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[2017] ZALMPPHC 22
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M.M v Minister of Police and Another (1002/2012) [2017] ZALMPPHC 22 (23 August 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF
SOUTH AFRICA
IN THE HIGH
COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 1002/2012
23/8/2017
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
M
M
PLAINTIFF
and
MINISTER
OF
POLICE
1
ST
DEFENDANT
WARRANT
OFFICER COLLEN
DIKGALE
2
ND
DEFENDANT
JUDGMENT
SIKHWARI
AJ
[1]
On 22 February 2017 this court, Mokgohloa DJP, made a judgment on
merits to the effect that defendants are liable for plaintiff’s
damages for two heads of damages; to
wit
unlawful detention and malicious prosecution. The matter then was set
down for quantum.
[2]
The plaintiff testified as the only witness on merits. He testified
that he was arrested on 24 July 2011 and was detained for
25 days
until 19 August 2011 when he was released on warning. Proceedings
against him were later withdrawn on 28 May 2012.
[3]
When he arrived at the police cells on the 24 July 2011 he was forced
by other inmates to take off his clothes and remain naked
as a method
of baptising him. He was later told to go to take a bath. It was
winter and the water was cold. The bathing place was
next to a dirty
toilet in the same room with no partitioning or curtain. After taking
a bath he was ordered to join the other inmates
in singing. He was
assaulted twice by the inmates on the throat on the allegations that
his voice was out of tune. The inmates
threatened to cut open his
throat if he does not improve his singing tune. There were about
17-18 male inmates in one small cell.
There was one boss who was in
control of everything.
[4]
The boss forced other inmates to bend and so that he could sexually
penetrate them through the anus. The plaintiff was forced
to hold the
blanket with another inmate to create some sort of a curtain to cover
the boss when he was having anal sex so that
other inmates could not
see the act. The plaintiff was told that he is too slim and as such
he will not be raped. The boss was
raping those male inmates who were
bit stout or fat.
[5]
In the evening the plaintiff was given one blanket which had some
lice. Those lice were pricking him and disturbing his sleep.
When the
plaintiff was arrested on the 24 July 2011 he was in a good physical
and emotional health but when he was there he sustained
injuries on
the throat due to beating of the first day. At one time his brother
was refused to see him by the police officers.
The community does not
respect him any more due to allegations of murder for which he was
arrested. People still look at him as
if he is a murderer. He feels
isolated in the eyes of the community.
[6]
Under cross-examination, the plaintiff was asked one question about
whether he applied for bail or not. He answered that he
was released
on warning, and attended court several times until he was told that
the real people who committed the murder were
found. Charges against
him were then withdrawn.
[7]
Counsel for plaintiff addressed court and referred to several case
law authorities which I need not repeat in this judgment.
Counsel
stated that the appropriate amount for damages due to the plaintiff
which is fair and reasonable is the amount of R525 000.00
(five
hundred and twenty five thousand rand) for unlawful detention. He
relied on the case of
Woji
v Minister of Police (92 / 2012)
[2014] ZASCA 108
(20 August 2014).
Plaintiff’s
counsel submitted further that a fair and reasonable amount for
damages due to the plaintiff for unlawful prosecution
is the amount
of R120 000.00 (one hundred and twenty thousand rand). Counsel
stated further that the court should look on
all factors,
cumulatively, and arrive at a fair and reasonable amount for both
heads of damages herein.
[8]
Counsel for the defendants also referred the court to
Woji
v Minister of Police
as well as other decisions and submitted that the fair and reasonable
amount for damages for unlawful detention is the amount of
R80 000.00
(eighty thousand rand). He distinguished
Woji
from the present case on the bases that
Woji
was
raped whereas the plaintiff herein was not raped except that he only
witnessed the rape of others;
Woji
lost sexual interests on his wife whereas there is no such evidence
in respect of the plaintiff herein;
Woji
was
detained for a lengthy period of 13 months whereas the plaintiff
herein was detained for 25 days,
etc
.
