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[2018] ZAGPJHC 595
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Ndlovu v Minister of Police (33237/2010; A5054/2013) [2018] ZAGPJHC 595 (11 October 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
33237/2010
APPEAL
NO:
A5054/2013
In
the matter between:
ZIPHO
RICHARD
NDLOVU APPELLANT
And
MINISTER
OF
POLICE RESPONDENT
JUDGMENT
Windell
J:
INTRODUCTION
[1]
This is an appeal
against
an award of damages. The appeal is brought on the basis that the
award granted is shockingly low and disproportionate bearing
in mind
what the appellant went through at the hands of the servants of the
respondent.
[2]
The appellant instituted two separate claims against the respondent.
The first claim pertained to his wrongful arrest
and detention and
the second resulted from his assault by the police officers.
[3]
The court
a
quo
ordered the respondent to pay damages to the appellant in the sum of
R 180, 000 comprising of R 100, 000 for deprivation of liberty,
R 60,
000 for pain and suffering and R 30, 000 for future medical expenses
relating to psychiatric treatment
[1]
.
Costs were awarded on a party and party scale which included the
qualifying fees of the appellant’s experts.
THE
FACTS
[4]
The facts that led to the arrest and detention are as follows: The
appellant, at the time of his arrest, was a 34 year old security
controller at Imperial Security Solutions in Bedfordview. He
passed matric and is a Grade B security officer. He earns
a net
salary of R 3, 800 per month. He is married and is the father
of three minor children.
[5]
On Sunday 27 May 2010, at about 00:30, the appellant was arrested on
a charge of ‘business robbery’. He was arrested
without a
warrant by three police officers namely Captain Minnaar (“Minnaar”),
Warrant Officer Luvhimbi (“Luvhimbi”)
and a third unknown
police officer. He was handcuffed and he felt ‘pain in
his heart’ as he was being arrested
for something he did not
know anything about. The handcuffs were fastened tightly on his
wrists and caused him pain.
At the police station he was taken
to the parade room where he was interrogated by Luvhimbi who told him
to tell the truth and
if he did not know anything about the robbery,
“
what
else he knew”.
[6]
Minnaar then arrived and ordered the appellant to sit on the floor.
He was still handcuffed. The two officers then threaded
a plank
between his knees and arms so that he was unable to move. Luvhimbi
was seated in front of him and Minnaar was seated
behind him.
Minnaar took the appellant’s cap and covered his face.
The appellant thought he was going to die and that
he would never see
his family again. Minnaar then put something on his ears. The
appellant was not able to see what it was as Minnaar
was still behind
him. Minnaar then proceeded to shock the appellant. Minnaar
also had another object with which he shocked
the appellant’s
body. The object had a button or knob, which, if pressed would cause
the appellant pain and his whole body
would be shaking until the
button was released. Appellant testified that each “procedure”
would last for about
3 minutes, but he was unable to say how many
times he was shocked. Both police officers kept on swearing at him.
The whole incident
lasted between 30 minutes to an hour. In between
the sets of shocks, he was helpless and was unable to make the police
officers
stop.
[7]
The appellant bit his lip and tongue during the torture and was
bleeding. Before he was taken to the cells, he was told to wash
off
the blood. In the cell, there were many people and he came
across another person who had also been tortured. In the cell
there
were sponges, a toilet and a shower. It was filthy and there was no
privacy and he had to use the toilet while the other
people in the
cell were watching him. He was not taken to court and was not
afforded a lawyer to assist him. He was also
not given proper food,
nor did he receive any medical attention. The appellant was detained
for 4 ½ days.
[9]
On the day of his release he consulted with Dr Merusha Lindi. Upon
examination, Dr Lindi noted two pinpoint scars on both his
earlobes
and found that they were burn marks. He concluded that the appellant
was stunned with an electric device. The appellant
also consulted
with Dr Fine, a psychiatrist. He diagnosed the appellant with
post-traumatic stress disorder and opined that the
appellant required
urgent and intensive psychiatric treatment, consisting of the use of
medical and psychotherapy in the form of
trauma counselling. He
reported that the appellant’s distressing symptoms were
beginning to establish themselves in
a chronic form which would make
psychiatric prognosis less successful. Dr Perumal, a specialist
forensic pathologist, examined
the appellant and found that the
injuries he sustained are consistent with an electrical burn
resulting from application of electricity
in the manner described by
the appellant. He also found that the contractions experienced by the
plaintiff during the assault are
the result of involuntary
contractions of the skeletal muscles upon the electrical insult and
the bite marks on the appellant’s
lips and tongue are typically
the result of uncontrolled biting from the contractions.
[10]
The appellant testified that he is no longer the same person he was
before the incident. He has a persistent painful headache,
experiences bad dreams and developed high blood pressure.
[11]
The respondent denied the torture but Minnaar admitted during
cross-examination that he ordered appellant’s continued
detention to scare him in the hope that he will confess.
