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[2017] ZAGPPHC 964
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Minister of Police and Another v Wolmarans (60082/2012) [2017] ZAGPPHC 964 (29 March 2017)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
NORTH GAUTENG DIVISION, PRETORIA
CASE NO: 60082/2012
29/3/2017
(1) REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
In the matter between:
MINISTER OF
POLICE
1
st
Applicant
MINISTER OF
JUSTICE AND
CONSTITUTIONAL
2
nd
Applicant
DEVELOPMENT
and
JAN
HENDRIK
WOLMARANS
Respondent
JUDGMENT
MSIMEKI J,
INTRODUCTION
[1] The applicants brought an application for leave to
appeal against my whole judgment and order, including the order as to
costs
which I handed down on 23 September 2016. The appeal, according
to the application, is directed to the Supreme Court of Appeal of
South Africa alternatively, the Full Court of the Division.
[2] Mr D, Mtsweni, who represented the defendants when
the matter was heard and argued, again represented them when the
application
for leave to appeal was heard and argued. The Plaintiff
who was represented by Mr J. P. Nel when the matter was heard and
argued
was represented by Mr P. W. T Lourens when the application was
heard and argued.
[3] The grounds on which the application is based are
the following:
"1. The learned Judge erred in finding that the
Plaintiffs pre-existing problem with substance abuse, was exacerbated
by his
unlawful arrest and detention. The Learned Judge should have
found that the Plaintiffs
a
(sic) pre-existing problem with
substance abuse was exacerbated by his failure to seek help.
2. The Learned Judge should have further found that
Prof. Scholt's report, it is palpably clear that the Plaintiff's
problem with
substance abuse was the sole cause of his condition. The
Learned Judge furthermore ought to have found that because of his
failure
to seek assistance in respect of his problem with substance
abuse, the Plaintiff contributed to his current condition.
4.
The Learned Judge erred, in absence of any evidence to suggest
and quantifying the Plaintiff cost of future medical expenses, by
awarding an amount of R100 000.00. The Learned Judge should have
found that in absence of any evidence to the effect that the
Plaintiff will require an amount of R100 000.00 towards his future
medical expenses, declined to award such amount.
5.
The Learned Judge furthermore erred in awarding the Plaintiff
an amount of R2 700 000.00 in respect of his arrest and detention.
The Learned Judge should have found that regard being heard (sic) to
the circumstances of this matter together with the comparable
authorities, that the amount of R2 700 000.00 was excessive
alternatively unreasonable in the circumstances".
[4] The paragraphs in the notice of application for
leave to appeal have not been properly numbered. Paragraph 3 has been
omitted
resulting in the following numbering: 1, 2, 4 and 5. I shall
follow the applicant's sequence of numbering.
[5] Simultaneously with the application for leave to
appeal, the applicants brought an application seeking an order in the
following
terms:
"1. That the late filing of the Applicant's
application for leave to appeal be and is hereby condoned and the
time periods
be and are hereby extended accordingly;
2.
That the costs of this application be costs in the cause
alternative (sic) that the Respondent be and is hereby directed to
pay
the costs of this application, only in the event of opposition;
3.
That the above Honourable Court grants further and/or alternative
relief as it may in the circumstances deem meet".
CONDONATION
[6] At the outset,
Mr Mtsweni informed the Court that the respondent was neither
opposing the
application for condonation nor consenting thereto. This
was confirmed by Mr Lourens when he started arguing his case.
[7] The notice of
application for condonation was accompanied by an affidavit in
support of
the condonation application deposed to by Mr Maxwell
Thozamile Matubatuba, a Senior Assistant State Attorney practicing as
such
in the employ of the State Attorney at NO. 316 Thabo Sehume
Street, Pretoria.
[8] Mr Matubatuba, in the
affidavit, fully explains why the application for leave to appeal was
filed late.
