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[2018] ZALMPPHC 58
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Ferdinand v Minister of Police (628/2014) [2018] ZALMPPHC 58 (7 March 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
(1)
NOT REPORTABLE
(2)
OF INTEREST TO OTHER JUDGES
(3)
REVISED
CASE NO: 628/2014
7/3/2018
In
the matter between:
KOEN
CHRISTIAAN
FERDINAND
PLAINTIFF
and
THE
MINISTER OF
POLICE
DEFENDANT
JUDGMENT
MAKGOBA
JP
[1] This
is an action for damages consequent to an unlawful arrest and
detention.
The Plaintiff instituted the action against the Defendant
claiming damages arising out of his arrest and detention by members
of
the South African Police Service, acting within the course and
scope of their employment with the Defendant. The arrest of the
Plaintiff occurred in Polokwane on the 8 August 2012.
[2] The
merits and quantum of damages in this case were separated in terms of
Rule 33 (4)
of the Uniform Rules of Court. On the 20 April 2015 I
gave judgment in favour of the Plaintiff on the merits and the issue
of quantum
was postponed
sine die.
The trial on quantum resumed on 5
February 2018 and was concluded on 6 February 2018. The present
judgment is in respect of the
quantum of damages only.
[3] The
Plaintiff instituted the action for damages in two heads:
3.1.
General
damages for unlawful arrest and detention, which encompass impairment
of dignitas and fama, psychological trauma, emotional
shock and
contumelia; deprivation of personal liberty or freedom of movement.
3.2.
Loss
of income.
[4] The
Defendant, through his legal representative conceded that the
Plaintiff had
suffered general damages and suggested that a global
amount of R 200 000.00 would be appropriate to compensate the
Plaintiff. However,
regarding damages for loss of income, Defendant
contended that the Plaintiff had not suffered any damages in any
amount or at all.
Factual Background
[5] The
Plaintiff was a practicing attorney in Polokwane for almost 16 years
when
he was arrested on 8 August 2012 by certain police officials.
The Plaintiff obtained his LLB degree in 1994 at the University of
Pretoria and thereafter attended a six months full-time law school
for candidates that wish to qualify as attorneys. He commenced
employment as a candidate attorney on 1 July 1995 and this training
period was completed at the end of June 1996 whereafter he
was
admitted as an attorney.
[6] The
Plaintiff started to practise as an attorney and a partner in a law
firm
as from July 1996 until the end of the year 2004 in Polokwane.
He established his own firm at the beginning of 2005 and continued
to
practise as such up until the date of the incident, that is 8 August
2012.
[7] The
Plaintiff had a certain client, one Peggy Mokoena ("Mokoena")
who
was doing business as a cash loan operator and she employed
Plaintiff to draft Acknowledgement of Debt documents which Mokoena's
clients had to sign in the normal course of business activities.
These business activities of Mokoena caught the attention of the
South African Police Service for one reason or another, and criminal
investigations into her activities followed. The Plaintiff
was also
appointed as the attorney of Mokoena representing her on these
criminal proceedings.
[8] On
the morning of 8 August 2012 the Plaintiff was working at his offices
when
he received a telephone call from Mokoena indicating to him that
members of the South African Police Service were present at her
home
and were busy searching the premises of her home, and she requested
Plaintiff's assistance. The Plaintiff immediately went
to the home of
Mokoena and upon his arrival, there were a number of high-ranking
police officials at the premises, and all, but
one, were women. Upon
his arrival, and inside the house, he confronted the most senior
officer and requested to see a copy of the
search warrant in terms of
which the officers were authorised to search the premises of Mokoena.
The officer indicated to him that
she would talk to him at a later
stage and requested him to leave the house. He did so.
[9]
While standing outside the house, the officer approached the
Plaintiff and indicated
to him that she was arresting him and
immediately handcuffed his hands behind his back. This happened at
15h00. When the Plaintiff
enquired as to the reason for his arrest,
she indicated to him that it would be communicated to him at a later
stage.
[10] The
Plaintiff was thereafter driven to the Polokwane police station, but
en route to the Polokwane
police station the driver of the vehicle
was apparently instructed to take the Plaintiff to the Botlokwa
police station, a police
station which is situated about 40 km
outside Polokwane, on the way to the town Makhado (Louis Trichardt.)
The motorcade transporting
him and other arrestees was driven at an
excessive high-speed with flashing blue lights. The Plaintiff
testified that he had the
impression that the drivers of the
motorcade intended to drive in a very demonstrative manner in order
to draw maximum attention.
