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[2016] ZAGPPHC 405
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Mokaedi v Minister of Police and Another (3503/2012) [2016] ZAGPPHC 405 (3 June 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Not
reportable
Not
of interest to other Judges
CASE
NO:
3503/2012
3/6/2016
In
the matter between:
EE
MOKAEDI
Plaintiff
and
MINISTER
OF
POLICE
First
Defendant
COLONEL
MP
MOKGOSI
Second
Defendant
Heard: 30
May 2016
Delivered: 3
June 2016
Coram:
Makgoka J
Summary:
Damages - assessment of - malicious prosecution - duration and
conditions of detention - personal circumstances and other
factors
considered.
JUDGMENT
MAKGOKA.
J
[1]
This is a delictual claim arising from malicious prosecution of the
plaintiff, Mr Mokaedi, following charges of corruption and
theft
falsely laid against him at the instigation of the second defendant,
who was acting within the course and scope of his employment
with the
first defendant, the Minister.
[2]
He was detained in custody for nine days from 19 May 2008 to 27 May
2008, when he was granted bail. On 19 February 2009 all
charges were
withdrawn against him. On 22 August 2011 the Director of Public
Prosecutions declined to prosecute him. The defendants
have conceded
liability. Therefore, the only issue that falls for determination is
the
quantum
of damages.
[3]
The only evidence was that of Mr Mokaedi. The defendants closed their
case without calling any witnesses. Briefly, Mr Mokaedi
testified as
follows. He is 51 years old (he was 43 years old at the time of the
incident). He is a police officer, holding the
rank of warrant
officer. He has been in the police service since 1989, when he joined
the then Bophuthatswana Police Force. At
the time of his arrest, he
was stationed at the Mahikeng Police Station in North West Province.
He is a widower, his wife having
passed away in August 2008. From
their marriage, three children were born, who were aged 12, 8 and 1
at the time of the incident.
He and his wife decided to keep the
truth from the children, as to why he was away from home during the
period of detention. Regarding
the circumstances in which he was
held, Mr Mokaedi testified that he was detained at police cells 40
kilometres from his home,
which made it difficult for his wife and
family to visit him. The conditions of his detention were not bad. He
was detained in
a single cell and provided with enough blankets. He
had meals three times a day, of which he had no complaint regarding
the quality.
However, the water was cold, as a result of which he
could not bath, given that it was winter.
[4]
As to the impact of the incident on him, Mr Mokaedi testified that he
was 'disturbed' by the incident. His late wife, who was
also a police
officer, repeatedly enquired from him as to the reason for his
arrest. After being granted bail he was transferred
to another police
station. The incident also had a negative impact on his relationship
with his fellow police officers, who seemed
to distance themselves
from him. However, after the case was withdrawn, the relations
normalised after he was reinstated to his
position at the police
station where he was stationed before he was arrested.
[5]
Mr
Rossouw
SC, counsel for Mr Mokaedi, submitted that an
amount in the region of R300 000 would constitute adequate
compensation in the circumstances.
Counsel made this submission on
the comparable award made in
Minister of Safety and Security
2013
(4) SACR 231
(SCA). Ms
Pi/lay,
counsel for the defendants, on
the other hand, contended for a figure of R200 000, with reference
to, among others,
Solomon v Visser
1972 (2) SA 327
(C);
Rahim
v Minister of Home Affairs
2015 (4) SA 433
(SCA).
[6]
Although some guidance can be obtained by having regard to previous
awards made in comparable cases, which afford a useful guide,
the
process of comparison is not a meticulous examination of awards, and
should not interfere upon the court's general discretion,
as stated
in
Protea Assurance v Lamb
1971 (1) SA 530
(A) at 535B-536A;
Minister of Safety and Security v Seymour
2006 (6) SA 320
(SCA) paras 17 and 18.
