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[2016] ZAGPPHC 283
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Shabangu v Minister of Police and Another (19542/12) [2016] ZAGPPHC 283 (10 March 2016)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 19542/12
DATE:
10 MARCH 2016
In the matter
between:
BIKWAPI BETTY
SHABANGU
........................................................................................
PLAINTIFF
AND
MINISTER OF
POLICE
..........................................................................................
1ST
DEFENDANT
PHILLIP
NKOSI
......................................................................................................
2ND
DEFENDANT
JUDGMENT
MAVUNDLA. J.
[1] The plaintiff is
a 73 years old adult female is claiming from the defendants payment
of an amount of R3080,000, 00 in respect
of damages she suffered as
the result of the wrongful and unlawful arrest, detention , assault
and injuries she suffered at the
hands of the members of the police
on the 23 July 2010. The claim as per the amended particulars of
claim is in respect of:
1.1 general damages
for pain, suffering and contumelio,
defamation of
character, impairment of dignity R300 000.00 invasion of the right to
privacy 1.2 Future medical expenses R 8 000.00
Total R308 000. 00
[2] It is common
cause that the defendant's plea was on the 6 November 2015 struck out
due to their failure to deliver their replying
to the plaintiff's
notice in terms of rule 35(1) within 10 days of service of the order
dated 18 August 2015 directing them to
do so. The plaintiff was
granted default judgment on the merits and it was ordered that the
first and second defendants are liable,
jointly and severally, the
one to pay the other to be absolved to be, for 100% of the
applicant's proven damages. The matter is
therefore before this Court
only on quantum.
[3] The plaintiff
testified as well as one Ms Betty. The plaintiff was called to the
stand. Mrs Bikwapi Betty Shabangu testified
that she does not know
her age and unemployed. She was born 1943 72 years old. On the 23
July 2010 on a Thursday she heard loud
bangs at the children's rooms.
While the doors were banged a computer fell to the ground. The people
then came to the side she
was in and banged the window which fell and
broke. She was with her husband and two of her grandchildren She
opened the door unknown
people in civilian clothes came into her
house. When she asked these people who they are they told her not to
ask them and they
are looking for JJ. The latter is her son. The
intruders went into her grandchild's room who they assaulted. They
then came back
with her grandchild where she was. They did not say
anything nor show her any warrant. They assaulted her and placed a
black plastic
bag over her head and assaulted her as well as her
grandchild. She could not see as they continued to beat her while she
was in
the kitchen. She could not breathe because of the plastic over
her head. After assaulting her they took off the plastic and placed
her and her grandchild in a kombi. The assault in the kitchen was
with fists on her chest and waist; thereafter she and her grandchild
were placed in the kombi they were driving. Along the street they
picked up another lady by the name of Sonto from her place. They
drove off and stopped at another house where they picked up another
lady who was placed in a different vehicle. They drove to another
house where they picked up another person. They drove off up to the
tarred road where they stopped and dragged her out of the kombi
and
placed a plastic bag over her head and again assaulted her. She
injured her knees as they were assaulting her. They continued
assaulting her and saying that they are looking for JJ, her son. She
told them that JJ does not stay with her but at his own place.
They
said that they were from his place and could not find him. As they
were assaulting her she fell and wet herself as she was
lying on the
ground. When they took her from her place she only had a blanket over
her shoulders but did not have her shoes on.
She had a short
pinnacle. On realising that she was weak they put her back in the
kombi. They told her not to sit on the seats
but on the floor of the
vehicle because she had wet herself. She estimated the arrival of the
police at her place to have been
in the early hours at about 4 in the
morning. She was not taken to the police station but to her place
where they handed her cell
phone they took at her place. After the
people left she went to the police station together with her
grandchild. She was a cleaner
at a doctor's [lace but because of her
injuries on the knees she is no longer able to work. She went to a
doctor for treatment.
She reported the incident to the; police. She
has not been to school. She was afraid to go the court as she was
afraid of seeing
the police. She was traumatised to an extent that
she did not want to go to the court for fear of seeing the police;
She was assaulted
in front of her grandchild. At court when she had
gone there she met a police man by the name of Phillip Nkosi who said
to her
son JJ that he is showing him his mother, who knows him very
well because he got onto her house and assaulted her to an extent
that she wet herself. This he said in full view and hearing of the
public.
[4] On cross
examination she said that she did see the doctor completing the form
but did not know what he was writing. The sketch
marks were made by
the doctor after he had examined her and saw the injuries on the
knees where she was bleeding. Due to the fact
that they assaulted her
on her chest it is still soar at night she has to take water. Her
chest was swollen and one could see this.