He also testifies that he feared for his
life as the driver drove recklessly. He felt humiliated and afraid,
as being an attorney
he heard lots of stories by clients on what may
transpire in the police cells. He has never been in such a situation
and growing
up in a protected family environment, the never had any
formal training (military or otherwise) to protect himself or any
training
on how to deal with such a potential situation. He had no
idea, save for the stories of clients he represented, of what to
expect.
[11] Upon
arrival at the police station, the Plaintiff was met by his attorney,
Mr Andries Rheeder,
who told him that he was being charged for fraud
and that, for that reason, that the granting of bail could only be
considered
by a Court of law and not by the investigating officer
investigating the case. Mr Rheeder handed a R 100.00 note to the
Plaintiff,
indicating to him that he should hand this over to inmates
in the cells in order to ensure that he is not intimidated or
otherwise
harmed in the cells.
[12] The
Plaintiff concealed the money on his body and once inside the cell
discovered that he
was being locked up with nine inmates. On
detention in the cell, the other inmates threateningly demanded money
and the Plaintiff
handed over the R 100.00 to them. They were not
satisfied at that stage that the Plaintiff handed over all money and
demanded to
search the Plaintiff. The Plaintiff undressed and only
remained clothed in underpants. One inmates satisfied himself that he
had
no further money on his person by drawing away his underpants and
looking inside his underpants. He was humiliated and afraid. The
Plaintiff described the appalling conditions in the cell. He had to
sleep in front of the toilet and wash place, which were a bucket,
and
every time a cellmate needed to use the facility they had to climb
over him to such an extent that he could not sleep at all.
[13] On the
following date, 9 August 2012, which was an official holiday, Women's
Day, the Plaintiff
was summoned to the charge office where a certain
police officer finalised certain administrative tasks, regarding
Plaintiff's
arrest. During this discussion, a police official, for
the first time, told the Plaintiff that he was charged with fraud but
could
not give any further information to the Plaintiff. On the
following day, Friday, 10 August 2012, the Plaintiff was once again
transported,
at high speed in the same demonstrative and reckless
manner, with flashing blue lights, from the Botlokwa police station
to the
Polokwane Magistrate's Court to be charged and for the purpose
to bring a bail application. When the Plaintiff eventually appeared,
the Court was full of his colleagues who shunned him and he again
felt humiliated and disgraced, the Magistrate that was presiding
over
the case, postponed the case to Monday, 13 August 2012, citing his
unwillingness to possibly have to make an adverse finding
against an
attorney regularly appearing before him, after which he recused
himself from the proceedings.
[14] The
Plaintiff was returned to the Botlokwa police station immediately,
once again transported,
at high speed in the same demonstrative and
reckless manner, with flashing blue lights and remained incarcerated
for the rest of
the weekend. The Plaintiff was once again taken to
the Polokwane Magistrate's Court on Monday, 13 August 2012, again
transported,
at high speed in the same demonstrative and reckless
manner, with flashing blue lights for a bail application, and bail of
R 10
000.00 was eventually granted to him. The Plaintiff appeared on
several occasions afterwards in Court but eventually the charges
were
withdrawn against him on 5 July 2013.
[15] The
events were published on nine occasions in different newspapers, some
of the newspapers
with a local distribution in Polokwane but
newspapers, viz, Beeld and Sowetan, are newspapers with a national
footprint. Apart
from this, all the newspapers also published online
on the internet and are accessible from anywhere in the world. These
newspapers
were published between 8 August 2012 up until 10 July
2013.
[16] The Plaintiff
was identified by name and photo on several occasions in the
newspaper reports which
were handed in as evidence during the trial.
It was further stated in the media statement that the lawyer of
Mokoena lured a farmer
into a fraudulent business deal.
[17] There was a
further publication of the Plaintiff in a circular "Legalbrief
Today" which is
a circular circulated countrywide amongst
members of the legal profession and the following is stated in the
second paragraph of
the publication:
"Former chair of the
National Freedom Party in Limpopo, Mulala Mokoena has appeared in
Polokwane Magistrate's Court alongside
her lawyer Chris Koen and
business partner Johan Lambrecht. They are accused of defrauding
several people of thousands of rands.
"
The general approach in the
assessment of damages for unlawful arrest and detention.
