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[2017] ZAKZPHC 45
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Mbhele and Another v Minister of Police (AR790/16) [2017] ZAKZPHC 45 (3 November 2017)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION PIETERMARITZBURG
CASE
NO: AR790/16
In
the matter between:
SIYABONGA
SANELE
MBHELE

FIRST APPELLANT
PHILISIWE
ELLINA MBHELE
SECOND

APPELLANT
and
THE MINISTER OF POLICE

RESPONDENT
Date
of Hearing

:           20
October 2017
Date of Judgment

:
03
November 2017
ORDER
The
following order is granted:
The
appeal is dismissed with costs.
JUDGMENT
D.
Pillay J:
Introduction
[1]
The
first appellant is Siyabonga Sanele Mbhele (the first claimant).
Philisiwe Ellina Mbhele substituted herself as the second appellant

on behalf of her son Thobani Jaca (the second claimant) who has since
passed away.
[2]
Both
claimants had been arrested and detained in police custody on 7 and 9
May 2013. After an appearance on 11 May 2013 the court
ordered their
further detention. Following a bail application on 6 June 2013 they
were released. On the same day the prosecution
withdrew the charges
against the claimants due to lack of evidence.
[3]
Both
claimants sued for damages in the magistrates’ court. The trial
court found that the arrest of the first claimant was
unlawful and
awarded damages in the sum of R65 000 plus interest from the
date of service of summons to date of payment and
costs. The court
dismissed the claim of the second claimant with costs but ordered
that the respondent refund the sum of R6 000
with interest and
costs to the second claimant. Both appellants appeal against the
judgment of the magistrate. As regards the first
claimant the only
issue in dispute is whether the quantum of R65 000 is reasonable. As
regards the second claimant the appellant
challenges the dismissal of
his claim with costs.
[4]
After
the court reserved judgment the appellants sought leave to submit
further heads of argument. The court allowed this indulgence
without
objection from the defendant.
General
principles
[5]
The
general rules are that first a court on appeal will not interfere
with a trial court’s findings unless a material misdirection

