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[2016] ZAGPPHC 61
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Ngobeni v Minister of Police (49069/2013) [2016] ZAGPPHC 61 (9 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,PRETORIA
CASE
NO: 49069/2013
9/2/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
VINCENT
NGOBENI Plaintiff
and
THE
MINISTER OF
POLICE Defendant
JUDGMENT
MOTHLE
J
1.
Vincent Ngobeni, an adult male Metro Police
Officer in Tshwane,
(" the Plaintiff' ),
instituted action against the Minister
of Police
(" the Defendant' )
for
damages arising out of an unlawful arrest, detention and assault by
members of the South African Police.
2.
In defending the action, the Defendant filed a
plea that is a bare denial of the allegations and also at trial,
failed to call any
witnesses. In short, the allegations of unlawful
arrest, detention and assault on the part of the Plaintiff remained
uncontested
as the Defendant did not have any alternative version.
3.
The brief background to the incident is that:
3.1.
on 15 of June 2013 whilst the Plaintiff was a
trainee for Metro Police, he was accosted by 3 persons who at that
time were in civilian
clothes. These persons turned out to be members
of the police. They demanded to search him and when he, in turn,
demanded that
they identify themselves as they claimed to be police
officers, they then started assaulting him in full view of the
public.
3.2.
According to the evidence of the Plaintiff, these
men were later joined by other approximately 7 policemen who
participated in the
assault. He was then subdued, handcuffed and
placed in a police vehicle. He was informed that he is being placed
under arrest.
3.3.
The police vehicle took him to the Pretoria
Central Police Station were he was kept in a holding cell. It was
while he was in the
police station that a senior officer from the
Metro Police intervened on his behalf and he was released. According
to the Plaintiff,
this whole incident took place between 11H00 and
14H00 (3 hours).
4.
After his release from the police station he then
went to the Tshwane District Hospital where he received treatment for
his injury.
The J88 medical report from the doctor at the hospital
indicates that he had a hematoma on the right side of the head.
5.
The Plaintiff was the only witness to testify in
support of his action. The cross-examination of Plaintiff by the
Defendant's counsel
centred around the allegation by the Plaintiff
that when he arrived at the hospital he had experienced some bleeding
on the head.
Counsel for the Defendant pointed out that if there was
such bleeding the doctor would have indicated it on the report. The
Defendant
does not dispute the merits of the allegations relating to
unlawful arrest, detention and assault visited on the Plaintiff by
the
police officers. Plaintiff s injuries are also not disputed.
6.
Thus having regard. to the pleadings and the
evidence by the Plaintiff, I am persuaded that the latter has made
out a case on the
merits. The Defendant is therefore liable for
payment of damages suffered by the Plaintiff consequent to the
unlawful arrest, detention
and assault.
7.
The Plaintiff has lodged 2 claims. Claim 1 is for
arrest and detention wherein he prays for compensation of
R100,000.00. Claim 2
is for assault, wherein he also prays for
payment of R100,000.00. There is also a prayer for costs.
8.
Neither party presented evidence on the
quantification of the damages to be awarded. Counsel for both parties
addressed the Court
at length concerning the amount that has to be
awarded as damages. Each of the counsel further submitted a bundle of
cases in support
of their contentions, for which I am Indebted.
9.
It will however be beyond the scope of this
judgment to deal with all these cases, which in any event serve only
as a guide. 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
serves 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".
10.
And at p326 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."
11.
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 t/a 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 Safety and
Security and Others
2005
(5) SA 130
(CJ,
a
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).
12.
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.
13.
One of the cases which both counsel rely on and
which has striking similarity with the present case, is the
unreported judgment
of Van Costen J in the matter of
Ngema
v Minister of Police South Gauteng High Court, Johannesburg; Case No.
508112011, judgment delivered on 24 May 2012.
In
this matter, the Plaintiff was arrested at approximately 06H30. He
was slapped, punched and kicked by members of the South African
Police Service. He was detained in a police holding cell until
approximately 09H15 the same day when he was released. On examination
by a doctor, the following injuries were detected:
a.
Small haemorrhages of both eyes,
b.
tenderness of the neck and right lower chest,
c.
two small lacerations of the left hand and
d.
bruising on the right knee and leg.
14.
The wounds were cleaned, a dressing was applied
to the injuries on the hand and eye ointment and anti-inflammatory
medication given
to him. On a claim of unlawful arrest, detention and
assault, Van Costen J awarded a global amount, which included all
claims,
of R40,000.00. The initial claim in the summons was in the
amount of R250,000.00. The assault took place in April 2010, 3 years
before the incident which gave rise to the present case.
15.
The similarities between the Ngema case and the
present case are that .both relate to claims of unlawful arrest,
detention and assault.
Further, in both cases the claimant was kept
in custody in a holding cell for approximately three (3) hours.
However, the injuries
in the Ngema case were quite substantial and
more severe than the ones sustained by the Plaintiff in the present
action.
16.
Counsel for the Plaintiff submitted that the
circumstances of the present case were such that the police acted
with malice. With
reference to an unreported decision by Makgoka J of
this Division, he contended that the award should be increased
because of the
presence of malice. I am not persuaded that the
circumstances of this case, while raising the possibility of malice
on the part
of the police, warrants a punitive measure in the form of
increasing the award. Suffice to state that where members of the
police
arrest a person without any intention of bringing such person
to Court to answer any charges, there is indeed malice. Counsel,
however, could not establish how this presumed malicious conduct on
the part of the police should result in an increase in the award
to
the Plaintiff. Malicious conduct on the part of the police is a
matter which speaks to the overall conduct and should be sanctioned
by police management through internal disciplinary procedures. No
increase in the award to the Plaintiff would be necessary as
a
sanction for this behaviour.
17.
I am persuaded that the circumstances of this
case reflect that of
Ngema v Minister of
Police.
I am informed by counsel for the
Defendant that the award of R40,000.00 made by Van Oosten J, in 2010
is now R49 000.00, using Robert
J Koch scales of inflation adjusted
awards in Quantum of Damages.
18.
Although the Plaintiff sought to distinguish the
claim of unlawful arrest and detention from assault, I am of the view
that in this
particular case all three claims arose in one single
incident over a period of 3 hours. The assault in particular, was
committed
in the execution of the arrest. I will therefore make an
award that includes all of them in one globular amount.
19.
In regard to costs, Plaintiff's counsel submitted
that because of the conduct of the police, and the fact that no
substantial defence
to the claim was offered, the Court should
consider granting punitive costs. I do not agree. While the costs are
a matter of the
Court's discretion, it would not be proper for the
Court to punish a litigant with punitive costs simply because such
litigant
mounted a weak defence or a defence that is simply a bare
denial. I am of the view that the ordinary costs should follow the
result.
20.
In the premises I make the following order:
1.
That the Defendant is liable to pay to the
Plaintiff compensation for damages arising out of the unlawful
arrest, detention and
assault visited on him on 15 June 2013;
2.
The Defendant is ordered to pay an amount of
R49,000.00 to the Plaintiff as compensation for the damages.\
3.
The Defendant is ordered to pay the costs of suit
on a party- party scale, including costs of counsel.
__________________
S
P MOTHLE
Judge
of the High Court
Gauteng
Division, Pretoria
For
the Plaintiff.
Advocate
C Zietsman
Instructed
by: Loubser
van der Walt Inc.
Brooklyn
Pretoria
For
the Defendant
Advocate H 0 R Modisa
Instructed
by: The State
Attorney
Pretoria