison cells and even perpetrated crime against them, which clearly
demonstrates
that they did not uphold the law.  To this end, the
police violated the constitution.
[30]
The South African Police Service Act 68 of 1995 (the Act) was enacted
to give effect to the provisions
of the constitution.  The Act
in its preamble provides, inter alia, that: “
whereas there
is a need to provide a police service throughout the national
territory to –
(a)
ensure the safety and security of all persons and property in the
national territory;
(b)
uphold and safeguard the fundamental rights of every person as
guaranteed by Chapter 3 of
the Constitution…..”
I
have already dealt with how the conduct of the police failed to
ensure safety and security of the plaintiffs when dealing with

Section205(3) of the Constitution.
[31]
With regard to police failure to uphold and safeguard plaintiffs’
fundamental rights guaranteed
by Chapter 3 of the Constitution, I
wish to deal with three sections in the constitution which were
obviously violated by the conduct
of the police.  Section 12
that deals with freedom and security of persons.  Section 10
guarantees a right to dignity
and Section 35  guarantees rights
of the arrested, detained and accused persons.  I wish to
further deal with the heightened
responsibility of the state, of
which the police service is the part, towards the Bill of Rights in
Chapter 2 of the Constitution.
[32]
Section 7(1) and (2) of the Constitution
provide as follows:
“
(1)
This Bill of Rights is a cornerstone of democracy in South Africa.
It enshrines the rights
of all people in our country and affirms the
democratic values of human dignity, equality and freedom.
(2)
The state must respect, protect, promote and fulfil the rights in the
Bill of Rights.”
Section 8 (1) of the
Constitution
further emphasizes that all organs of state, which
includes the police service are bound by the Bill of Rights.
States duty
to respect and protect rights enshrines the constitution
permeates every provision of the constitution.  The fact that
this
duty is mentioned everywhere in the constitution underscores the
importance of the responsibility.
[33]
Section 10 of the Constitution
provides that “
everyone
has inherent dignity and the right to have their dignity respected
and protected.”
This is a universal right enforceable
against any person including the police.  It goes without saying
that this right was
disdainfully violated by the police.
Section 12(1) of the Constitution
provides that “
everyone
has the right to freedom and security of the person, which includes
the right –
(a)
not to be deprived of freedom arbitrarily or without just cause;
(b)
…………………………
(c)
to be free from all forms of violence from either public or private
services;
(d)
not to be tortured in any way ;
(e)
not to be treated or punished in a cruel, inhuman or degrading way.”
It is
without just cause to detain a person solely to procure confession
and when your plan is exposed by the magistrate you abruptly
withdraw
charges.  It is inexcusable for the police to treat plaintiffs
in the manner they did and that cannot be tolerated
in a civilised
society like ours, founded on democratic values of human dignity,
equality and freedom.
[5]
The police, the repository of power to protect, violated the
fundamental rights.
[34]
Section 13(3) of the Act enjoins a member of SAPS to perform his or
her duties in a manner that is reasonable.
It is not at all
reasonable to keep in detention people when you know perfectly well
that they did nothing.  This explains
how malicious, brutal and
reckless the police were when dealing with plaintiffs, a factor I
cannot ignore when determining quantum
in this matter.  The
prosecutor should have been told by the police very early that there
is no evidence so that a proper
decision is made and not wait for
your shenanigans to come to bear in purported confessions.
[35]
In
Botha v Minister of Safety and Security and January v Minister
of Safety and Security 2012(1) SACR 305 (ECP) Para 30
this duty
was aptly articulated as follows:  “
Where there are no
facts which justify further detention of a person, this should be
placed by the investigator before the prosecutor
of the case and law
casts an obligation on the police official to do so.”
In
Paragraph 20 it was held that “
what is meant by Section 13
of the SAPS Act above is that all police officers must act in
accordance with the requirements of the
constitution and in doing so
must have regard to, particularly, the fundamental rights of every
person they are dealing with in
the course of their duties.”
[36]
The upshot of this is that the conduct of the police in this case was
grossly reckless, malicious and brutal and
it should be condemned in
strongest terms possible.  They should have exercised diligence
and tread carefully when dealing
with the freedom of persons.
[37]
The stated case and the court order envisage a claim by three
plaintiffs against defendant.  The parties agreed
on a judgment
in favour of three plaintiffs, namely, Xolile Mzingeli, Mpumezo
Xabadiya and Luthando Ndayi.  On 15 October
2019, the parties
agreed on an order finding defendant liable for unlawful detention of
three plaintiffs.  The relief sought
by the plaintiffs in the
stated case is as follows:
For the first plaintiff:

R3500 000-00
For the second
plaintiff:
R4500 000-00
For the third
plaintiff:

