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[2016] ZAGPPHC 589
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Minister of Safety and Security v Zwane; In re: Zwane v Minister of Safety and Security and Another (14209/2014) [2016] ZAGPPHC 589 (12 July 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number 14209/2014
DATE:
12 JULY 2016
In
the matter:
THE
MINISTER OF SAFETY &
SECURITY
......................................................................
Applicant
And
GUGULETHU
TIMOTHY
ZWANE
...................................................................................
Respondent
In
re:
GUGULETHU
TIMOTHY
ZWANE
.........................................................................................
Plaintiff
And
THE
MINISTER OF SAFETY &
SECURITY
............................................................
First
Defendant
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTION
.........................................................................................................
Second
Defendant
JUDGMENT
Canca
AJ
[1]
The applicant seeks leave to appeal to
the Full Bench of this Division against the whole of my judgment and
order handed down on
27 May 2016. The respondent opposes the
application.
[2]
The judgment was in respect of an action
instituted by the respondent against the applicant and The National
Director of Prosecution.
In that action the respondent sought, inter
alia, the payment of damages in the sum of R600 000.00 for unlawful
arrest and a similar
amount for unlawful detention. That action was
opposed by both defendants.
[3]
The judgment and order handed down on 27
May 2016 reads as follows:
"1.
Judgment is granted in favour of the plaintiff against the first
defendant for payment of damages in respect of his unlawful
arrest in
the sum of R180 000.00, together with interest thereon at the
statutory rate as from the date of judgment, and costs.
2.
The plaintiffs claim against the second defendant is dismissed. No
order as to costs."
[4]
This application for leave to appeal is
based on some 15 grounds. I do not intend dealing with all of these
grounds as most of them
transverse issues in respect of which
reasoned findings are made in the judgment. I will limit myself to
some of the grounds which
deal with quantum.
[5]
In paragraph 12 of his grounds for leave to appeal, the
applicant states that the Court
"...having
found that there was no evidence before the court of the
circumstances and conditions of the Plaintiffs detention
to enable
the Honourable [Court] to determine a fair and reasonable
compensation, the Honourable Court nevertheless awarded a
compensation on (sic) the amount of R180 000.00 (One Hundred and
Eighty Thousand Rand) without laying a basis of how it arrived
at
this amount."
[6]
It is not immediately apparent to me how
the applicant as arrived at the above proposition. In paragraph 45 of
my judgment, I discuss
the conditions under which Mr Seymour, in
Minister of Safety and Security v Seymour
[2007] 1 ALL SA 558
(SCA),
was detained. He was detained for 5 days but only spent 24 hours in a
police cell. The rest of his detention was spent in
a hospital bed in
a clinic. He also had access to his family and a doctor. It was these
factors that the Supreme Court of Appeal
took into account in
reducing an award of R500 000.00 to R90 000.00.
[7]
Although there was no evidence that the
respondent in this matter had similar privileges or that the
conditions in the police cell
were poor, I assumed that the
respondent was subjected to the normal conditions of a police cell
during his detention. It was not
so much the conditions under which
the respondent was detained that informed the quantum in this matter
but rather the infringement
of his right to liberty and loss of
dignity as I have set out in the first sentence of paragraph [44] of
the judgment. See Minister
of Safety and Security v Van Der
Westhuizen 2015 JDR 0713 (GJ) para [30]. See also the dictum of
Claasen J in Liu Quin Ping v Akani
Egoli (Pty) Ltd t/a Gold Reef City
Casino
2000 (4) SA 68
(W) at 86D where the learned Judge states that
"Deprivation of one's liberty is always a serious matter"
[8]
It is probably important that I clarify
the relevance of the rest of the contents of paragraph [44] of my
judgment where I comment
on the effect the detention had on the
respondent. The respondent struck me as still being traumatised by
his experience. Although
I recognised that the respondent's
incarceration beyond his first appearance at Court, which I found to
have been lawful, probably
exacerbated his trauma, the three days he
was unlawfully detained must have been traumatic and distressing on
its own. I stress,
yet again, that the respondent should seek help
from an appropriate healthcare professional. His legal
representatives certainly
did him a disservice by not presenting
medical evidence as to his mental state from a healthcare
professional. Such evidence would,
to my mind, have had a not
insignificant impact on the quantum.
[9]
The applicant also argued that the award
was grossly excessive and that a sum of between R90 000.00 and R120
000.00 in the circumstances
of this case would have been fair and
reasonable. Interference by a superior Court is consequently
warranted so the argument continued.
[10]
It is well established law that for the
Court of appeal to interfere, it must, inter alia, be shown that the
disparity between the
award of the lower Court and that which a
superior Court will grant is striking. And, indeed, as is shown in
Seymour and Van Der
Westhuizen supra (where the award was reduced
from R400 000.00 to R200 000.00) Courts of appeal have dramatically
reduced some
of the awards made by a court a quo.
[11]
Mavundla J in City ofTswane Metropolitan
Municipality v Moses 2012 JDR 1233 (GNP) at para [16] states that the
R90 000.00 awarded
in Seymour supra in 2006 had a value of
approximately R150 000.00 in 2012. It is also instructive that, as
stated in paragraph[45]
of my judgment, counsel for the applicant
during the trial argued that, in the event that I found for the
respondent, an amount
of R120 000.00 would be appropriate without
stating how he arrived at that amount. In Rudolph and Others v
Minister of Safety and
Security and Another
2009 (5) SA 94
(SCA) the
Court awarded the appellants, who were unlawfully detained for three
days, R100 000.00 in 2009. In Rudolph, the Court
took into account
the fact that the appellants were detained under extremely unhygienic
conditions in arriving at the quantum.
Although there was no evidence
that the respondent was detained under similar conditions at the
Morgenson Police Station, a Court
is entitled, as stated at paragraph
[17] in Seymour supra, to look at the facts of a particular case as a
whole in assessing general
damages.
[12]
It is trite law that the assessment of
damages is a matter that lies within the discretion of the trial
Court and that a superior
Court only interferes when that discretion
was exercised incorrectly or wrongly. See the dictum of Theron JA in
Minister of Safety
and Security v Scott
2014 (6) SA 1
at 15G-H.
[13]
I have not been persuaded that, given
the constant depreciation in the value of money, the applicant's own
suggested award of R120
000.00, the fact that R90 000.00 was valued
at approximately R150 000.00 in 2012 and the R100 000.00 awarded in
Rudolph supra in
2009, the award of R180 000.00 was excessive in the
circumstances. I do not believe that the award is such that it
warrants interference
by a Court of appeal. Nor do I believe that my
discretion was exercised wrongly.
[14]
Having carefully considered the
submissions of both counsel and the authorities referred to, I do not
think that the applicant's
submissions are sound. I am of the view
that another Court will not come to a finding different from mine.
[15]
In the light of the above, the appeal,
to my mind, does not have reasonable prospects of success.
[16]
In the result, I order as follows:
1.
The application for leave to appeal is dismissed with costs,
including the costs of two counsel.
MP
Canca
Acting
Judge of the High Court South Africa, Gauteng Division, Pretoria.
APPEARANCES:
For the
Applicant: Messrs MS Phaswane & DM Kekana
Instructed
by: Ms NA Qongqo, State Attorney, Pretoria.
For
the Respondent: Messrs ZZ Matebese & L Mgwetyana
Instructed
by:
Mjali & Zimema Attorneys, Volksrust.
Heard
on: 6 July 2016 Judgment on: 12 July 2016