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[2017] ZAGPPHC 176
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Mbwanja v Minister of Police (17447/2008) [2017] ZAGPPHC 176 (5 April 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case
Number: 17447/2008
5/4/2017
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
In
the matter between
ISHMAEL
MBONISWA
MBANJWA
Plaintiff
And
MINISTER
OF
POLICE
Defendant
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
The plaintiff claims damages from the defendant, which damages
emanate from his alleged unlawful arrest and detention by Colonel
Thlapi, who at the time, acted within the course and scope of his
employment with the defendant.
[2]
At the inception of the trial, I ordered that the merits and quantum
of the plaintiff's claim be separated.
[3]
Upon conclusion of the merits portion, I gave an
ex tempore
judgment and ordered that the defendant be held liable for the
damages the plaintiff suffered as a result of his unlawful arrest
and
detention.
[4]
The evidence presented during the merits portion of the trial that
bears relevance to the determination of the
quantum
of the
plaintiff's claim will be summarised
infra.
FACTS
[5]
In the early hours of the morning of 4 November 2005, a gang of armed
robbers stormed into the Carousel Casino. The plaintiff
was on duty
as a shift manager. A large amount of money was robbed and during the
robbery the plaintiff had to open several safes
whilst held at
gunpoint.
[6]
A police investigation ensued and several statements were obtained
from the employees involved in the robbery. CCTV video and
audio
footage were, furthermore, analysed and a comprehensive report in
respect of the progress of the robbery was submitted to
the police. I
pause to mention, that neither the CCTV footage nor the audio
recordings implicated the plaintiff in the commissioning
of the
crime. To the contrary and having regard to the detailed report in
respect of the footage and recording, the plaintiff was
clearly a
victim of the crime.
[7]
On or about 4 December 2005, Colonel Thlapi became the investigating
officer in the matter. According to his evidence, he received
information that the plaintiff was involved in the robbery. During
cross-examination, Colonel Thlapi could, with reference to the
docket, not point to a single shred of evidence that implicated the
plaintiff in the commissioning of the offence.
[8]
Notwithstanding the detailed report referred to
supra
and the
lack of any evidence implicating the plaintiff in the commissioning
of the crime, Colonel Thlapi proceeded to arrest the
plaintiff in the
early hours of the morning of 27 January 2006 at his place of
employment in full view of his co-workers. The plaintiff
was
handcuffed in public and taken to his apartment where his wife was
asleep.
[9]
The plaintiff's wife was woken up and their apartment was searched.
They had to explain where and with what money they had bought
their
furniture. In a nutshell, the plaintiff and his wife were treated as
criminals.
[10]
The arrest took place in the early hours of Saturday and the
plaintiff was detained in police cells until his appearance in
court
on Monday, 29 January 2006.
[11]
Bail was opposed by the State and in a formal bail application,
Colonel Thlapi,
inter alia,
informed the court that the State
had a strong case against the plaintiff. As alluded to earlier, there
was no evidence in the docket
implicating the plaintiff in the
commissioning of the offence.
[12]
As a result, the plaintiff spent five months in prison and was only
released on bail on 27 June 2006. Upon his return to work,
the
plaintiff was informed that his employment was terminated due to the
fact that the Gambling Board had revoked his license to
operate in a
casino.
QUANTUM
Evidence
[13]
Save for the evidence of the plaintiff, three expert reports were
introduced into evidence by agreement between the parties.
The report
of Christa du Toit, an industrial and counselling psychologist, that
of Lebo Ledwaba, an occupational therapist and
lastly the report of
Alet Mattheus, an educational psychologist.
[14]
Mr Hussain SC, gave a handy summary of the plaintiffs evidence in his
heads of argument and save for a few exceptions, I repeat
the summary
herein:
"5. Plaintiff was a young man,
29 years old at the time of his arrest. He matriculated and
thereafter attended the Tshwane
Technikon where he obtained a
National Diploma in Cost and Management Accounting. He obtained
employment with Sun International
as a cashier, first at the Carnival
Casino and thereafter at the Carousel Casino.
6. …
7.
He had a young family, married
with one child He lived on the premises in an apartment provided by
his employer.
8.
In order to work within the
casino industry, plaintiff had to be registered and licensed by the
Gambling Board. He had no previous
convictions or any other run in
with the law and was therefore given clearance to work in a casino.
After his arrest, the Gambling
Board withdrew his clearance, his
license and his employer was prevented from allowing him to resume
his duties. ....
9. Of significant importance is
that this young man, living a comfortable life
with his family
was suddenly faced with the trauma of violent crime; but worse was to
happen; he found himself being arrested and
handcuffed in front of
his colleagues, a most humiliating experience for a person held in
respect and a manager.
