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[2018] ZAECMHC 2
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Mkwati v Minister of Police (2902/2013) [2018] ZAECMHC 2 (23 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO. 2902/2013
In
the matter between:
ONELE
MKWATI
Plaintiff
and
THE
MINISTER OF POLICE
Defendant
JUDGMENT
MBENENGE
JP:
[1]
At inception this action was for recovery of damages for unlawful
arrest and detention, and for malicious prosecution against
the
Minister of Police (then cited as the first defendant) and the
National Director of Public Prosecutions (the NDPP, then cited
as the
second defendant).
[2]
It was alleged that the plaintiff had been involved in the commission
of robbery with aggravating circumstances. Upon his arrest,
on 29
April 2013, so it was further alleged, the plaintiff was detained and
released on 30 May 2013, whereafter, (on 28 October
2013), the
charges he had been facing were withdrawn.
[3]
In the course of time, liability was conceded, with the result that
on 26 October 2017 the second defendant consented to an
order for
payment of R30 000. 00 as and for damages for malicious
prosecution.
[4]
The issue that remains for me to determine is that of the
quantum
of damages for unlawful arrest and detention, in respect of which the
lis
is between the plaintiff and the Minister of Police (the
defendant).
[1]
[5]
In pursuit of the claim, the plaintiff testified that on 29 April
2013 whilst walking from a school meeting he was arrested
and put in
the back of a canopied police van with his arms handcuffed from the
back. The van was driven in a rough manner,
[2]
causing the plaintiff to lose balance and, from time to time, to be
thrown around and sometimes hit himself against the van’s
body
panel. When he wanted to know why he had been arrested, the police
said they were looking for his brother, who was eventually
apprehended and also put in the back of the van.
[6]
The handcuffs were only removed from the plaintiff upon arrival at
Ngqeleni Police Station. He was detained in a filthy cell
and
subjected to torture by cell inmates
[3]
he
found already there. The blanket he was supplied with was dusty. At
times the blanket would be snatched from him, and he would
end up
leaning against the wall for the duration of the night for warmth.
The mattresses they were supplied with were also
filthy. The
cell toilet which was within view and proximate was blocked, causing
an unbearable stench. Because of the
stench that pervaded the
cell, he lost appetite and hardly ate. It occurred that an
inmate would relieve himself whilst meals
were being partaken of.
The cell was not sufficiently ventilated, despite the fact that the
inmates would smoke dagga and
tobacco. At no point were the
cells ever cleaned. When being supplied with food (morvite
porridge in a plastic container),
the police official concerned would
simply open the cell door and throw the food on the floor without
even entering the cell.
At the time of his arrest and detention
the plaintiff had been doing standard 8. He could not attend
school for the duration
of the detention.
[7]
It emerged during cross-examination that the plaintiff was
incarcerated at Ngqeleni Police Station for five days, whereafter
he
was transferred to Wellington Correctional Centre, Mthatha to await
his trial, upon his first appearance in court. No testimony
was given
of the conditions that prevailed at Wellington Correctional Centre,
hence the plaintiff was released after spending another
eighteen
days.
[8]
Captain Qezu testified on behalf of the defendant. He is Station
Commissioner at Ngqeleni Police Station. He saw the plaintiff
at some
stage whilst he had been visiting the cell. As far as he was
concerned the blankets were clean; fresh blankets would be
supplied
at intervals of two months. There had been no shortage of blankets.
The cell toilets were not blocked. Had that happened,
the prisoners
would have been moved to another cell whose toilet was in a working
condition. Captain Qezu denied that the awaiting
trial inmates smoked
in the cells, adding that smoking is prohibited. He also said there
were constant police visitations to the
cells.
[9]
From what has been said above, the version of Captain Qezu and that
of the plaintiff concerning the circumstances in which the
plaintiff
was detained are mutually destructive.
[10]
In
National
Employees’ General Insurance v Jagers
[4]
it was held:
“
It
seems to me, with respect, that in any civil case, …where
there are two mutually destructive stories, [the party who bears
the
onus] can only succeed if he satisfies the Court on a preponderance
of probabilities that his version is true and accurate
and therefore
acceptable, and that the other version advanced by the defendant is
therefore false or mistaken and falls to be rejected.
In deciding
whether that evidence is true or not the Court will weigh up and test
the plaintiff’s allegations against the
general probabilities.
The estimate of the credibility of a witness will therefore be
inextricably bound up with a consideration
of the probabilities of
the case and, if the balance of probabilities favours the plaintiff,
then the Court will accept his version
as being probably true. If
however the probabilities are evenly balanced in the sense that they
do not favour the plaintiff’s
case any more than they do the
defendant’s, the plaintiff can only succeed if the Court
nevertheless believes him and is
satisfied that his evidence is true
and that the defendant’s version is false.”
[11]
Captain Qezu admitted under cross-examination that he had been
sitting in court when the plaintiff was testifying in chief
and being
cross-examined. This would, in and by itself, have had the effect of
detracting from the valve of his testimony.
In any event,
at all the relevant twists and turns of his cross-examination Captain
Qezu floundered. He was hard put to explain
why the salient features
of the defendant’s case were not put to the plaintiff.
[5]
[12]
Captain Qezu’s assertion that there were regular police
visitations to the cell was not backed up by any document such
as,
for example, the occurrence book for the period in question. Nor was
reference made to any document in support of the assertion
that
blankets were tidied at intervals of two months by the “
SCN
unit
”. None of the persons alleged to have supplied fresh
blankets or swept the cell was called to testify. The assertion that
the person who supplied the food to the inmates merely threw the
plate on the floor without entering the cell could have been gainsaid
by the calling of one of the officials who fed the inmates during the
period in question, which was not done.