[18] In this
matter the Plaintiff suffered an arbitrary deprivation of personal
liberty and was humiliated
and traumatised by virtue of his unlawful
arrest and detention. He has furthermore suffered patrimonial loss in
the form of loss
of income as a practising attorney whose practice
was closed down as a direct result of this arrest and detention as
well as the
wide publication thereof in the public domain.
[19] In
deprivation of liberty the amount of damages is in the discretion of
the Court. Factors which
can play a role are the circumstances under
which the deprivation of liberty took place; the presence or absence
of improper motive
or
malice
on
the part of the Defendant; the harsh conduct of the Defendants; the
duration and nature of the deprivation of liberty; the status;
standing; age; health and disability of the Plaintiff; the extent of
the publicity given to the deprivation of the liberty; the
presence
or absence of an apology or satisfactory explanation of the events by
the Defendant; and awards in previous comparable
cases.
[20] Section
35(2)(e) of the Constitution of the Republic of South Africa provides
that everyone who
is detained, including every sentenced prisoner has
the right to conditions of detention that are consistent with human
dignity.
Therefore other factors that play a role are the fact that
in addition to physical freedom, other personality interests such as
honour and good name as well as constitutionally protected
fundamental rights have been infringed; the high value of the right
to physical liberty; the effects of inflation; the fact that the
Plaintiff contributed to his or her misfortune; the effect an
award
may have on the public purse, and, according to some, the view that
the
actio iniuriarum
also
has a punitive function.
[21] The
above stated factors have been extracted from various case law and
set out by the authors
of
Visser &
Potgieter Law of Damages Third Edition on pages 545 - 548.
[22] The
purpose of an award of damages in the context of a matter such as the
present is a process
in which one seeks to compensate a claimant for
deprivation of personal liberty and freedom and the attendant mental
anguish and
distress. In
Masisi v
Minister of Safety and Security
2011 (2) SACR 262
(GNP)
it
was held that the right to liberty is an individual's most cherished
right, and one of the fundamental values giving inspiration
to an
ethos premised on the freedom, dignity, honour, and security. That
its unlawful invasion therefore struck at the very fundamental
of
such ethos.
[23] The
Supreme Court of Appeal held as follows in
Minister
of Safety and Security v Tyulu
2009 (5) SA 85
(SCA) paragraph 26 at
93 D - E:
"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 para 17;
Rudolph and Others v Minister of Safety and Security and Another
2009
(5) SA 94
(SCA) ([2009] ZASCA 39) paras 26
-
29).
"
[24]
In
Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA)
Nugent
JA stated at paragraph 17:
"The assessment of awards
of general damages with reference to awards made in previous cases is
fraught with difficulty. The
facts of a particular case need to be
looked at as a whole and few cases are directly comparable. They are
a useful guide to what
other Courts have considered to be appropriate
but they have no higher value than that.
"
At page 326 paragraph 20 the
learned Judge went on to express the view that when assessing damages
for unlawful arrest and detention
Courts are not extravagant in
compensating the loss as there are many legitimate calls on the
public purse to ensure that other
rights that are no less important
also receive protection.
[25] I do
not understand the Supreme Court of Appeal to be suggesting that
heavier amounts for damages should
not be awarded in deserving cases,
neither do I see it as encouraging infringement of human rights. The
Courts will always be guided
by the facts of each case and not taking
its eyes off the purport and object of the protection of such rights
as enshrined in the
Constitution. In
casu,
I shall be guided
by the particular facts and circumstances of the case in determining
the appropriate amount of damages.
[26] Claasen J
held as follows in
Liu Quin Ping v
Akani Egoli (Pty) Ltd t/a Gold Reef City Casino
2000 (4) SA 68
(WLD)
at 86 D:
"Deprivation of one's
liberty
is
always a serious
matter. The contention is reflected in fact that our Constitution has
entrenched the freedom and security of the
person as part of the Bill
of Rights. Section 12 of the Constitution of the Republic of South
Africa Act 108 of 1996 states the
following:
" (1 ) 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)
not to be detained without trial
"
It is important to note that in
the aforementioned case, as in the present case we are also dealing
with the violation of important
constitutional rights, including the
Plaintiffs rights to human dignity, freedom and security of the
person, freedom of movement
and to conditions of detention that are
consistent with human dignity.