[12]
The court
a quo
made an adverse credibility finding against
the respondent’s witnesses and found in favour of the
appellant.
EVALUATION
[13]
The appellant contends that, in assessing the
quantum
the court
a
quo
misdirected itself by failing to take into account the severity of
the assault, the conduct of the police officers, the ulterior
motive
for the arrest and detention and the long term effect the incident is
having on the appellant. It submitted that in light
of the
circumstances the award is shockingly disproportionate with
comparable case law.
[14]
The
test for interference on appeal was set out in
Minister
of Safety and Security v Augustine and Others
(with reference to
Dikoko
v Mokhatla
2006
(6) SA 235 (CC))
[2]
:
“
The test
for interference on appeal is:
'
(S)hould
an appellate Court find that the trial Court had misdirected itself
with regard to material facts or in its approach
to the assessment,
or, having considered all the facts and circumstances of the case,
the trial Court's assessment of damages is
markedly different to that
of the appellate Court, . . .
The first of
these requires analysis of the judgment to establish whether there
have been misdirections regarding either the
proper approach or the
facts taken into account. The second requires the appeal court itself
to broadly assess what it would have
awarded, had it been sitting as
a court of first instance. An appeal court must interfere
if 'the damages are so high
[or low] as to be manifestly
unreasonable'. The underlying principle for this latter
approach must be that the award
is so disproportionate that the
appeal court can infer that the discretion accorded the trial court
was not properly exercised.”
(FOOTNOTES OMITTED).
[15]
The appellant was arrested at work at or about 00h30 in the morning
for no apparent reason. This signifies an ulterior motive
and malice
on the part of the police officers. He was detained for a period of
four days and twelve hours under conditions inconsistent
with human
dignity. He was not brought before a court of law at any time during
his detention and thereafter. He was subjected
to torture with
electric shocks and it has had a profound impact on him.
[16]
The award made by the court
a
quo
in
relation to general damages is insufficient and does not reflect the
value our constitutional society attaches to the right to
liberty,
physical and emotional integrity as well as the right to human
dignity. The learned judge did not take account of
the severity
of the torture and the long duration for which the appellant was
detained without being brought to court. The
arrest and
detention coupled with the torture was clearly aimed at achieving
some objective other than bringing the appellant to
court to stand
trial. The respondents did not apologize and gave no reasonable
explanation for what happened.
[17]
The general approach in the assessment of damages for unlawful arrest
and detention was discussed in the matter of
Minister
of Safety and Security v Tyulu
,
[3]
where the Supreme Court of Appeal held as follows:
“
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
is it 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).”
[18]
In
Masisi
v Minister of Safety and Security
[4]
the court recognized that where an arrest was malicious, the
plaintiff would be entitled to a higher amount of damages than would
be awarded, absent malice.
An
aggravating factor in this appeal is the appellant’s arrest and
detention was not only without probable cause, but also
executed with
the ulterior motive of torturing him to confess about his alleged
complicities in the alleged robbery.
[19]
In working towards a fair and reasonable award, previous comparable
awards in similar cases (adjusted to take account of inflation)
can
serve as a useful guide to the court. As stated before the
appellant instituted two separate claims against the respondent;
the
first claim is for the wrongful arrest and detention and the second
for the assault. As far as the first claim is concerned
the following
cases proved helpful: In the matter of
Stoltz
v Minister of Safety & Security
[5]
the
plaintiff received an award of R 127, 942.22 (today worth R 249, 000)
for having been detained for a period of 2 ½ days
on a charge
of murder. In
Rudolph
and 2 Others v The Minister of Safety and Security and Another
[6]
,
the SCA awarded the appellants damages in the sum of R 100, 000 each
(today worth R 196, 000) for an unlawful arrest and detention
which
lasted for a period of 3 days, 12 hours under similar circumstances
as the appellant. In
Ngcobo
v The Minister of Safety and Security
[7]
the plaintiff, a 53-year old was awarded R 130, 000 (today worth
around R 213, 000) as damages due to an unlawful arrest and detention
for a period of just under 4 days. She was falsely accused of
stealing her step child, whilst the facts borne out in court
that in
fact the child was with his father. Although she was arrested
on a Thursday, she was not brought before court on
the Friday,
without explanation. The arrest and detention affected her
adversely in that she could not eat the food provided
and only ate
the food her daughter brought. She slept on the concrete floor
and the single blanket was so uncomfortable that
she asked her
daughter to bring her a towel to cover herself. The arrest was
a source of humiliation for her and her work
colleagues saw what
happened. In
Minister
of Safety and Security v Seymour
[8]
,
a 63-year old was awarded damages of R 90, 000 (today’s worth
about R 180, 000) following an unlawful arrest and detention
for a
period of 5 days (of which he spent 24 hours in a police cell and the
remainder in a bed at hospital where he had contact
with his lawyer
and family).
