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[2016] ZAGPPHC 383
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Mahlangu v Minister of Safety & Security (46454/10) [2016] ZAGPPHC 383 (18 May 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 46454/10
DATE:
18 MAY 2016
In
the matter between:
MIRRIAM
MEIKIE
MAHLANGU
...................................................................................
PLAINTIFF
And
MINISTER
OF SAFETY &
SECURITY
........................................................................
DEFENDANT
JUDGMENT
KUBUSHI,
J
[1]
The plaintiff, in this instance, issued
summons against the defendant, the Minister of Safety and Security,
for damages emanating
from her unlawful arrest and detention, assault
and malicious prosecution. The plaintiff’s evidence is that she
was arrested
by members of the South African Police Service, who at
the time were acting within the course and scope of their employment
with
the defendant.
[2]
In terms of uniform rule 33 (4) the
issues were separated. The matter was heard first on the merits and
the trial court found in
favour of the plaintiff and granted the
following order: 1) the plaintiff’s claim on the merits
succeeds with costs; 2) the
claim for quantum is postponed sine die
for determination.
[3]
The matter is before me for the
determination of quantum.
[4]
The parties agreed in a pre-trial minute
of 3 March 2015, in respect of quantum, that: a) there is no need to
lead oral evidence
of any sort; b) the parties will argue on quantum
based on the law and on available documentation and reports.
[5]
The plaintiff’s submission is that
she is entitled to the amount of R750 000 claimed in the summons for
the unlawful arrest
and detention, assault and malicious prosecution,
whilst the contention by the defendant is that the amount claimed by
the plaintiff
is in the circumstances of this case exorbitant and
should not be awarded. The defendant instead proposes an amount of
R120 000
to be fair and equitable.
[6]
The trial court, based on the
plaintiff’s evidence, found that during the arrest of the
plaintiff she was assaulted with an
open hand by a female officer and
thereafter kicked with booted feet by constable Skosana until she
fell to the ground. As a result
of such assault she sustained
injuries which occasioned that she be taken to the hospital for
treatment. The trial court did not
make any findings as to the type
of injuries the plaintiff sustained. But in argument before me and in
the plaintiff’s heads
of argument, the submission is that the
plaintiff was repeatedly kicked in the abdomen and as per the J88
form, sustained softness
and tenderness on the left abdominal flank
and redness on the left eye which was swollen.
[7]
The submission by the plaintiff is also
that, when considering quantum, I should take into account the manner
in which the plaintiff
was assaulted which amounted to the abuse of
power on the part of the police officer; an act of contempt and
embarrassment to the
plaintiff resulting in an insult to her dignity
and self-worth.
[8]
In regard to the claim of unlawful
arrest and detention, except for finding that the plaintiff was
wrongfully arrested, the trial
court did not consider the issue of
unlawful detention at all in its judgment, as a result, it did not
determine the period within
which the plaintiff remained in custody
after the arrest. I note that the period is stated in the plaintiff’s
pre-trial questions
as 16 hours.
[9]
The plaintiff’s submission that
she was in detention for a period of 17
1
/
2
hours calculated from 21h00 on 12 February 2010 when she was arrested
and remained in detention until she was released on police
bail at
about 14h15 the following day, can, therefore not be taken as
correct.
[10]
In respect of malicious prosecution, the
trial court made a finding that the plaintiff was able to establish
malice on the part
of the defendant and concluded that the
requirements of malicious prosecution have been established.
[11]
It is trite that there is no fixed
formula for the determination of quantum in matters of this nature. A
court has a wide discretion
in determining the amount of damages for
compensation. Each case must be decided on its merits and the
circumstances of what is
just and fair.
[12]
The parties provided me with a plethora
of case law as a guide in determining a just and fair amount in
respect of the plaintiff’s
claim. Ordinarily, it is impossible
to determine an award of damages for these kinds of injuria with any
kind of mathematical accuracy.
[13]
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
quantum of damages on such facts.
[I]
[14]
The facts of this case are that from the
evidence given by the plaintiff it does not appear as if she suffered
serious injuries.
She was also not detained for a long time as she
was released the following day. She was in custody for 16 hours. I
should, however,
not discount the fact that she was kicked in the
abdomen and complained of softness and tenderness on the left
abdominal flank
and the assault with an open hand caused the redness
in the left eye and the swelling; she felt humiliated and
embarrassed.
[15]
Having considered argument by the
parties and the case law provided, I am of the view that a just and
equitable amount to compensate
the plaintiff is in the circumstances
R175 500.
E.M. KUBUSHI
JUDGE OF THE HIGH COURT
APPEARANCES:
HEARD ON THE : 13 May 2016
DATE OF JUDGMENT : 19 May 2016
PLAINTIFF’S COUNSEL : ADV. L
G P LEDWABA
PLAINTIFF’S ATTORNEY : M. N.
MOABI ATTORNEYS
DEFENDANT’S COUNSEL : ADV. M
A B MAJOKO
DEFENDANT’S ATTORNEY : STATE
ATTORNEY
[I]
See
Minister of safety and
Security v Tyulu
2009 (5) SA 85
para [26] at 93D-F.