Summary of Judgment

1. Introduction

The proceedings were a delictual action for damages arising from the unlawful deprivation of liberty, specifically the arrest and subsequent detention of five municipal employees. The judgment dealt only with the quantum of damages after liability had been conceded.

The parties were five plaintiffs (Ailwei Ronald Gethe, Frans Tebogo Legodi, Ludwick Makwena Senyatsi, Percy Given Sekwane, and Pitso Bernad Mojapelo) on the one hand, and the City of Tshwane Metropolitan Municipality (first defendant) together with the Minister of Safety and Security (second defendant) on the other hand. Although the pleadings framed the claim as arising from an unlawful arrest (attributed to the first defendant) and unlawful detention (attributed to the second defendant), the determination in this judgment concerned the second defendant’s liability for detention.

As to procedural history, the matter served before Tlhapi J on 1 September 2015, when the second defendant conceded the merits 100%. The merits were accordingly settled against the second defendant, and the issue of quantum was postponed sine die. The matter later came before Munzhelele AJ on 29 November 2017 for determination of quantum in respect of general damages, with the second defendant having agreed to pay R10 000 per plaintiff for future medical expenses.

The general subject-matter of the dispute was the appropriate solatium (general damages) for a detention of approximately 20 hours in allegedly humiliating and degrading conditions, including the claimed psychological sequelae.

2. Material Facts

It was common cause that on 5 June 2014 all five plaintiffs were arrested while on duty at the City of Tshwane Metropolitan Municipality. The arrests took place in full view of journalists and co-workers, and were effected without a warrant. The stated basis for the arrests was an allegation that the plaintiffs had committed corruption and fraud, including an allegation that they had defrauded the municipality of hundreds of millions of rands.

It was also common cause that following the arrests the plaintiffs were detained at Pretoria Central Police Station for approximately 20 hours, being released the following day. The second defendant’s liability was framed as relating only to the unlawful detention in the police holding cells.

On quantum, the plaintiffs advanced relatively substantial claims. The first to fourth plaintiffs sought R300 000 each (comprising R200 000 for general damages and R100 000 for future medical expenses). The fifth plaintiff sought R500 000 (comprising R300 000 for general damages and R200 000 for future medical expenses). The plaintiffs also sought costs.

No viva voce evidence was led on quantum. The parties requested the court to rely on the assessment of Dr Amanda Peta, a clinical psychologist who compiled a psychological report on all plaintiffs. The judgment recorded, in summary form, the plaintiffs’ detention conditions and the psychological impacts attributed to the incident, including that the cells were described as filthy and cold, that at least one plaintiff was not adequately dressed for the temperature, and that the plaintiffs were held with violent criminals. The court further recorded that the plaintiffs were described as having suffered psychological effects requiring varying degrees of psychotherapeutic and, in some cases, psychiatric intervention.

A further material fact for purposes of the order was that the second defendant agreed to settle future medical expenses in the amount of R10 000 for each plaintiff, and the court ultimately made an award inclusive of that agreed amount.

3. Legal Issues

The central legal question was the appropriate quantum of damages to award for unlawful detention of approximately 20 hours in the circumstances described, including the extent to which the court should reflect, in a monetary award, the infringement of liberty, dignity, reputation, and the psychological consequences recorded in the report relied on by both parties.

The dispute before the court was primarily a value judgment involving the assessment and application of legal principles to largely common-cause facts. It required the court to exercise a discretion as to what constituted fair and reasonable compensation (as solatium) in the light of comparable awards, the constitutional importance of liberty and dignity, and the particular circumstances of these plaintiffs.

A further issue, consequential to the quantum determination, concerned the appropriate ancillary relief, namely interest (from mora) and costs.

4. Court’s Reasoning

The court approached the assessment of damages on the basis that an award for unlawful detention must take account of all relevant factors and that the circumstances of the deprivation of liberty are central. In setting out the applicable approach, the court referred to the treatment of relevant considerations in Mathe v Minister of Police (33740/14) 2017 ZAGPJHC 133, where Opperman J quoted with approval from other decisions on the factors that may play a role in determining damages for deprivation of liberty. The judgment listed factors including, among others, the circumstances and nature of the detention, the presence or absence of malice, harsh conduct, duration, the plaintiff’s status and standing, the extent of publicity, the presence or absence of an apology or satisfactory explanation, comparable awards, infringements of personality interests such as honour and good name, the high value of liberty, inflation, whether the plaintiff contributed to the misfortune, and the effect on the public purse.

The court also had regard to the constitutional standard for detention conditions, specifically referring to section 35(2)(e) of the Constitution of South Africa, which recognises a detained person’s right to conditions of detention consistent with human dignity. This constitutional framing informed the court’s evaluation of the significance of the asserted humiliating and degrading conditions.