10.
Thereafter ..... he was
locked up in a filthy and stinking police cell, with criminals, for
the whole weekend. He described the
experience and the court will
accept that this was a most traumatic experience for him.
11.
Plaintiff was then
subjected to the criminal justice system. He suffered further
humiliation by his first appearance in court where
he had to stand in
a dock with dangerous criminals. He also had to suffer the company of
these criminals in the cells. In court
the humiliation continued with
family and friends having to see him being accused of serious
offences and remanded in custody.
12.
....
From court he was
removed to a notorious prison. There he spent 5 months in what must
have been living hell for him. He had to share
a cell with 50
inmates. They used a single toilet which was inside the same cell. He
had to barter his food and air time for his
personal safety. He was
allowed only one hour per week for exercise. He spent the whole five
months fearing for his life and being
forced to live in appalling
conditions.
13.
Plaintiff, having
enjoyed a comfortable living, now found himself unemployed and
financially distressed. He and his family lost
their home and had to
rely on the generosity of family and relatives. In desperation he
even tried hawking in the township. One
can imagine how demeaning
this must have been. Bearing in mind that, not so long ago, he was a
manager. Now he found himself unemployed
and blacklisted.
14. Plaintiff also suffered the
ignominy of having his furniture repossessed.
15.
When he found permanent
employment at Liberty Life, this too became conditional upon him
clearing his poor credit record (also caused
as a direct result of
the unlawful arrest) and obtaining police clearance. He managed to do
this in 2013 and was fortunate to hold
on to his job. However the
stigma remained, his employer and colleagues were aware of his recent
history. This caused damage to
his self-respect and confidence. As a
direct result of the arrest, plaintiff's career took a setback."
[15]
The plaintiff was unemployed from August 2006 until June 2008. During
2007 the plaintiff successfully completed an accounting
course, which
led to his employment from June 2008 until November 2011. During 2012
the plaintiff was unemployed until he secured
his present employment
with Liberty Life in January 2013.
[16]
The reports of the experts mainly deal with the emotional trauma the
plaintiff suffered and still suffers due to his ordeal.
It appears
that the plaintiff is constantly irritated and angry. He becomes
aggressive and quarrels with his wife. He is not the
same person that
he was prior to the incident.
Heads
of damages
i.
Future medical expenses
[17]
According to the recommendations contained in the expert reports, the
plaintiff and his family will need to undergo therapy
in future to
enable them to come to terms with the trauma caused by the incident.
The amount in respect of such therapy is R 64
100, 00.
ii.
Loss of income
[18]
The plaintiff claims loss of income for the periods that he was
unemployed, to wit from August 2006 until June 2008 and for
2012.
[19]
Mr Coetzee, counsel for the defendant, quite correctly, pointed out
that the plaintiffs claim in this regard is a claim for
pure economic
loss and falls to be determined in terms of the principles applicable
to Aquilian actions.
[20]
The employment contract between the plaintiff and Carousel
Entertainment Centre was subject to the plaintiff being registered
with the Gambling Board. As a direct result of the plaintiffs arrest,
the Gambling Board revoked his registration and consequently
his
employment contract with Carousel was terminated.
[21]
The Supreme Court of Appeal in
Minister of Safety and Security v
Scott and another
2014 (6) SA 1
SCA considered the interference
with a contractual relationship and with reference to
Visser Law
of Delict,
described the applicable principle as follows at 11 B:
"Interference with a
contractual relationship is present where a third party's conduct is
such that a contracting party does
not obtain the performance to
which he is entitled ex contractu, or where a contracting party's
contractual obligations are increased
"
[22]
In the present instance, the conduct of the police did interfere with
the contractual relationship between the plaintiff and
his employer.
Mr Coetzee with reference to the
Scott
- matter,
supra
submitted that the interference was not intentional and
consequently the defendant cannot be held liable for any damages the
plaintiff
suffered as a result thereof.
[23]
In the
Scott
matter the court did, however, consider the
negligent interference with a contractual relationship as a cause of
action, but found
that the defendant was in the circumstances of that
matter, not negligent.
[Scott supra
at 12 B] I pause to
mention that the facts in the
Scott
matter are distinguishable
from the facts
in casu.
[24]
In order to determine whether the defendant is liable for the
negligent interference with the contractual relationship between
the
plaintiff and the Carousel, it is incisive to revisit the test for
negligence. The test was formulated in
Kruger v Coetzee
1966
(2) SA 428
A at 430E-F as follows:
"For the purpose of liability
culpa arises if-
(a)
a diligens paterfamilias in the position of the defendant-
(i)
would foresee the reasonable
possibility of his conduct injuri ng another in his person or
property and causing him patrimonial
loss; and
(ii)
would take reasonable steps to
guard against such occurrence; and
(b)
the defendant failed to take such steps."