The decision that I later arrive at regarding the
application for leave to appeal makes it unnecessary to consider the
issue of
condonation. The granting or not of the application for
condonation was left in the hands of the Court by Mr Lourens who,
nevertheless,
later argued that the application ought to be dismissed
if the application for leave to appeal was unsuccessful.
[9]
The application for leave to appeal, according to Mr Mtsweni, has
prospects of success. He submitted
that another Court could come to
the conclusion different to the conclusion that I arrived at when I
gave my judgment.
[10] Mr Mtsweni raised two issues in
support of his submissions and these are:
10.1 That the amount of R100 000.00 that the Court
awarded the plaintiff in respect of the plaintiff's cost of future
medical expenses
was excessive and unreasonable.
10.2
That the amount of R2 700 000.00 that the Court awarded the plaintiff
in respect of his arrest and detention was unreasonable
alternatively
excessive.
THE LAW
[11]
Section 17(1)(a)(i)
and
(ii)
of the
Superior Courts
Act 10 of
2013
deals
with the issue of leave to appeal. The section reads:
"17
Leave to appeal
(1)
Leave to appeal
may only be given where the judge or judges concerned are of the
opinion that-
(a)(i)
the appeal would have
a
reasonable prospect
of
success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;"
[12]
In
Protea Assurance Co. Ltd v Lamb
1971 (1) SA 530
(A) at 535 H-
5368
Potgieter JA said:
"The above quoted passages from decisions of
this Court indicate that, the trial Court or the Court of Appeal, as
the case
may be, may pay regard to comparable cases. It should be
emphasised, however, that this process of comparison does not take
the
form of
a
meticulous examination of awards made in other
cases in order to fix the amount of compensation; nor should the
process be allowed
so to dominate the enquiry as to become
a
fetter upon the Court's general discretion in such matters.
Comparable cases. when available. should rather be used to
afford some guidance. in
a
general way. towards
assisting the Court in arriving at an award which is not
substantially out of general accord with previous
awards in broadly
similar cases. regard being had to all the factors which are
considered to be relevant in the assessment of general
damages. At
the same time it may be permissible. in any appropriate case. to test
any assessment arrived at upon this basis by
reference to the general
pattern of previous awards in cases where the iniuries and their
sequelae may have been either more serious
or less than those in the
case under consideration."
(my emphasis).
[13] In
Minister of Safety and Security v Seymour 2006 (6) SA 320(SCA)
[17] at 325B,
Nugent JA
said:
"[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."
(my emphasis).
[14] McKerron in his Law of Delict, 7
th
ed., at page 124 said:
"
The interests of society are
sometimes better served by allowing the iniured party to recover
damages beyond the compensatory measure
than by allowing the
wrongdoer to benefit by the fact that some other person has
discharged his liability.
Moreover, the effect of refusing
to allow the recovery in full would be to deprive the third party of
the possibility of obtaining
reimbursement from the injured party
..."
(my emphasis).
The "compensation is not punishment" principle
was affirmed by Rumpff, JA (as he then was) when he delivered the
majority
judgment in the matter of
Santam Versekeringsmaatskappy
Bpk v Bylveldt
1973 (2) SA 146
(A) at 153C-D.
(See also
Alves
v LOM Business Solutions (Pty) Ltd and Another
2012 (1) SA 399
(GSJ)
at 411G-412A
).
[15] Mr Mtsweni submitted that there
are cases where the plaintiffs were detained for periods of .as long
as 15
months and still received less amounts in respect of general
damages. He referred,
inter alia,
to the case of
Alves v
LOM business Solutions (Pty) Ltd and Another
(supra)
where
the period of detention was 15 months yet an amount less than the
amount that the respondent was awarded in this case was
awarded in
respect of general damages. The facts of the case, in my view, are
distinguishable from the facts of this case. There,
Willis J at
412D-E
said:
"...
The approach to quantum should be different,
in
a
case such as this,
from the situation where
there has been an unlawful arrest and/or detention
".
He was of the view that the amounts awarded in cases
"should
not be derisory. showing contempt or indifference to the loss of
freedom".