has occurred.
[1]
Second, the
assessment of quantum is a matter within the discretion of the trial
court. A court on appeal will not interfere with
the exercise of such
discretion unless there is a striking disparity between what the
trial court ordered and what the appeal court
would award.
[2]
[6]
Historically
an award of such damages was considered a
solatium.
[3]
The
primary purpose of
a
solatium
is
not to enrich a claimant but to assuage injured feelings and dignity.
[4]
Hence
the
damages awarded must be commensurate with the physical and mental
injury
inflicted.
[5]
An
award for an arrest and detention that is a 'traumatic experience'
would take into account the subjective experience of the claimant.
[6]
However,
the assessment of the amount of an award for iniuria of this kind is
hardly capable of calculation with ‘
mathematical
accuracy’.
[7]
[7]
In
assessing the amount of such award the criteria to consider would
include the age of the plaintiff, the circumstances of his
arrest,
the nature and duration of his detention,
[8]
the social and professional standing of the claimant, the motive for
the arrest and past awards for similar cases.
[9]
Comparing with
other
cases may be a useful guide;
[10]
but
slavish adherence to precedent can be ‘treacherous’,
especially if context is sacrificed in the assessment.
[11]
Judicial
officers are also not required to adopt a tick-box or checklist
approach in the exercise of their discretion. Pleadings
and proofs
guide the court in choosing criteria that go to determining quantum;
if criteria are not pleaded and proved specifically
then judicial
officers are at large to exercise their broad discretion to determine
‘just and equitable’ remedies.
[12]
[8]
Ultimately
the exercise of discretion must result in the court striking a
balance between
the
importance of the right to personal liberty and the seriousness with
which any arbitrary deprivation of personal liberty is
viewed on the
one hand, with avoiding extravagance in compensating for loss of
liberty and dignity on the other hand.
[13]
The
first claimant
[9]
The
objection to the trial court’s assessment rests on two main
grounds: the duration of the detention and the conditions
of
detention. Regarding the duration, should the assessment of his
quantum be limited to the duration of his detention under
s 50
of the
Criminal Procedure Act, 1977
because thereafter he was detained by
order of the court? Or, should the extension of his detention after
his first appearance
to the date of his release be included in the
assessment? In its judgment the trial court did not specifically
mention the duration
of the first claimant’s detention as a
factor. As it arises specifically in this appeal this court has to
deal with it.
[10]
The
duration of the detention featured in
Woji
v Minister of Police
2015
(1) SACR 409
(SCA). In that matter, the Supreme Court of Appeal
included for the purposes of calculating quantum the period of the
further detention
after the first appearance because the court found
that the investigating officer had a ‘public law duty not to
violate [the]
right to freedom,
either
by not opposing his application for bail, or by placing all
relevant and readily available facts before the magistrate.
’
[14]
In
Minister
of Safety and Security v Tyokwana
2015
(1) SACR 597
(SCA) para 38 the Supreme Court of Appeal pointed out
that a court ordered detention after an unlawful arrest does not
automatically
render the detention lawful.
Whether
remanding an accused in custody and refusing him bail renders his
subsequent detention lawful or not must be determined
with due regard
to all the facts.
[15]
Therefore it is necessary to enquire into the circumstances of the
arrest and detention of the first claimant.
[11]
The
defendant bore the onus of proving the lawfulness of the arrest and
continuing detention. The arresting officer testified that
he acted
on instructions from another officer who did not testify.
Consequently the arresting officer was unable to attest to any
facts
to prove that the arrest and detention of the first claimant was
lawful. Furthermore his evidence in court differed from
his affidavit
in the docket recording the circumstances in which he arrested the
first claimant. Therefore his evidence was unreliable.
In the
circumstances the trial court found that the arrest and detention
were unlawful. Whether the court would have come to the
same
conclusion if it had considered the evidence at the bail hearing
(which it apparently did not) is uncertain; however, the
lawfulness
of the arrest and detention is out of our reach as the appeal
proceeds on quantum alone.
[12]
The
policeman testified in the bail hearing that he had ‘no proof
at this stage’ and only ‘indirect evidence’
of the
involvement of the claimants. However, the search for the stolen
cellular phones and the firearms used in the robbery was
on-going.
Furthermore, there were three suspects involved but only the two
claimants had been arrested. The police opposed bail
but were
prepared to consent to it provided the claimants did not interfere in
the investigation.  The magistrate hearing
the bail application
was scathing about the lack of evidence and the police ‘arresting
them for nothing.’ As soon as
bail was granted the prosecutor
withdrew the charges.
[13]
In
my view if the evidence justified the release on bail and the
withdrawal of the charges, the timing of these events is relevant.
At
the first appearance four days after the first claimant’s
arrest, the court would have exercised its discretion on the
basis of
the information proffered by the police, the prosecution and the
claimant. This court is not privy to what that information
was.
However, it is reasonable to infer from the evidence for the state at
the bail hearing that at the first appearance the investigation
was
at a formative stage. The police acted on a report from the
community. The three suspects were three brothers, one of whom
had
been shot in the robbery and had not been arrested; the other was the
second claimant from whom R6 000 in R200 notes allegedly
stolen from
the robbery was found. Thus the further detention of the first
claimant at the instance of the police and the prosecution
and
endorsed by the court at the first appearance was justified. The
withdrawal of the charges on 6 June 2013 about a month after
the
arrest was a prosecutorial decision. The National Director of Public
Prosecutions is not cited in these proceedings; consequently
there is
no evidence as to whether the decision to withdraw the charges should
have been taken sooner.
[14]
The
evidence at the bail hearing was highly relevant for determining the
lawfulness of the arrest and the duration of the detention
at the
instance of the police in order to assess quantum.
Woji
v Minister of Police
2015
(1) SACR 409
(SCA) raises the issue of the duration of the detention
and the public duty of policemen to protect the liberty of people.
Unlike
in
Woji
,
the evidence in this case does not suggest any negligence,
misrepresentation or malice on the part of any of the public
officials
involved. Consequently, liability for the unlawful arrest
and detention attaches only to the defendant and is limited in
duration
to 7 to 11 May 2013. Again I emphasise that the liability of
the defendant was not a ground of appeal.
[15]
Turning
to the second leg of the challenge i.e. the assessment of quantum,
the trial court’s reasons rested on two legs: First
it noted in
its reasons for judgment that the first claimant had been out on bail
when he was arrested. One of the grounds of appeal
is that the trial
court should not have considered the fact that he had been arrested
before.  Counsel did not submit any
authority to support this
ground. What inference the trial court drew from the fact that the
first claimant had been arrested before
is not evident from the
reasons. However, reading between the lines it seems that the trial
court reasoned that the arrest and
detention of a person who has
never been arrested and detained before is distinguishable from the
case of someone who has been;
the trauma for a person undergoing the
experience for the first time would be greater than for a person who
has undergone such
an experience. Of course, facts could disprove
this inference but there were none in this case.  Taking the
prior arrest and
detention into account is not a misdirection.
[16]
Second
first claimant criticised the trial court for relying on two previous
cases that yielded low awards. First in
Minister
of Safety and Security v Kruger
(183/10)
[2011] ZASCA 7
(8 March 2011) the court reduced an award of
R50 000 to R20 000. In that case the facts were that a television
crew was present
and broadcasted the arrest of that claimant who was
from a small town; therefore his arrest received some publicity.
[17]
In
this case the first claimant fails to make out any case that his
arrest and detention had received any publicity. He was arrested
at
03h00, handcuffed and transported in the back of a police van. There
is no evidence that his arrest attracted any public attention
at all.
[18]
Another
criticism was that the trial court did not take into account the
duration of the detention in
Kruger
and whether it was lawful or not. I dealt with the duration of the
detention above.
[19]
Second,
in
Lindile
Mbotya
v
Minister
of Police
(1122/10) [2012] ZAECPEHC 43 (10 July 2012) the plaintiff claimed
damages in the amount of R250 000 and the court awarded
R55 000
for unlawful arrest and detention for two days without an appearance
in court. That case is similar to this case in which
the trial court
awarded R10 000 more for detention over 4 nights.
[20]
The
first claimant referred this court to
Minister
of Police and another v Du Plessis
2014 (1) SACR 217
(SCA) in which the Supreme Court of Appeal awarded
the plaintiff R100 000 in damages. He was detained for ten days.
Therefore
that case is distinguishable.
[21]
It
is not the first claimant’s case that he made specific
submissions that the trial court disregarded or rejected. If any

