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[2017] ZAGPPHC 1039
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Mashile and Others v Minister of Police and Another (77818/2014, 77826/2014, 77825/2014, 77827/2014) [2017] ZAGPPHC 1039 (22 March 2017)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE: NO.
(2) OF INTEREST TO OTHER JUDGES: NO.
22/3/2017
In the matter
between:
Cases number: 77818/2014
77826/2014
77825/2014
77827/2014
TC MASHILE
First
Plaintiff
NT MASEKO
Second
Plaintiff
ZA NTOMBELA
Third
Plaintiff
J M
NYANDENI Fourth
Plaintiff
and
MINISTER OF
POLICE First
Defendant
NATIONAL DIRECTOR OF PUBLIC
PROSECUTION Second
Defendant
JUDGEMENT
MOTHLE J
1. Each of the four Plaintiffs instituted action against the
Minister of Police and the National Director of Public Prosecution
for damages arising out of alleged unlawful arrest and detention.
2. The four men were arrested and detained together and further
charged with the same offence. The cause of action, the objective
facts and the Defendants were the same in each action. Consequently,
the court on application ordered the consolidation of the
actions.
3. In the particulars of claim, all the Plaintiffs allege that on
the 10 August 2014, they were arrested by police officer Mahlangu,
a
member of the South African Police, acting within his scope and
course of employment, and were detained at four police stations
during the period of detention. They were detained at the following
police stations, namely Vosman, Blinkpan, Hendrina and Middelburg,
for a period of 11 days. It is further claimed in the summons that
each Plaintiff suffered damages in the amount of R400,000.00,
as a
result of the unlawful arrest and detention.
4. It is trite that in an action for unlawful arrest and detention,
where the police are the defendants, once such defendant admits
that
there was an arrest, the onus is on that defendant to prove that such
arrest was lawful,
see: Brand v Minister of Justice 1959 [4] All
SA 420 (A) and Minister of Law and Order v Hurley
[1986] ZASCA 53
;
[1986] 2 All SA 428
(A) at paragraph 32.
Consequently, the defendant has the duty to
begin. See in this regard
lntramed (Pty) Ltd v Standard Bank of
South Africa Ltd
2004 (6) SA 252
(W) and Topaz Kitchens (Pty) Ltd v
Naboom Spa (Edms) Bpk 1976 (3) SA 470 (A).
5. On the day of the
hearing, the Court was informed by the Defendants' counsel that they
did not have witnesses and consequently
closed their case without
leading any evidence to discharge the onus. The defendants' plea is a
bare denial of the allegations
raised in the particulars of claim.
The Plaintiff then applied for judgment against the Defendants which
this Court granted, ordering
that the Defendants would be liable for
the Plaintiff's proven damages.
6. The Plaintiffs then presented the evidence. The First Plaintiff
testified that after their arrest, they were held in detention
in the
various police stations referred to in this judgment, where the
conditions were appalling. In Vosman for example, the cell
was dirty,
the toilet not flushing and there was no water to drink. In Blinkpan,
the cell in which they were kept was undergoing
renovation, was dirty
and dusty as the walls were being stripped to apply new paint. In
Hendrina the cells smelt, looked dirty
with the blankets being dirty,
and the other inmates found there were smoking in the cells. In
Middelburg, they were held in the
cells where they were subjected to
threats of assault by other inmates.
7. The First Plaintiff further testified that they appeared in Court
four times and were represented by an attorney. They were,
however,
denied bail. It was only on 21 August 2014 that they were released
from detention without any charge or criminal offence
being proven
against them.
8. Counsel for the Plaintiff submitted that after their first
appearance in Court on the 12 August 2014, all further detentions
authorised by the Magistrate was simply a continuation of the
unlawful arrest. In support of this contention, the Court was
referred
to a number of authorities such as Minister of Police v Du
Plessis
2014 (1) SACR 217
(SCA) and Woji v Minister of Police
[2015]
1 All SA 68
(SCA), where it was decided that the period of detention
would, in appropriate cases where the arrest was unlawful, include
any
further detention authorised by the Court. In granting judgment,
the Court held the defendants liable for the period of 11 days
of
detention.