[7]
The proper approach to assessment of damages in matters such as the
present includes the evaluation of the personal circumstances
of the
plaintiff, which includes his standing in the community and the
circumstances around the arrest, as well as the nature and
duration
of the detention. See
Ngcobo v Minister of Police
1978 (4) SA
930
(D) at 935B-F. The purpose is to compensate a claimant for
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) para 26, where it was emphasised that the
primary purpose was 'not to enrich the claimant but to offer him or
her some much-needed
solatium
for his or her injured
feelings.'
[8]
I am quite aware of, and take into account, the recent tendency by
our courts to make higher awards than has been the trend
in the past.
See
Road Accident Fund v Marunga
2003 (3) SA 164
(SCA) (para
27) where the rationale therefor was articulated, with reference to
Wright v Multilateral Vehicle Accident Fund,
in
Corbett and
Honey, The Quantum of Damages in Bodily and Fatal Injuries
Cases
vol 4 at E3-31. However, the remarks in
Marunga
were tempered
later in
De Jongh v Du Pisanie N.O.
2005 (5) SA 457
(SCA) at
para 60, where, after noting that the tendency towards increased
awards in respect of general damages in recent times
was readily
perceptible, the court reaffirmed conservatism as one of the multiple
factors to be taken into account in awarding
general damages. The
court concluded that the principle remained that the award should be
fair to both sides - it must give just
compensation to the plaintiff,
but 'not pour out largesse from the horn of plenty at the defendant's
expense', as pointed out in
Pitt v Economic Insurance Company
Limited
1975 (3) SA 284
(N) at 287.
[9]
In the present case, I take into account the following: Mr Mokaedi is
a well respected member of the community, having
progressed
through the ranks of the police to the position of a Warrant Officer.
He was detained for nine days. However, the conditions
of his
detention were not deplorable beyond the inconvenience of being
detained. Unlike the plaintiff in
Du
Plessis, who was
incarcerated under conditions which the Court described at para 35 as
'appalling', Mr Mokaedi was kept in a single
cell and provided with
enough blankets and meals three times a day. His arrest and detention
does not seem to have had long-term
effect on the respect and esteem
with which his colleagues held him as they embraced him once the
charges were withdrawn against
him. The arrest and detention did not
affect his career as he was reinstated to his position.
[10]
Having said that, deprivation of liberty remains a serious human
right violation. In
Masisi v Minister of Safety and Security
2011
(2) SACR 262
(GNP) this court the following at para 18:
'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 345C-E, 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.'
[11]
In
Du Plessis
the Supreme Court of Appeal said the following
at para 15:
'Our
new Constitutional Order, conscious of our oppressive past, was
designed to curb intrusions upon personal liberty which has
always,
even during the dark days of apartheid, been judicially valued, and
to ensure that the excesses of the past would not recur.
The right to
liberty is inextricably linked to human dignity. Section 1 of the
Constitution proclaims as founding values, human
dignity, the
achievement of equality and the advancement of human rights and
freedoms. Put simply, we as a society place a premium
on the right to
liberty.'
[12]
In the light of all the circumstances of the case, I conclude that an
amount of R250 000 would be constitute adequate compensation
for Mr
Mokaedi.
[13]
With regard to costs, Ms
Pillay
submitted that the costs of
senior counsel are not warranted in the circumstances of the case. I
agree. Mr
Rossouw
did not press for such costs.
[14]
In the result the following order is made:
1. The defendants are
ordered to pay the plaintiff the following:
1.1.
An amount of R250 000;
1.2.
Interest on the above amount, which shall run at the prescribed rate
from the date of judgment to the date of final payment;
1.3.
The costs of the action.
2. The above amounts are
to be paid by the defendants jointly and severally, the one
paying, the other to be absolved.
_______________________
T.M.
Makgoka
Judge
of the High Court
Date
of hearing:
30 May 2016
Judgment
delivered:
3 June 2016
Appearances
For
the Plaintiff:
Adv. AB.
Rossouw
Instructed
by:
Van Zyl le Roux Inc., Pretoria
For
the Defendants:
Adv. L. Pillay
Instructed
by:
State Attorney, Pretoria