other factors informed the trial court’s assessment of quantum
they do not appear in the reasons. However, captured in the
main
judgment is the evidence of both claimants that their conditions of
detention were unsanitary and appalling. They ate, slept
and waited
in crowed police cells. The toilet failed to flush; consequently they
suffered the constant presence and stench of faeces.
Blankets were
inadequate. As an asthmatic sufferer, the first claimant was exposed
to smokers in the cells. Other detainees kept
both claimants awake
until dawn with their singing.
[22]
In
my view these are such inhumane conditions of detention that they are
an affront to the dignity of detainees and an embarrassment
to all of
us as people in a constitutional democracy. As the trial court noted
these conditions of detention for both claimants,
it can safely be
assumed that it factored them into the assessment of the first
claimant’s quantum, and justifiably so.
[23]
In
my view applying the criteria for assessing quantum summarised above
the award of R65 000 falls within the range of reasonable
awards. As
I said above, assessing damages does not call for a checklist
approach. I would not interfere with the trial court’s

decision.
The
second claimant
[24]
The
second claimant passed away on 18 October 2015 after pleadings had
closed. His estate is entitled to or liable for any order
that the
court makes.
[16]
The question
to consider here is: did the police reasonably suspect that the
second claimant committed an offence under Schedule
1 of the
Criminal
Procedure Act 51 of 1977
?
[25]
The
common cause facts or facts not in dispute were that the police
received information that the second claimant was on his way
to the
hospital with cash of R6 000 in denominations of R200 notes stolen
during a robbery to bribe the police to release from
custody his
brother who had been shot in the robbery. The arresting officer had
to act swiftly and did so. When he arrested the
second claimant he
found these notes in the possession of the second claimant who was on
route to the hospital. He testified that
initially the second
claimant denied having any money on him. On these facts the police
had a reasonable suspicion to arrest the
second claimant on a charge
of robbery.  Bribery was an additional ground on which they
could have charged him.
[26]
Against
these facts the grounds of appeal that the trial court erred in
relying on the evidence of the arresting officer, that it
should have
found him to be unreliable, that it erred in relying on ‘verbal
information’ received from an informer
unsupported by an
affidavit, are unsustainable.
[27]
Although
the trial court considered the lawfulness of the arrest from the
perspective of
s 40(1)(b)
of the
Criminal Procedure Act, 1977
only,
the second claimant’s possession of the R200 notes also
justified an arrest without a warrant under
s 40(1)(e).
[28]
The
second claimant’s case is distinguishable on the facts from the
first claimant’s case in which the police witness
testified
that he had no information about any crime committed by the latter.
It is also distinguishable from
Woji
in which the only evidence against a suspect was video footage that
did not show him to be one of the robbers.
[17]
[29]
Regarding
his detention the second claimant endured the same appalling
conditions of detention as the first claimant.  Irrespective
of
the reasons for the arrest and detention no human being should be
subjected to such treatment that is tantamount to punishment
before
being convicted of any offence. As I have said elsewhere such
punishment is cruel and unusual.
[18]
[30]
Whereas
the conditions of detention could be factored into the award of the
first claimant because the finding of unlawfulness of
the arrest and
detention triggered the exercise by the court of its discretion, the
same cannot apply to the second complainant.
The second claimant did
not put on notice the defendant or any other entity responsible for
the conditions of prisons (such as
the Department of Public Works or
private cleaning companies) that it would be claiming damages
specifically for the appalling
conditions of detention.  Even
though such conditions were proved, they were not specifically
pleaded or argued. Notwithstanding
permission to the appellants to
deliver additional heads after reserving judgment the second claimant
did not address the court
on the inhumane conditions specifically. To
allow the second claimant to claim compensation for such conditions
would also amount
to setting a precedent with polycentric
implications that ramify not only into the realm of other actors
involved in determining
conditions of detention but also into a range
of specialist fields beyond the competence of the court, including
economics and
psychology. Venturing in this direction without the
litigants and other interested parties participating in the
production of the
court’s decision falls beyond the remit of
this appeal.
[31]
In
the circumstances, the findings of the trial court in respect of both
claims are unassailable.
Costs
[32]
Regarding
costs the court is mindful that dismissing the appeal with costs
could work a hardship on claimants who are indigent.
It could also
have a chilling effect on the exercise of the right to access to the
courts. On the other hand if the court deviated
from the usual rule
that costs should follow the result the court would be encouraging
disgruntled litigants to lodge frivolous
claims. The appropriate cost
order is therefore to follow the general rule; it will then be left
to the respondent to exercise
its prerogative as to whether it
recovers its costs.
Order
[33]
The
appeal is dismissed with costs.
_________________
D.
Pillay J
I
agree.
_________________
A.N
Jappie J.P
APPEARANCES
Counsel
for the appellant