[25]
Colonel Thlapi arrested the plaintiff for an armed robbery that
occurred at his place of employment. He, furthermore, stringently
opposed bail on the grounds that there was a strong case against the
plaintiff. In the circumstances, a
diligens paterfamilias
in
the position of the Colonel Thlapi would have foreseen that there is
a reasonable possibility that the plaintiff's employment
could be
terminated which would cause the plaintiff patrimonial loss.
[26]
Colonel Thlapi could have prevented the loss by making sure, prior to
the plaintiff's arrest, that there was sufficient evidence
to arrest
the plaintiff on a charge of armed robbery.
[27]
From the evidence it is patently evident that he failed to do so.
[28]
In the premises, the defendant is liable for the loss of income the
plaintiff suffered as a result of his unlawful arrest and
detention.
[29]
This liability, however, only pertains to the period directly
following the termination of his employment, to wit August 2006
until
June 2008. I am not convinced that the defendant could have foreseen
that the plaintiff would also be unemployed in 2012.
Awarding damages
to the plaintiff for the period 2102, will be casting the net too
wide.
[30]
The parties agreed that, should the plaintiff succeed under this head
of damages, his loss will amount to R 477 215, 00.
iii.
General damages
[31]
The plaintiff came across as an educated person who was proud of the
progress he has made in his employment career. He worked
hard and
diligently to achieve his goals in life.
[32]
The unlawful arrest and detention shuttered the plaintiff's entire
universe. Not only was he humiliated in the presence of
his
colleagues and wife during the arrest, but he also had to endure the
unhygienic conditions of the police cells. His wife and
family saw
him in the criminal court, being arraigned on a most heinous crime.
[33]
Thereafter, he spent five months in jail where he had to fend for
himself to the best of his ability.
[34]
The plaintiff's true ordeal, however, started when he was released on
bail. He lost his employment and was forced to vacate
his
accommodation. The plaintiff could no longer afford to honour his
monthly financial obligations and his furniture was repossessed.
His
name was blacklisted which caused further embarrassment.
[35]
Being a man who held a good job and that was in a position to provide
for his family, he suffered the humiliation of being
unemployed. He
lost his self worth and his relationship with his wife was
emotionally strained.
[36]
It is clear from the contents of the various expert reports that he
still suffers from the trauma caused by the unlawful arrest
and
detention.
[37]
Mr Hussain SC, with reference to various reported cases submitted
that an amount of R 918 000, 00 in general damages would
adequately
compensate the plaintiff for the loss he suffered in this regard. Mr
Hussain SC arrived at the amount by multiplying
the 153 days the
plaintiff was in detention with R 6 000, 00 per day.
[38]
Mr Coetzee, in turn and also with reference to various reported
cases, submitted that R 1 700, 00 would be a valid daily amount.
In
the premises, he submitted that an amount of R 260 100, 00 would
adequately compensate the plaintiff.
[39]
The Supreme Court of Appeal has, however, warned that a process of
comparison should not be a meticulous examination of awards
that
interferes with the court's general discretion in awarding a fair
amount of damages. [See:
Minister of Safety and Security v
Seymour
2006
(6) SA 320
SCA.]
[40]
An award should adequately compensate a claimant for the deprivation
of personal liberty and freedom and the attendant mental
anguish and
distress. [See:
Minister of Safety and Security v Tyulu
2009
(5) SA 85
SCA.]
[41]
The award should, however, also be fair to the defendant and should
not be the product of an overly emotional response by the
court. No
amount of money will compensate the plaintiff for what he has lost.
[42]
Having had regard to the facts
in casu,
I am of the view that
an amount of R 500 000, 00 would be just and fair to both parties.
ORDER
[43]
In the premises, the defendant is ordered to pay to the plaintiff:
1. An amount of R 1 041 315,00;
2. Interest on the aforesaid amount at
a rate of 10,25% per annum calculated from date of judgment to date
of payment;
3. Costs of suit, which include the
costs of Senior Counsel.
_________________________
E
VAN NIEUWENHUIZEN J
OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
APPEARANCES
Counsel
for the Plaintiff:
Advocate I. Hussain SC (082 650 440)
Instructed
by:
Mokoduo Attorneys
Ref
: No: KMIOMIM167 (MOK110171)
(082
781 0582/011-615 2872)
Counsel
for the Defendant
Advocate S.J. Coetzee (082 4103 188)
Instructed
by:
State Attorney's Office
Ref:
No: BM/EB897/2008/2642/Z59
(012
309 1538)