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[2016] ZAGPPHC 795
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Ndzimande v Minister of Police and Anotehr (56349/2012) [2016] ZAGPPHC 795 (2 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 56349/12
DATE:
2 September 2016
JOB
.
PHILLIP
..
NZIMANDE Plaintiff
V
MINISTER
OF
POLICE
..
First
Defendant
WARRANT
OFFICER
MSIZA
Second Defendant
JUDGMENT
Makamu
AJ
[1]
This is an action for unlawful arrest by the police of the Plaintiff,
and detention for twelve (12) days. The merits are not
in dispute,
only the quantum is contested by the Defendant.
[2]
The Plaintiff was arrested and detained for twelve (12) days at
Bronkhorstspruit on the 8
th
day of October 2009,
thereafter bail application was heard on the 20
th
day of
October 2009 where bail was refused. It is not in dispute that the
period of unlawful arrest and detention has been agreed
by both
parties. He was subsequently released, although, from the Court
papers, it is not clear as to when he was released.The
Plaintiff is
not claiming an award for loss of income, hence it is futile to deal
with the merits.
[3]
The Plaintiff claims an amount of R500,000.00 for damages and
compensation. However, after recalculating the figure, came to
the
conclusion and made submissions that an amount of R480,000.00
calculated at a rate of R40,000.00 per day and the costs of suit.
It
is this amount of damages which is in dispute, the Defendant
proposing about R125,000.00 calculated at a rate of Rl0,500.00
per
day.
[4]
The approach in assessing damages in matters of this nature includes
an evaluation of the Plaintiff's personal circumstances,
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).
[5]
The counsel for the Plaintiff referred me to several cases where
various amounts were awarded, however, what was omitted was
to
mention the social status of the Plaintiff in this matter. One cannot
treat everybody with the same scale, so to say, as people
occupy
different social and professional status within the community. The
community have tendency to treat people differently depending
on the
social status hence many of the decided cases went on to mention the
Plaintiff's standing in the society or profession.
[6]
In the case of
Scott and another v Minister of safety and Security
2013 JOL 30254
GNP
where the Plaintiff was a Chief
Executive Officer of a company. He was arrested and detained at
Musina police cells. He was released
from custody the following
morning.He proved loss of income and for unlawful detention he was
awarded R75,000.00.
[7]
In Tladi v Minister of Safety and Security which judgment was
delivered on the 24
th
of January 2013 by the South Gauteng
High Court, Johannesburg, Ms Cynthia Tladi was a deputy school
principal and she claimed damages
for unlawful arrest and detention.
The Court awarded her R25,000.00 for one day.
[8]
In the present case, the defendant's Counsel also referred this Court
to several decided cases and both parties endeavoured
to make their
own calculations as to how much could be a reasonable and proper
amount for damages and compensation for the Plaintiff.
[9]
In determining a proper amount for damages and compensation one
should take into account factors that were articulated in paragraph
4
of this judgment in Ngcobo v Minister of safety and security. The
Plaintiff in this present case was a truck driver, earning
R4,500.00
per month.
[10]
In
Minister of
Safety
and
Security
v
Tyulu 2009 (
1
)
All SA 38 (SCA)
is a classic case of claimants claiming
exorbitant amounts which could not be justified. The Plaintiff
claimed an amount of R500,000.00
for unlawful arrest and detention,
and was awarded R280,000.00 by The High Court. He appealed to the
full bench and was awarded
R50,000.00. He further appealed to the
Supreme Court of Appeal and the amount was reduced to Rl5,000.00. The
claimant was a magistrate
who was arrested when he walked from his
house to a filling station. He was arrested and released the
following day.
[11]
The question that this Court asks is whether the amount of
R480,000.00 be a fair and proper amount for damages and compensation.
The Court had to take into account the Social standing of the
plaintiff and his occupation.
[12]
Each case should be treated on its merits, however, there is no harm
in following precedents that have been created before
this day. The
Plaintiff did not prove to the Court the conditions in which he was
detained and the food and privileges and amnesties
afforded or
deprived whilst incarcerated.
[13]
The Court cannot assume that whatever conditions other claimants
suffered the Plaintiff also had the similar experience. Having
given
careful consideration to all relevant facts in determining the
amount, including the age of the plaintiff who was 40 years,
his
social and professional standing, the facts that he was arrested for
and awards made in comparative cases, I come to the conclusion
that a
fair and appropriate award for damages for the plaintiff's unlawful
arrest and detention is an amount of R12,000.00 per
day and the total
amount is R144,000.00.
Consequently
judgment is hereby granted as follows:
13.1
The Defendant is ordered to pay an amount of R144,000.00 together
with interest at the rate of 15.5% from the time of action
to the
date of payment.
13..2
The Defendant is ordered to pay costs of the action.
_________________
M
S MAKAM U AJ
ACTING
J
UDGE OF THE HIGH COURT
A
ppearances:
Counsel
for the
plaintiff:
…...........
Adv.
S Meyer
Instructed
by:
...............................
Letwaba
Attorneys
…
..................................................
c/o
Motloba
Attorneys
Counsel
for the
defendants:
.......
Adv. F Baloyi
Instructed
by:
.............................
Office
of
the
State
Attorneys
Date
Heard:
.................................
3
1
August 2016
Date
of
Judgment:
......................
2
September
2016