:        J.H du Plessis
Instructed
by

:        Mbhele, Dube &
Partners
Tel:
039 259 0282
Ref:
ZOM/lom/Z87
mbheledube@gmail.com
Counsel
for the respondent

:     M. Mazibuko
Instructed
by

:     Forster & Govender Attorneys
c/o BJ
Nicholson
Tel: (033) 396 4791
bjnicolson@telkomsa.net
Date
of Hearing

:        20 October 2017
Date
of Judgment

:        03 November 2017
[1]
Mnyandu v
Padayachi
2017
(1) SA 151
(KZP) para 28.
[2]
Road Accident Fund v Marunga
2003 (5) SA 164
(SCA) para 23;
Protea
Assurance Co Ltd v Lamb
1971 (1) SA 530
(A) at 534H – 535A;
Minister
of Safety & Security v Seymour
2006 (6) SA 320
(SCA) para 11.
[3]
Minister of Safety and Security v
Tyulu
2009 (5) SA 85
(SCA)
para 26-27.
[4]
Minister of Safety and Security v
Tyulu
above para 26-27.
[5]
Minister of Safety and Security v
Tyulu
above para 26-27.
[6]
Ciyane
v Minister of Safety and Security and others
[2015]
JOL 33938
(GJ) para 57.
[7]
Minister of Safety
and Security v Tyulu
above
para 26-27.
[8]
Woji
v Minister of Police
2015 (1) SACR 409
(SCA) para ?;
Isaacs
v minister Van Wet en Orde
[zRPz]
1996
(1) SACR 314
(A) (headnote)
.
[9]
Minister of Safety and Security v
Tyulu
para 27
[10]
Sibaya
v Minister of Safety and Security
[2008] ZAKZHC 44
;
[2008]
4 All SA 570
(N) at 572.
[11]
Minister
of Safety and Security v Tyulu
above para 26-27;
Minister
of Safety and Security v Seymour
above
para 17.
[12]
S 172 of the
Constitution of the Republic of South Africa, 1996.
[13]
Steenbergen
& others v Minister of Safety & Security
[2011]
JOL 27529
(FB) para 22.
[14]
Woji v Minister
of Police
2015
(1) SACR 409
(SCA) para 28.
[15]
Minister Of
Safety And Security v Tyokwana
2015
(1) SACR 597
(SCA) para 38.
[16]
Minister of
Justcie and others v Estate Stransham Ford
2017
(3) SA 152
(SCA) para 19.
[17]
Woji
v Minister of Police
above
para 4.
[18]
Maharaj
v Minister of Safety and Security
(11275/2012)
[2017] ZAKZDHC 38 (5 October 2017)