[13]
At this juncture, we should remind ourselves of the following remarks
by the Constitutional Court in
President
of the RSA v South African Rugby football Union
[6]
:
“
The
institution of cross-examination not only constitutes a right, it
also imposes certain obligation. As a general rule it is essential,
when it is intended to suggest that a witness is not speaking the
truth on a particular point, to direct the witness’s attention
to the fact by questions put in cross-examination showing that the
imputation is intended to be made and to afford the witness
an
opportunity, while still in the witness-box, of giving any
explanation open to the witness and of defending his or her
character.
If a point in dispute is left unchallenged that the
unchallenged witness’s testimony is accepted as correct. This
rule was
enunciated by the House of Lords in Browne v Dunn and has
been adopted and consistently followed by our courts.”
[14]
In light of the aforegoing, it is safe for me to reject the version
of the defendant in so far as it is not consistent with
that of the
plaintiff regarding the circumstances that beset the plaintiff’s
detention. I find no fault with the demeanour
of the plaintiff. He
appeared to me to be honest, reliable and credible as a witness.
[15]
My summation of the factual background is therefore as follows:
The plaintiff was arrested whilst walking from a school
meeting. He
was put 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 Ngqeleni Police cells where he was incarcerated for five
days, the cell was dirty and smelly, principally
because of the
proximity of a blocked toilet. The plaintiff also suffered at the
hands of cell inmates who ill-treated him, including
forcing him to
smoke dagga. The cell was not properly ventilated. Food was thrown at
cell inmates from outside the cell, as if
animals in a cage were
being fed.
[16]
Let me now turn to consider an appropriate and fair award of the
damages to which the plaintiff is entitled.
[17]
Courts have been warned to be wary of the primary purpose in the
assessment of damages for unlawful arrest and detention which
is not
to enrich the aggrieved party but to offer him or her some much
needed
solatium
for his or her injured feelings, but at the same time to be astute in
ensuring that the awards they make 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.
[7]
[18]
It is also incumbent on me to give heed to the principle recently
enunciated by the Supreme Court of Appeal that the amount
of the
award is not susceptible of precise calculation; it is arrived at in
the exercise of a broad discretion.
[8]
In
Phillip
v Minister of Police and Another
[9]
it was observed, in relation whether the court should calculate
the award on a daily tariff or a single all-inclusive award,
that the
nature of the compensation and the inherent variables applicable in
each case would be minimised by trying to place an
average daily
tariff on such a determination. The court went on to state that
“
[t]he
fact that each case must be considered on its own merits militates
against a so-called average flat rate per day
”
and that “
a
single all-inclusive award would appropriately address and express
all the factors to be considered
.”
[19]
The circumstances surrounding the plaintiff’s arrest,
especially
en route
to the police station were quite an
ordeal. The detention at Ngqeleni Police Station, under squalid
circumstances, was inhumane
and degrading in the extreme. The
subsequent detention at the Wellington Correctional Centre does not
seem to have been beset
by the woes that prevailed at Ngqeleni, as
indeed the plaintiff said nothing anent thereto in his testimony.
However, even
during that lengthy period, the plaintiff was deprived
of his liberty, and separated from friends and family.
[20]
Having regard to all the above as also previous awards, including
those made in
Mtola
v Minister of Police
[10]
and
Nel
v Minister of Police
,
[11]
a fair and reasonable
award in the circumstances of this case is R560 000. 00.
[21]
There is no reason why costs should not follow the result.
[22]
The order that I make is the following:
(a)
The defendants shall pay the plaintiff damages in the sum of
R560 000.
00 consequent upon the plaintiff’s arrest and
detention.
(b)
The defendant shall pay interest on the amount referred to in (a)
above at the prescribed
legal rate with effect from today to date of
payment.
(c)
The defendant shall pay the plaintiff’s costs of the action,
such costs to bear interest
from a date 14 days of the Taxing
Master’s allocatur to date of payment.
________________________
S
M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
Counsel
for the plaintiff
:
M N
Hinana
Instructed
by
: Z
Ntelezi & Co.
MTHATHA
Counsel
for the defendant
:
S A
Magadla
Instructed
by
: The
State Attorney
MTHATHA
Date
heard
:
24 October,
and 04 to 05 December
2017
Date
Judgment delivered
: 23 January 2018
[1]
Hence the process heading
mentions one defendant.
[2]
The ride was characterised by
fast driving and random hard braking.
[3]
He was made to spin on soapy,
slippery surface, whilst being slapped, kicked and forced to smoke
tobacco by the inmates.
[4]
1984 (4) SA 437 (E)
[5]
Namely, that the toilet was not
blocked; that inmates smoked dagga and tobacco, and smoking was
prohibited; that the toilet was
not in view and in close proximity
of the inmates even when partaking of their meals; that the
cells were not filthy and
smelly; that fresh blankets were supplied
every two months
[6]
2000 (1) SA 1
(CC) at para [61]
[7]
Minister of Safety and
Security v Tyulu
2009
(5) SA 85
(SCA) at 93 d-f
[8]
Minister of Safety and
Security v Augustine
C811/2016)
[2017] ZASCA 59
(24 May 2017); 2017 (2) SACR 332 (SCA)
[9]
Unreported decision of the then
Limpompo High Court under case numbers 457 and 676/2012 by Lamminga
AJ
[10]
Case No. CA 23/2016 by Smith J
(concurred in by Mbenenge ADJP (as he then was)
et
Brooks J) delivered on 30 June 2017
[11]
Case No. CA 62/2017 by Mbenenge
JP (concurred in by Mageza AJ) delivered on 23 January 2018.