R3500 000-00
The defendant contents
that, each plaintiff is entitled to an award of damages in the sum of
R1000 000-00 although in the Heads
of Argument and during oral
argument it was submitted on behalf of the defendant that the second
plaintiff is entitled to R1200
000-00.  As things stand the
parties are poles apart in respect of the amounts to be awarded as
damages to plaintiffs.
[38]
Mr Pitt submitted that the relief sought in the case is substantially
different from the one sought in the particulars
of claim.
Particulars of claims are an important part of Combined Summons.
Combined Summons is a vehicle through which
these proceedings were
brought.  In cases of a disputed issue, so he submitted, it is
obligatory to resort to the pleadings.
[39]
A court that is called upon to decide a special case under Rule 33 is
required to decide the question of law presented
to it and has no
right to travel outside the four corners of the agreed statement and
decide a different question that it wishes
the parties had submitted
to it to decide but did not or that it may wish the parties had
included as one of the questions of law
they had submitted to it to
decide but did not.  It would, therefore, be fundamentally
unfair to at least one of the parties
but, possibly, to both if, in a
special case, the court, were to change the question to be decided.
It would be both a serious
misdirection and a gross irregularity for
a court to do so.
[6]
I can
confidently find that I am confined within the four corners of the
stated case and I will decide the dispute and the
contentions raised
therein and decide the merit or de merit of those contentions.
[40]
It is in Paragraph 14 of the agreed statement or stated case that the
parties specified what the dispute is the
court is called upon to
decide.  There the parties wrote:
THE DISPUTE
“
14  The
matter is in court for the determination of the issue of quantum.”
In Paragraph 15 thereof
the parties set out their contentions.  In their contentions
they point out to different figures which
this court must consider
for and in favour plaintiffs.  It is in the parties’ minds
that all three plaintiffs must be
compensated but they do not agree
on the amounts.  I am called upon and I set out to decide this
case on the basis of the
contended amounts.  It is from the
contentions of the parties that the question of law sought to be
decided emerges.
[7]
[41]
What cannot be ignored is the reference made in the stated case by
the parties to the court order granted by this
court on 15 October
2019.  I had had sight of the court order and it was granted by
consent.  The court order found the
defendant liable for first
and third plaintiffs’ unlawful detention from 14 September 2010
to 24 July 2014, and second plaintiff’s
detention from 13
September 2009 to 24 July 2014.  It is therefore plain that the
parties call upon this court to consider
a fair and reasonable amount
each plaintiff is entitled to in respect of those periods set out in
the stated case.  In the
stated case there is no suggestion that
I must not consider when deciding quantum of damages, the agreed
facts and contentions
set out therein, but only prayers in the
particulars of claim.  I find that oral argument opportunistic
as it is not even
supported by the written submissions prepared on
behalf of the defendant.  I regard it as an afterthought.
[42]
In addition to the authorities I quoted above relating to the quantum
I considered as well the case of
Siyaxolisa Ntondini v Minster of
Police Eastern Cape High Court, Mthatha, Case No. 2629/2016 delivered
on 28 March 2019 (unreported)
where the plaintiff instituted
proceedings for his unlawful arrest and detention and his detention
lasted for six days and an amount
of R325000-00 was awarded.
[43]
On the conspectus of the agreed facts, parties’ contentions and
relief sought in the stated case coupled
with the authorities I have
considered on the subject, I find as follows:  in respect of the
first and third plaintiffs an
amount of R3000 000-00 for each as fair
and reasonable award, and in respect of the second plaintiff and
amount of R4000 000-00
as a fair and reasonable amount in the
circumstances.
[45]
With regard to costs, the defendant tendered or at least did not
oppose costs of suit such to include costs consequent
upon employment
of two counsels.  The defendant did not regard as unnecessary or
wrong for plaintiffs to have employed two
counsels.  A number of
authorities were quoted not only by the plaintiffs, by the defendant
too.  That shows that the
matter is complex and needed a lot of
attention in terms of legal authorities.  The amounts or figures
involved in this matter
are substantially huge and require a clear
articulation.  There are no many decided cases where plaintiffs
have been incarcerated
for such a long period of time.   This
case did not enjoy much benefit of precedence.  In the
circumstances I find
costs of two counsels appropriate.
[46]
In the result I make the following order:
(I)
The defendant is liable for the unlawful detention of the first
plaintiff in
the amount of R3000 000-00 (Three Million Rand);
(II)
The defendant is liable for unlawful detention of the second
plaintiff in the amount
of R4000 000-00 (Four Million Rand);
(III)
The defendant is liable for unlawful detention of the third plaintiff
in the amount of
R3000 000-00 (Three Million Rand);
(IV)
The defendant shall pay costs of suit, such costs to include costs
consequent upon employment
of two counsels.
____________________
A.S.ZONO
JUDGE
OF THE HIGH COURT (ACTING)
APPEARANCES
For
the Plaintiffs:

Adv.  AM Bodlani and Adv. N Klaasmani
Instructed
by:

T. Noah & Sons
MTHATHA
For
the defendant:

Adv. DV Pitt
Instructed
by:

The State Attorney
MTHATHA
[1]
Plit v Imperial Bank Ltd 2007(1) SA 315 SCA at 318 – 319; Moni
v Mutual & Federal Versekeringsmaatskappy 1992(2) SA
600 at 604G
– 605A; Rule 33(3) of the Uniform Rules.
[2]
Section 10, 12,14 and 35 of the constitution.
[3]
(unreported) Case No. 735/2002, Transkie Division (as then it was)
now Eastern Cape High Court, Mthatha delivered on 20 Agust
2004.
[4]
Neethling’s Law of personality by Neethling, Potheter and
Visser,
1995 Page 130-131.
[5]
Section 1(a) of the Constitution.
[6]
Mtokonya v Minister of Police
2018 (5) SA 22
(CC) Para 15-16; Mighty
Solutions CC t/a Orlando Service Station v Engen Petroleum and
Another
2016 (1) SA 621(CC)
Page 60-63;
[7]
Mtokonya v Minister f Police (supra) Para 18