[20]
In the
assessment of damages relating to the assault (torture), the matter
of
Themba,
L & Pharamela, C v Minister of Safety and Security
[9]
,
is exactly in point. The facts were as follows: Both plaintiffs,
whilst in detention, were suffocated by the placement of sponges
in
their mouths and electrocuted so that they both thought they were
going to die. The electrocution left marks on their
bodies and
left them feeling deranged. Both suffered medical
sequelae
in the form of sleeplessness and anxiety which required medication.
The two women were awarded R 47 500 (today worth R 160 500)
each. In
Charlie
And Another v Minister of Police
[10]
,
two plaintiffs (respectively 36 and 38 at the time of their arrest
and detention and assault) were each awarded R 230 000 (today
worth R
304, 000) for being assaulted and tortured by the police. First
plaintiff was cuffed at the rear and his ankles were
tied with rope.
He was made to sit on the floor and the legs of the chair were made
to be weaved through his cuffed wrists.
A police officer had a
blue glove in his hand which he stretched and pulled over first
plaintiff’s face from the top of his
head down several times.
The glove blocked his mouth and nose and he could not breathe and
felt like he was suffocating and
became extremely weak. He was
kept in custody in leg irons and cuffs and asked to confess, which he
refused to do.
He was released after 7 days in custody. Second
Plaintiff was released after 8 days. The court found that they
could
have both died during the torture.
[21] During his intention the
appellant in the present matter was subjected not only to assault,
but to torture, and as a result
suffers long term effects. The
conduct of the police officers was shocking, cruel and inhumane and
the award should reflect
society’s abhorrence.
COSTS
[22]
The appellant seeks an order on an attorney and client scale.
[23]
In
Van
Rensburg v City of Johannesburg
[11]
the
court showed its disapproval of the conduct of the traffic officials
of the Johannesburg Metro by making awarding a punitive
cost order
where the conduct complained of
was
described as “high-handed” and not just neglectful.
In
RA
and Others v The Minister of Police
,
[12]
the court held that the matter dealt with the violation of important
constitutional rights and rights of privacy and personal integrity
of
the appellants, and that the case also bears a public interest
element. The full court awarded attorney client costs on the
High
Court scale.
[24]
Counsel for appellant submitted that
the
court should take a dim view of this type of behavior, especially
because the South African Police Service is the publicly appointed
protectors and sentinels of our civilized democratic society. The
police service forms a critical part of ordered society as it
is
there to protect and serve its public. Instead the police officers
conducted themselves in a most reprehensible manner.
[25]
Costs are in the discretion of the court. The conduct of the police
officers was shocking and
goes
against the very ethos of our constitutional society.
I
n
the circumstances of this case it is appropriate for the court to
mark its disapproval of the conduct of the police officers by
ordering a punitive costs order.
[26] In the result the following order
is made:
[26.1] The appeal is upheld.
[26.2] The order is set aside and
replaced with the following:
[26.2.1]
The defendant is ordered to pay the plaintiff the amount of R 390 000
(R160 00 for wrongful arrest and detention,
R 200 000 for
assault and R 30 000 for future medical expenses) together
with interest at
9
% per annum from date of judgment to date of payment;
[26.2.2] Costs on
an attorney client scale, including the qualifying fees of Dr. Lindi
(Medical Doctor), Dr Perumal (Forensic Pathologist)
and Dr. Fine
(Psychiatrist).
________________________________
L.
WINDELL
JUDGE
OF THE HIGH COURT
I
agree
________________________________
B.
MASHILE
JUDGE
OF THE HIGH COURT
I
agree
________________________________
W.
VAN DER LINDE
JUDGE
OF THE HIGH COURT
Attorney
for appellant:
Instructed
by:
Counsel
for respondent:
Instructed
by:
Date
matter heard: 1 August 2018
Judgment
date: 11 October 2018
[1]
Though the judgment states the sum of
R 180, 000, it is clear that the amount should read R 190, 000,
together with interest at
the rate of 15,5%
per
annum
from date of demand
to date of payment
.
[2]
2017(2) SACR 332 (SCA) at [26].
[3]
2009 (5) SA 85
(SCA) paragraph 26 at
93D-F.
[4]
2011 (2) SACR 262 (GNP).
[5]
2006 JDR 0163 (SE).
[6]
2009 ZASCA 39.
[7]
(Unreported NPD 4327/2006), a
judgment delivered on 19 March 2008 by Nicholson J.
[8]
2006 (6) SA 320
SCA.
[9]
Unreported 1997/14968 WLD.
[10]
Unreported 07189/2011 (judgment
delivered on 2012-09-20) SGHC.
[11]
2009 (1) SACR 32 (W).
[12]
Unreported full bench appeal
judgment, dated 21 April 2016, under Gauteng Division Case Number
A315/2015.