I agree. (my emphasis).
[16] While it may well be so that
cases in the past have shown that smaller awards were made where
people were
detained for longer periods, sight should not be lost of
the fact that facts of cases differ from one case to the other. The
question
whether there was unlawful arrest and detention is also
cardinal. In the
Alves case
(supra)
the arrest
appears to have been lawful and the detention at some point appears
to have been unwarranted. The facts of this case
are different. The
arrest and the detention were unlawful. The applicants conceded this.
[17] The issue in this case involves
quantum only, namely future medical expenses and general damages.
Regard
must be had to the fact that the arrest and detention of the
plaintiff (respondent) were unlawful and conceded.
[18] Mr Mtsweni submitted that the
trend appears to be that the longer one remained in detention the
smaller and
lesser the award became. He attributed this to cases
where people were detained for a few days yet, awarded higher
amounts. I do
not think that the submission has substance. The
question to be answered is simple. Have the arrest and detention been
unlawful
from the outset? If the answer is yes, then the case will be
distinguishable from the case of
Alves
(supra)
that
Mr Mtsweni relied on.
[19] Mr Lourens referred the Court to
a number of cases from which it is clear that Courts always regard
deprivation
of one's liberty as a serious matter. Courts are enjoined
to look at the facts of each case in their entirety in assessing
general
damages. The assessment of damages is pre-eminently a matter
for the discretion of the trial Court. A superior Court only
interferes
where the discretion has not been judicially or properly
exercised.
(See Minister of Safety and Security v Scott and
Another
2014 (6) SA 1
at
15G-H).
[20] The Court, clearly, has a
discretion to award fair, reasonable and adequate damages. Having
regard to previous
cases in the assessment of general damages has
been seen as a useful guideline. I also agree.
[21] Mr Lourens referred to cases such
as
Langa v Minister of Police 2016 JDR 0921 (GP)
where the
Court awarded damages in the amount of R120 000.00 for wrongful
arrest and detention. The plaintiff was in custody for
approximately
9-10 days.
[22] In
Minister of Safety and
Security and Another v Ndlovu
2013
SACR 339
(SCA) an
amount of R230 000.00 was awarded where the detention was for 9
days.
[23] In
Minister of Safety and
Security v Zwane 2016 JDR 1330 (GP)
the Court had awarded the
plaintiff R180 000.00 where the detention was for 3 days. The Court,
in an application for leave to appeal,
found that there was no
prospect of success and dismissed the application with costs.
[24] In
Kenneth v Minister of
Police 2011 JDR 1754 (GNP)
the detention was for 40 days. An
amount of R500 000.00 for general damages for wrongful arrest and
detention was awarded.
[25] In
Mabitsela v Minister of
Safety and Security 2015 JDR 2643 (GP)
the Court awarded R800
000.00 for unlawful detention as damages for a 3 day period.
[26] In
Madze v Minister of Police
2015 JDR 2680 (ECG)
the Court awarded R120 000.00 as damages for
approximately 6-7 days of unlawful arrest and detention.
[27] In
Nel v
Minister
of
Police 2016 JDR 1361 (ECGEL)
the Court awarded
R140 000.00 in damages where the arrest and detention lasted for
approximately 4 days.
[28] In
Hendricks v Minister of
Safety and Security 2015 JDR 1057 (ECG)
the unlawful arrest and
detention had been for 3-4 days. On appeal an amount of R30 000.00
that had been awarded was increased to
R100 000.00.
[29] In
Minister of Safety and
Security v Van Der Westhuizen 2015 JDR 0713 (GJ),
the award for
damages in the amount of R400 000.00 was, on appeal, reduced to R200
000.00. The respondent had been in detention
for 32 hours (according
to the respondent) and 28% hours (according to the appellants).
[30] In
Van der Merwe v The
Minister of Safety and Security 2011 JDR 0029 (ECG)
the plaintiff
had been arrested and detained for 3 days. The Court awarded R120
000.00 in respect of unlawful arrest and detention.