[27] Where a
right is said to be so important that it has been afforded
constitutional protection,
any damages to be awarded should reflect
that importance. In considering quantum, sight must not be lost of
the fact that the liberty
of the individual is one of the fundamental
rights of a man in a free society, which should be jealously guarded
at all times and
there is a duty on the Courts to preserve this right
against infringement. Unlawful arrest and detention constitute a
serious inroad
into the freedom and rights of an individual.
See:
Thandani v Minister of Law
and Order
1991 (1) SA 701
(ECD) at 707 A.
The present case
displays a reckless disregard of the rights of the Plaintiff by
members of the South African Police Service.
Damages for unlawful arrest and
detention
[28] The
Plaintiff in the present case was detained without a shred of
justification and detained
in what was very humiliating, fearful and
degrading circumstances entailing that he had to strip virtually
naked to undergo a body
search by other inmates in the cell, without
being able to defend himself. Quite apart from the normal common law
rights to personal
freedom, liberty, dignity and reputation, a number
of constitutional rights as outlined above were infringed. The
Plaintiff did
absolutely nothing wrong. He was arrested while
performing his professional duties as an attorney. The conduct of the
police in
effecting the arrest of the Plaintiff in those
circumstances amounts to interference with not only the Plaintiff's
rights but also
the public's right to legal representation.
[29] It is
significant to note that the unlawful arrest and detention of the
Plaintiff and subsequent
publicity thereof has resulted in a number
of personal
sequelae ,
some
of which are the following:
29.1.
A
practicing attorney is wholly dependent on his good name and
reputation in society to draw and retain clients. The Plaintiff
testified, uncontested, that within a month after the publication of
the arrest in various news media, he had to close down his
lucrative
legal practice and that he had to look for employment and eventually
had to relocate to Mosselbay from where he had to
rebuild his life.
29.2.
News
of his arrest and detention quickly spread to Mosselbay when he had
to appear in the debtor's Court (Section 65 proceedings)
in Mosselbay
to answer to creditors' claims in his practice in Polokwane when he
had to close down following the events. He had
to explain in detail
why he was in financial ruin in open Court in front of new
colleagues.
29.3.
The
Plaintiff is entitled to an award that would restore his good name
and reputation in society, especially given the fact that
the arrest
and detention was outrageous and with no apparent justification.
[30] It is for
all the above reasons that I am of the view that Plaintiff is
entitled to a profound
and substantial award as general damages for
unlawful arrest and detention. Counsel for the Defendent is of the
view that an amount
of R 200 000.00 is appropriate. I differ slightly
with Counsel in this regard. In my view a fair and reasonable amount
is R 250
000.00.
Damages for loss of income
[31] The
Plaintiff testified that he had to close down his legal practice as a
direct result of this
arrest and detention and the wide publication
thereof in the public domain. The Plaintiff had to relocate to
Mosselbay in an effort
to rebuild his reputation and professional
career. At Mosselbay he could not build a successful own legal
practice. He worked under
Heyns Attorneys for only five months and
quit the legal practice when he realised that he could not easily
recover from his loss
of dignity and reputation. He is presently
employed as a legal advisor at a firm of debt counselors earning a
salary of R 30 000.00
per month.
[32] A practicing
attorney is wholly dependent on his good name and reputation in
society to draw
and retain clients. The Plaintiff lost clients and
closed down his practice in Polokwane. At a new place in Mosselbay it
could
not be easy for Plaintiff to build new clientele hence he
ceased practicing law as an attorney and opted to accept another
employment
at a firm of debt counselors at a reduced income.
[33] The
Plaintiff presented evidence of three experts, Nicolene Kotze, an
industrial psychologist,
Zelda Buitendag, a clinical psychologist and
Gerard Jacobson, an actuary, in order to proof his loss of income. On
the other hand
the Defendant also presented evidence of three
experts, an industrial psychologist, clinical psychologist and an
actuary to counter
the expert evidence of the Plaintiff.
[34] The two
clinical psychologist Zelda Buitendag for the Plaintiff and Tebogo
Kgole for the Defendent
concur in their joint minutes that:
1) The Plaintiffs
self-confidence is low and his public image is tarnished.
2) He suffers from
moderate chronic Post Traumatic Stress Disorder (PTSD).
3) The incident
affected the Plaintiff's financial, social and professional stance in
society.
4) They recommend that
the Plaintiff gets intervention and treatment from a Clinical
Psychologist (19 sessions
at cost of+/- R 1200.00 per session) and
Psychiatrist (at R 1800.00 per session) to assist him in recovering
from the psychologic
I difficulties that he experiences.