8. Like arrest, detention in police custody results in the
deprivation of liberty and movement rights, which are protected by
the Constitution. In the matter of
Minister of Correctional
Services v Tobani
[2001] 1 All SA 370
(E)
the court stated the
principle at 371F thus:
" So fundamental is the right to personal liberty that the
lawfulness or otherwise of a person's detention must be objectively
justifiable, regardless of the bona tides of the gaoler and
regardless even of whether or not he was aware of the wrongful nature
of the detention."
9. The action instituted by the Plaintiffs is based on contumelia. It
is trite that there is no particular formula in determining
an
appropriate award as compensation for unlawful arrest and detention.
Each case depends on its own merits.
9. Determining the monetary value to these rights is not dependant on
simple mathematical or other scientific calculations. Neither
is case
law very helpful in this regard. However, case law serve only as a
guideline. In the words of Nugent JA in
Minister of Safety and
Security v Seymour
[2007] 1 All SA 558
(SCA) 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".
48. And at 326 paragraph 20:
"[20] Money can never be more than a crude
solatium for the deprivation of what, in truth, can never be restored
and there
is no empirical measure for the loss."
49. The following cases were considered as a guide by the Court in
the Seymour matter, namely:
"In Solomon v Visser and Another
1972 (2) SA 327
(C ), a 48-
year-old businessman who was detained for seven days, first in a
police cell and then in a prison, was awarded R4 000
(R136 000). In
Areff v Minister van Polisie
1977 (2) SA 900
(A), this Court awarded
a 41- year-old businessman who was arrested and detained for about
two hours R 1 000 (R24 000). In Liu
Quin Ping v Akani Egoli (Pty) Ltd
tla Gold Reef City Casino
2000 (4) SA 68
(W), a businessman who was
unlawfully detained for about three hours was awarded R12 000 (R 16
978). In Manase v Minister of Safety
and Security and Another
2003
(1) SA 567
(Ck) in which a 65-year-old businessman was unlawfully
detained for 49 days, incarcerated at times with criminals, the sum
of R90
000 (R102 000) was awarded. In Seria v Minister of
professional man who was arrested and detained in a police cell for
about 24
hours, for a time with a drug addict, was awarded R50 000
(R52 000).
50. The Supreme Court of Appeal in the matter of
Minister of
Safety and Security v Tyulu
[2009] 4 All SA 38
(SCA)
awarded
compensation in the amount of R15 000 for a magistrate who was
arrested and briefly detained for being drunk in the early
hours of
the morning.
10. In determining an appropriate compensation for each of the
Plaintiffs in this matter, the Court will have to be guided by
previous awards made by the Courts and in particular the evidence of
the Plaintiffs through the mouth of the First Plaintiff, which
evidence was not contested.
11. The First Plaintiff testified in support of his claim and that
the other three Plaintiffs. Since the actions have been consolidated
in terms of rule 10, and the fact that throughout the incarceration
the four Plaintiffs were held together, his evidence applies
to the
other Plaintiff's actions as well. The amount determined as a fair
and reasonable compensation for the damages in respect
of the First
Plaintiff will thus be appropriate for each of the other three
Plaintiffs.
12. Having regard to the evidence and a guide from the court cases
cited above, I am of the view that the following is a fair and
reasonable compensation for the unlawful arrest and detention, namely
R180,000.00 for each of the Plaintiffs.
13. On the question of costs, the Plaintiffs were represented by a
senior counsel appearing with a junior counsel. In my view,
the
circumstances of this case are such that only one counsel would have
been sufficient to prosecute this claim. I will therefore
allow the
costs of one counsel.
14. In the premises I make the following order:
1. The claims by the Plaintiffs succeed.
2.
The Defendants are held liable for damages suffered by each of the
Plaintiffs as a result of the unlawful arrest and detention
of each
of the Plaintiffs.
3.
Each of the Plaintiffs is awarded an amount of R180,000.00 as a fair
and reasonable compensation for damages suffered consequent
to their
unlawful arrest and detention.
4.
The Defendants are ordered to pay the costs of suit including costs
of one counsel.
5.
Being jointly liable, one Defendant paying, the other will be
absolved.
SP MOTHLE
Judge of the High Court.
Gauteng Division Pretoria
For the Plaintiffs
:
Adv.
T P Kruger SC
Assisted by:
Adv.
J. Pienaar
Instructed
by:
Marais
Sasson Inc
Pretoria
For the Defendants:
Adv
Mabunda
Instructed
by:
State
Attorney
Pretoria