The doctor saw that she was
injured and informed her that she no longer can work because she is
injured. She went to the doctor
shortly after she was dropped at
home. It was pointed out to her that according to the J88 form she
consulted the doctor on the
27 while the police assaulted her on the
23rd. When she went to the doctor her knees were no longer bleeding
but visible injured.
The swelling had subsided when she went to the
doctor.
[5] The plaintiff
under cross examination re-iterated that she was assaulted on the
chest as well as on the back. She sustained
injuries on her knees as
the result of falling during the assault. She further said that she
sustained injury on her lips as the
result of being kicked. She was
kicked on the chest, waist and knees. She said that because of long
time of the incident she cannot
recall everything that occurred. She
informed her attorneys that she was injured. It was pointed out that
according to her particulars
of claim she was injured all over the
body. She said that they assaulted her lot that is why her body is
still soar. In respect
of the J88 she said that the doctor she
consulted was not conversant with her language IsiZulu. She conceded
that her husband instituted
a claim which was settled and he has
already been compensated for the window.
[6] Ms Martha Sonto
Sithole was called as the next witness. She confirmed that she knows
Mrs Shabangu. On the 23 July 2010 police
came to her place and took
her out of the house and she heard her grandmother screaming. She saw
about 12 kombi's and the police
told her to get in one of the kombi
where she found her grandmother who was crying. When she asked why
she was crying someone swore
at her Voetsek. They drove off and at
the tarred road they took her grandmother out if the vehicle and
placed a plastic bag over
her head and assaulted her with open hands,
kicked her as she fell on the ground. She was dragged back into the
kombi and told
her not to sit on the seats but on the floor of the
vehicle because she had wet herself. When they assaulted her she
could see
because the vehicle was next to her as she was outside. The
witness emotionally said that the incident hurt her because she was
an elderly person and was assaulted In her presence. The police came
to her place in the early hours about 3 in the morning. It
would have
been about 7 am when they dropped the plaintiff. They assaulted the
plaintiff all over her body, kicking her and throwing
her on the
ground.
[7] The evidence of
the plaintiff is corroborated by the evidence of Ms Martha Sonto
Sithole.
[8] Both the
plaintiff and her witness, in my view, were impressive witnesses,
whose evidence I have no hesitation to accept. Besides,
the plea of
the defendant having been struck out, the unlawfulness on the conduct
of the police as described by both witnesses,
is no longer in issue,
and accordingly the defendants are liable to the plaintiffs proven
damages. Indeed, from the evidence of
plaintiff, as corroborated by
her witness, it is clear that there was no justification on the part
of the police to have conducted
themselves in the barbaric manner
they did. They went to the plaintiffs place looking for her son JJ.
She told them that he does
not stay there but at his own place. They
instead assaulted her in full view of her grandchildren, dragged her
into a Kombi, assaulted
her smothered her with a plastic bag, knocked
her to the ground, kicked her, made her sit on the floor of the kombi
because she
wet herself. They released her without taking her to the
police station or charging her. The duration of her ordeal was
approximately
from about 4 in the morning until 7 in the morning, 3
hours. The very fact that she was released without being taken to the
police
station is indicative of the fact that there was absolutely no
justification for her being deprived of her precious commodity,
liberty. The defendant is undoubtedly liable for the damages suffered
by the plaintiff.
[9] I now turn to
the assessment of her damages. Assessment and award of damages is a
matter of value judgment, guided however by
looking at previous
awards, and dictated upon by the unique circumstances of the
particular case. There is no mathematical accurate
method of
determining the amount to be awarded. As held in Minister of Safety
and Security v Seymour
2006 (6) SA p326
at para [20]: Monetary "award
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." I might add: o f deprivation of liberty, reversal of
the pain, humiliation
endured.
[10] In the matter
of Areff v Minister van Polisie
1977 2 SA 900
(A) the court awarded a
41 year-old businessman who was arrested and detained for about two
hours R1 000 which in present value
is R39000.00 (R19500 per hour x
3hrs=R58500.00.)