[35] The
industrial psychologist, Nicolene Kotze for the Plaintiff and Lance
Marais for the Defendant
agree that the Plaintiff would have been
able to continue in his self-employed capacity as a practicing
attorney but for the incident
of arrest and detention. They agree
further that the Plaintiff would have been able to continue working
until age 65-70 as there
is no indicated retirement age for
self-employed individuals.
[36] Nicolene
Kotze opines that self-employed people determine their income by
actively marketing
their services, networking and hard work. She is
of the view that the Plaintiff could very well have expanded his
practice even
further and could then have earned up to R 50 000.00
per month. This is more or less on par with the salaries for an
attorney with
more than 18 years of service, as indicated by Robert
Koch (Quantum Yearbook 2016). As such the expert is of the view that
from
the income of R 30 000.00 the Plaintiff earned at the time of
his arrest and detention in August 2012, he could likely have
increased
his income to earn approximately R 50 000.00 per month by
2016 (20 years since he has being admitted as an attorney). Same
would
then have increased with annual inflationary increases.
[37] Nicolene
Kotze, the industrial psychologist, explains in detail that for
purposes of the calculation
of damages, that it can safely be assumed
that the Plaintiff earned an amount of R 30 000.00 per month as at
date of arrest. She
gave a full explanation of that on pages 10 to 13
of her report. Both the industrial psychologist as well as the
clinical psychologist,
namely Zelda Buitendag, testified that the
Plaintiff still suffers from post-traumatic stress syndrome which
will have an adverse
impact on the performance of the Plaintiff in
future, curtailing the income earning potential of the Plaintiff.
[38] Of further
significance the industrial psychologist, Nicolene Kotze indicated
that due to tarnished
reputation and his age, i.e 47 years, as well
as that he now resides in a different town where he does not know as
much people
as back in Polokwane, he will struggle to start his own
practice again. The psychologist, Lance Marais for the Defendant
agrees
with Nicolene Kotze that the Plaintiff will in all
probabilities remain in his current employ or similar employment as
legal advisor,
earning on par with his current salary of R 30 000.00
per month, with no added benefits, plus annual inflationary
increases.
[39] Mr Lance
Marais opined in his report that:
"The claimant has probably
retained his pre-incident employability, as well as earning
potential"
On the basis of this statement,
the actuary employed by the Defendant to calculate the loss of
income, Mr Gert du Doit, assumed
no loss of income. Mr Marais later
conceded to the Court, that there might be a loss of income and as a
result of his misunderstandings,
did not base his report on the
correct facts. I reject Mr Marais' version in so far as same differs
with that of Nicolene Kotze.
The latter's report and evidence is
accepted as the basis on which the Plaintiffs loss of income should
be calculated.
[40] Mr Gerard
Jacobson, the actuary, calculated the loss of the Plaintiff on the
basis of the abovementioned
assumptions to be R 3 815 151.00 being in
respect of the total gross past and future loss of income. The
contingency deductions
have not been applied.
[41] The amount
or percentage of the contingency deductions is essentially subjective
and is in the
discretion of the Court. It is so that an individual
who is self-employed is responsible for his own earnings. Factors
such as
personality, market forces, economic climate, service levels,
commitment, state of health of the individual and profitability of
the business are some factors that would influence the individuals'
drawings or earnings. It cannot be said that the attorneys'
profession is always a booming practice. In the circumstances I have
decided to apply a much higher percentage of contingency deductions.
I shall apply 10 % for past loss and 20 % for future loss, in total
30 % deduction.
[42] In the
premises the amount of damages for loss of income is as follows:
Total gross loss
R 3 815 151.00
Less 30 % contingency deduction R
1 144 545.30
Nett loss
R 2 670 605.70
[43] I
accordingly grant judgment in favour of the Plaintiff in the
following amounts:
(1) Payment
of R 250 000.00 for general damages.
(2) Payment
of the sum of R 2 670 605.70 for loss of income.
(3) Interest
on the above amounts at the rate 9 % per annum from date of judgment
to date of payment.
(4) Costs
of the action.
E M MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 5, 6 &
21 February 2018
Judgment
Delivered
:
7 March
2018
For
Plaintiff
: Adv. G
J Diamond
Instructed
by
: Diamond
Hamman & Associates Polokwane
For
Defendant
: Adv. S
Mathabatha
Instructed
by
: State
Attorney Polokwane