Woji
was
awarded R500 000.00 (five hundred thousand rand) for unlawful
detention. I agree with the above distinguishable factors
between the
present case and
Woji
.
[9]
For malicious prosecution, counsel for the defendant submitted that a
fair and reasonable amount for damages should be R20 000.00
(twenty thousand rand). He relied on the case of
Minister
of Safety and Security v Schubatch (437/2013) [2014] ZASCA (216) (01
December 2014)
in
which the Supreme Court of Appeal has reduced a high court award of
R120 000 to R10 000.00 for malicious prosecution
damages.
[10]
I have noted that in paragraph [23] of the
Schubatch
judgment,
Zondi
JA
justified the decision of the SCA to reduce the award on the fact
that “
the
trial court a quo erred in its assessment of damages by failing to
take into account the fact that the respondent’s prosecution
on
charges relating to the other weapons was based on reasonable and
probable cause and not malicious. In other words, the infringement
of
the respondent’s rights was not wrongful as his prosecution on
those charges was based on reasonable grounds. The appellant
would in
any event have been arrested in respect of the charges for which
there was probable cause, spent time in custody and faced
prosecution. These facts were ignored by the court below”.
[11]
These factors which were outlined by
Zondi
JA,
in
my view, distinguish
Schubatch
matter from the present one. In this case plaintiff was never
associated with any other murder case except the one he was wrongly
detained for. Plaintiff could not have been detained for any other
crime which carries a competent verdict to the murder crime
which he
was wrongly detained for. The plaintiff herein could not have been
detained or accused or suspected of any other crime
except the one he
was ultimately told that the real perpetrators were found. Therefore,
the jurisdictional facts which
Zondi
JA
relied upon to reduce the amount for damages in the
Schubatch
case
are not present in this case.
[12]
In Minister
of
Safety and Security v Tyulu (327/08)
[2009] ZASCA 55
(27 May 2009),
Boshielo AJA
(as he then was) stated in paragraph [25] that “…
a
lthough
it is true that the detention was for a relatively short period, I am
of the view that the length of time for which a person
is detained
after arrest is not the only factor to be considered in determining
damages. All the surrounding circumstances deserve
to be accorded
proper consideration. It cannot be doubted that this arrest must have
caused him serious shock with concomitant
mental anguish and stress”.
I align myself with this reasoning in as far as this case is
concerned.
[13]
In paragraph [26] of
Tyulu
judgment,
Boshielo
AJA
went further to state that “i
n
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 solatim
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 realty 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) 325 para 17; Rudolph & Others v
Minister of Safety and Security & Others (380/2008)
[2009] ZASCA
39
(31 March 2009) (paras 26-29)”
[14]
I must state that I agree with the above method of assessment. Having
considered all the surroundings circumstances, personal
circumstances
of the plaintiff and the emotional state of mind he endured due to
events in custody, I am of the view that a fair
and reasonable amount
of damages for unlawful detention is R300 000.00 (three hundred
thousand rand) and for malicious prosecution
is R100 000.00
(hundred thousand rand). I see no basis why costs should not follow
the event.
[15]
In the result, the following order is made:
1.
That
the first defendant is ordered to pay the sum of R300 000.00
(three hundred thousand rand) to the plaintiff as damages
for
unlawful detention.
2.
That
the first defendant is ordered to pay to the plaintiff the sum of
R100 000.00 (one hundred thousand rand) as damages for
malicious
prosecution.
3.
That
the first defendant is ordered to pay interests on the sums of
R300 000.00 and R100 000.00 respectively at the rate
of
10.3% per annum, calculated from the date of judgment to the date of
final payment.
4.
That
the first defendant pays the taxed or agreed costs of the plaintiff
on party and party scale.
___________
MS
SIKHWARI, AJ
Acting
Judge of the High Court,
Limpopo
Division, Polokwane
APPEARANCES:
1.
Plaintiff’s
counsel
: Adv KC Kekana
2.
Defendants’
counsel
: Adv DM Kekana
3.
Date
of hearing
: 15 August 2017
4.
Date
handed down
: 23 August 2017