[11] In the
unreported judgment of Vuyisa Mgele v Minister of Police and two
others, Case No 1257/2011 Eastern Cape Divisoin Mthatha
, Stretch J
cited the following:
"[15] In
Minister of Safety and Security v M Tjulu
2009 (5) SA 85
(SCA) at 93
Bosielo JA said the following at paragraph [26] of the judgment:
'In the assessment
of damages for unlawful arrest and detention, it is important to bear
in mind that the primary purpose is not
to enrich the aggrieved party
but to offer him or her some much-needed solatium for his or her
injured feelings. It is therefore
crucial that serious attempts be
made to ensure that the damages awarded are commensurate with the
injury inflicted. However our
courts should be astute to ensure that
the awards they make for such infractions reflect the importance of
the right to personal
liberty and the seriousness with which any
arbitrary deprivation of personal liberty is viewed in our law. I
readily concede that
it is impossible to determine an award of
damages for this kind of injuria with any kind of mathematical
accuracy. Although it
is always helpful to have regard to awards made
in previous cases to serve as a guide, such an approach if slavishly
followed can
prove to be treacherous. The correct approach is to have
regard to all the facts of the particular case and to determine the
quantum
of damages on such facts) Minister of Safety and Security v
Seymour (6)SA 320 (SCA) 325 para 17; Rudolph & others v Minister
of Safety and Security & others
[2009] (2008/380) ZASCA 39
(31
March 2009) (paras 26-29/
[16] In Masisi v
Minister of Security and Another
2011 (2) SACR 92)
262 (GNP) at
paragraph [18] Makgoka J held that:
'The right to
liberty is an individual’s most cherished right, and one of the
foundational values giving inspiration to an
ethos premised on
freedom, dignity, honour and security. Its unlawful invasion
therefore strikes at the very fundament of such
ethos. Those with
authority to curtail that right must do so with the greatest of
circumspection, and sparingly. In Solomon v Visser
and Another
1972
(2) SA 327
( C) at 345A it was remarked that where members of the
police transgress in that regard, the victim of abuse is entitled to
be
compensated in full measure for any humiliation and indignity
which result. To this I add that where an arrest is malicious, the
plaintiff is entitled to a higher amount of damages than would be
awarded, absent malice.'
[12] In my view, the
deportment of the police, is reminiscent of the apartheid error, when
the police were the law unto themselves,
terrorised mostly the
disenfranchised communities, rudely knocked and kicked at their doors
in ungodly hours, had scant regard
to their dignity, assaulted them
for no good reason. In a democratic Constitutional epoch, with
enshrined wide range of personal
rights, in terms of s35, police
conduct such as meted to the plaintiff, warrants sever censor. In my
view, it is necessary to consider
visiting the wrath of the Court to
those members of the police who still abuse their authority, maltreat
people with disdain and
disregard to the ethos of the Constitution,
by mulcting such deviant characters personally with cost orders. I am
tempted to do
exactly that against the second defendant; order him to
pay the costs of this action in his personal capacity. However, such
approach
would require that a notice be issued and served on a
deviant member/ s of the police, warning him/ her/them that a costs
order
will be sought against him in his personal capacity.
[IB] The plaintiff
was rudely woken up in the early morning hours, assaulted repeatedly
in front of her grandchildren and husband;
removed from the sanctuary
of her home, not afforded an opportunity to dress properly. She was
subjected to the indignity of wetting
herself; At her age, she must
have been petrified, not knowing what else would become of her in the
hands of these rogue police.
There was no respect for her age and
gender; all these with her rights to dignity were trampled upon with
disdain, age, the plaintiff
certainty deserve to be fairly
compensated. She certainly deserves to be adequately compensated. I
do however, b ear in mind th
at the caution by Holmes J in Pitt v
Economic Insurance Co Ltd
1957 (3) SA 284
(D) at 287E- F cited with
approval in the matter of De Jongh v Du Pisanie NO
2005 (5) SA 457
(SCA) at page 582 that: " The court must take care to see that
its award is fair to both sides—it must give just compensation
to the plaintiff, but it must not pour out largesse from the horn of
plenty at the defendant's expense".
[14] In the result,
I am of the view that the amounts I intend to award herein bellow are
fair, reasonable and adequate to be a
balsam for the pain, indignity
and humiliation suffered by the plaintiff. I do bear in mind that
compensation awards are like a
mirage, never to be reached; neither
would any amount be enough.
[15] In the result I
make the following order:
1. That the
defendants are jointly, and severally, the one paying the other to be
absolved, ordered to
compensate the plaintiff damages in an amount of
(a) R58500.00 in
respect of unlawful arrest, detention;
(b) R100, 000. 00 in
respect assaults.
(c) Interest on the
amount of R158 500. 00 at the legal rate from a date 14 days after
the date on which this judgment is handed
down to the date of
payment; and
(d) Costs of suit,
to be taxed or agreed upon at the High Court scale.
N.M. MAVUNDLA
JUDGE OF THE HIGH COURT
HEARD ON THE : 09
/ 03 / 2016
DATE OF JUDGMENT:
10/03/2016
PLAINTIFF'S ADV :
ADV JJ. GERBER
INSTRUCTED BY :
ROETS & VAN RENSBURG INC
DEFENDANT'S ADV :
ADV N. P. YINA
INSTRUCTED BY :
STATE ATTORNEYS MAFIKENG