[31] In
The Minister of Police and
Another v Du Plesses (Supreme Court of Appeal: 666/2012)
the
Court confirmed the awards of R100 000.00 against the first defendant
(Minister of Police) and R120 000.00 against the NDPP
(the second
defendant) for unlawful detention. The total period was close to 10
days.
[32] In
Dolamo v Minister for
Safety and Security (North Gauteng High Court, Pretoria: Case Number:
5617/2011)
the detention was for 4 days. The plaintiff was
awarded damages for unlawful arrest and detention in the amount of
R100 000.00.
[33] The pre-trial minute reveals that
the parties would argue the issue of quantum on the medico-legal
report
of Professor J. G. Scholtz.
[34] Mr Lourens submitted that it was
common cause that the parties had introduced Professor J. G.
Scholtz's report
as their basis in the determination of the issue of
quantum. Mr Lourens, therefore, argued that the case was akin to a
stated case
and that the grounds of the applicants appeal were
inconsistent with the common cause aspect as the parties were
confined to Professor
J. G. Scholtz's report. Mr Lourens regarded the
contents of the report central in respect of the grounds of appeal.
THE FIRST
GROUND OF APPEAL
[35]
Mr Mtsweni submitted that the Court should have found that the
plaintiff's "pre-existing problem, with
substance abuse was
exacerbated by his failure to seek help". Mr Lourens's counter
argument was that the Professor's report
which is the basis of the
plaintiff's case, does not say that. Indeed, what the report says is
that the plaintiff's arrest and
consequent detention in August 2010
was a traumatic experience for him and that this
"abuse of
and possible dependence on substances was
a
pre-existing
problem which has merely been exacerbated by the incident".
[36]
The Professor clearly describes the plaintiff prior to the incident
and post the incident. After the accident,
according to the
Professor, the plaintiff's functioning
"has deteriorated
since the incident".
He observed that the arrest was
completely unexpected and violent and that the detention was strange.
His report lists a number
of psychological disturbing aspects of the
plaintiff's arrest and detention which the plaintiff had to contend
with. These are
also in my judgement. The Professor reveals that the
plaintiff
"was robbed of his freedom and his dignity
compromised".
His self esteem has suffered and his
sense of direction and purpose affected.
SECOND
GROUND OF APPEAL
[37] What I say above disposes of the
second ground of appeal as well.
FOURTH
GROUND OF APPEAL WHICH SHOULD HAVE BEEN THE THIRD GROUND OF APPEAL
[38] Mr Mtsweni submitted that in the
absence of supporting evidence, the Court should have declined making
an
award of R100 000.00 in respect of future medical expenses. The
professor's report deals with this aspect. Paragraph [15] of my
judgment addresses Mr Mtsweni's concern. The Professor has dealt with
cases such as this. Paragraphs [6] and [8] of my judgment
properly
and adequately addresses Mr Mtsweni's concern.
THE FIFTH
GROUND OF APPEAL WHICH SHOULD HAVE BEEN THE FOURTH
[39] In this ground, Mr Mtsweni argued
that the Court should have found
"that regard being heard
(sic) to the circumstances of this matter together with the
comparable authorities, that the amount
of R2 700 000.00 was
excessive alternatively unreasonable in the circumstances".
I
have adequately dealt with and referred to comparable cases dealing
with general damages.
[40] Mr Lourens submitted that regard
being had to comparable cases the plaintiff's case is the best
example of
a case where the plaintiff should have been awarded a far
higher amount for general damages. Having regard to the Professor's
report,
I must agree.
[41] I have carefully considered the
submissions of both Counsel, the Professor's report, the authorities
and
the comparable cases and my finding is that there is no merit in
the application which, in my view, has no prospect of success.
Another Court, in my view, will not arrive at a conclusion different
to mine. The application should fail.
ORDER
[42]
I, in the result, make the
following order:
The application is dismissed with
costs.
M. W. MSIMEKI
JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION OF THE HIGH COURT,
PRETORIA