In evaluating quantum, the court emphasised the purpose of compensation in this context. It relied on authority indicating that the primary purpose is not to enrich an aggrieved party but to provide a measure of solatium for injured feelings. In that regard, the court referenced Minister of Safety and Security v Tlyulu 2009(5) SA 85 SC4 (at para 26) and Minister of Safety and Security v Seymour 2006(6) SA 320 SCA. The court further noted that comparable matters are a useful guide, while cautioning that such cases serve only as guidance, with reference to Minister of Safety and Security v Seymour 2017 All SA 558 SCA (para 17), as cited in the judgment.

The court then considered a range of earlier awards in detention matters, treating them as indicative of general patterns. It referred to, among others, Rudolph v minister of safety and security 2009(5) SA 94 SC4, Olivier v Minister of Safety and Security and another 2009(3) SA 434(W), Gobuamang v Minister of Police (2011) ZAGPJHC 100; 2009/5959(26 August 2011), Sithole v Minister of Police and another 2016 ZAGPPHC 393 {27 May 2016), and Matsietsi v Minister of Police {A-3103/2015) 2017 ZAGPJHC 29(20 February 2017). These cases were used to locate the present matter within a spectrum of awards reflecting different periods of detention and differing personal circumstances.

Applying these principles to the facts recorded as common cause, the court accepted that all plaintiffs were detained overnight for about 20 hours in filthy and humiliating conditions, and that the detention had a traumatic effect requiring psychotherapeutic intervention. The court also treated as relevant that the plaintiffs were professional and educated, held good names in their communities, and that their arrest occurred publicly (in view of journalists and co-workers), which the court regarded as part of the humiliating circumstances surrounding the incident.

Despite these factors, the court arrived at an award substantially lower than what the plaintiffs sought. Taking into account the plaintiffs’ circumstances, the duration of detention, the cited comparable awards, and the agreed contribution for future medical expenses, the court determined that a fair and reasonable amount was R40 000 per plaintiff, expressly stated to be inclusive of the future medical expenses agreed upon. The court broke this down into R30 000 for general damages and R10 000 for future medical expenses for each plaintiff.

5. Outcome and Relief

The court ordered the second defendant to pay each plaintiff R40 000, comprising R30 000 general damages and R10 000 future medical expenses (as agreed). The court further ordered interest at 15.5% per annum from the date the second defendant was placed in mora.

The court also ordered the second defendant to pay the costs of suit on the party and party scale, including the costs of counsel.

Cases Cited

Mathe v Minister of Police (33740/14) 2017 ZAGPJHC 133.

Ntshingana v Minister of Safety And Security (unreported) 14 October 2003 Eastern cape Division(2001/ 1636).

Phasha v Minister Of Police (unreported judgment by Epstein Al dated 23 November 2012 South Gauteng High Court case no 2011/25524.

Minister of Safety and Security v Tlyulu 2009(5) SA 85 SC4.

Minister of Safety and Security v Seymour 2006(6) SA 320 SCA.

Minister of Safety and Security v Seymour 2017 All SA 558 SCA.

Rudolph v minister of safety and security 2009(5) SA 94 SC4.

Olivier v Minister of Safety and Security and another 2009(3) SA 434(W).

Gobuamang v Minister of Police (2011) ZAGPJHC 100; 2009/5959(26 August 2011).

Sithole v Minister of Police and another 2016 ZAGPPHC 393 {27 May 2016).

Matsietsi v Minister of Police {A-3103/2015) 2017 ZAGPJHC 29(20 February 2017).

Legislation Cited

Constitution of South Africa, section 35(2)(e).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, having regard to the circumstances of the detention, the plaintiffs’ personal standing and the humiliating conditions described, the psychological impact recorded in the report relied upon, the constitutional value of liberty and dignity, and awards in comparable cases, a fair and reasonable solatium was R30 000 in general damages for each plaintiff. Together with the parties’ agreed amount of R10 000 per plaintiff for future medical expenses, the total award was R40 000 per plaintiff.

The court further held that the second defendant was liable for interest at 15.5% per annum from mora and for the plaintiffs’ party and party costs, including counsel’s costs.

LEGAL PRINCIPLES

Awards for unlawful detention are discretionary and fact-sensitive, requiring consideration of the full circumstances of the deprivation of liberty. Relevant considerations include the conditions and duration of detention, the plaintiff’s status and standing, the publicity accompanying the deprivation of liberty, the presence or absence of aggravating features (such as harsh conduct or improper motive), and the infringement of personality interests (including dignity, honour, and reputation), together with broader constitutional values.

Compensation for unlawful detention is not aimed at enrichment, but at providing an appropriate solatium for injured feelings and the infringement of liberty and dignity. Comparable case awards may be used as a guide, but they are not determinative, and the court must ultimately fix an amount that is fair and reasonable in the particular case.

The constitutional right of detained persons to conditions of detention consistent with human dignity, as reflected in section 35(2)(e) of the Constitution of South Africa, forms part of the evaluative framework within which a court assesses the seriousness of detention conditions when determining quantum.