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[2016] ZAGPPHC 807
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Ndlovu v Minister of Police (2014/15210) [2016] ZAGPPHC 807 (9 September 2016)
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION.
PRETORIA
CASE NO
:
2014/15210
DATE: 9 SEPTEMBER 2016
In the matter between:
NDLOVU
:
LINDIWE
.................................................................................................................
Plaintiff
And
MINISTER OF
POLICE
.........................................................................................................
Defendant
JUDGMENT
ADAMS
AJ
:
[1]
In this action the plaintiff, who is a Zimbabwean citizen, claims
delictual damages from the defendant in his nominal capacity
as Head
of the South African Police Services
(‘SAPS’).
In
the early hours of the morning (shortly after midnight) on Monday,
the 22
nd
October 2012, the plaintiff was arrested and taken into custody by
members of the SAPS on the strength of a warrant issued by the
Khutsong Magistrate’s Court on the 19
th
July 2011 for the arrest of one
‘Lindiwe Ndlovu’.
It was a case of mistaken identity
in that by sheer coincidence the plaintiff shared her name, being
Lindiwe Ndlovu, as well as
a date of birth with the person against
whom the warrant was issued. However, the plaintiff was not the
person for whom the writ
was intended.
[2]
Plaintiffs claim for damages is in the nature of a
solatium,
and her cause of action, being in
respect of unlawful arrest and detention, is the
actio
iniuriarum.
[3]
It is common cause between the parties that the warrant on which the
plaintiff was arrested was not bad in law on account of a
defect in
its substance or form. There were therefore no issues relating to the
regularity and/or the validity of the warrant of
arrest.
[4]
The plaintiff was arrested and taken into police custody at the Beit
Bridge Border Post shortly after midnight on Monday, the 22
nd
October 2012, and transported to the Musina Police Station, where she
was detained in the Police holding cells until her appearance
in the
local Magistrates Court on the same day at about 12H00. When she was
arrested she protested her innocence and explained
to the arresting
officer that, with reference to the warrant which indicated that the
suspect was resident at an address in
Khutsong,
she had never been to that place. In fact, so she informed the police
officer, she did not even know where Khutsong was
as she was
ordinarily resident in Rosettenville in Johannesburg. The police were
not vaguely interested in
‘her stories’
as
they had formed the view that she is the suspect mentioned in the
writ. During the course of the day on which she was arrested,
that is
Monday, the 22
nd
October 2012, she briefly appeared in the Musina Magistrate’s
Court. All that this court did was to order, pursuant to the
warrant
for her arrest, that the plaintiff be transferred
‘in
custody’
to Khutsong to
appear in the Khutsong Magistrates Court on the 29
th
October 2012.
[5]
On the morning of Friday, the 26
th
October 2012, the plaintiff was driven as a passenger in the back
seat of a Sedan Police vehicle to Khutsong. They arrived in Khutsong
at about 10H00 on Saturday, the 27
th
October 2012, and she was detained in the Khutsong police cells from
then until her appearance in the local Magistrate’s
Court on
the Monday, the 29
th
October 2012. No charges were put to her because by then it had
become clear that she was not the suspect in the criminal matter
in
question. At about midday on that day she was officially released
from custody, and arrangements were made for her to be returned
by
car to Musina to collect her personal belongings. She arrived back in
Musina at about midnight on the same day. This means that
the
plaintiff was detained for a period of 8 (eight) days.
THE DEFENDANT’S DEFENCES
[6]
An arrest or detention is
prima facie
wrongful,
and it is not necessary to allege and prove wrongfulness. It is for
the defendant to allege and prove the lawfulness of
the arrest and
detention. Thus, when police have arrested and detained a person,
once the arrest and detention are admitted the
onus of proving the
lawfulness rests on the State.
[7]
In
Zealand v Minister of Justice & Constitutional
Development & Another,
2008(4)
SA 458 (SCA), the court comments as follows at par [25]:
‘This
is not something new in our law. It has long been firmly established
in our common law that every interference with
physical liberty is
prima facie
unlawful.
Thus, once the claimant establishes that an interference has
occurred, the burden falls upon the person causing that interference
to establish a ground of justification. In
Minister
van Wet en Orde v Matshoba,
the Supreme
Court of Appeal again affirmed that principle, and then went on to
consider exactly what must be averred by an applicant
complaining of
unlawful detention. In the absence of any significant South African
authority, Grosskopf JA found the law concerning
the
rei
vindicatio a
useful analogy. The simple
averment of the plaintiff's ownership and the fact that his or her
property is held by the defendant
was sufficient in such cases. This
led that court to conclude that, since the common-law right to
personal freedom
was
far
more fundamental than ownership, it must be sufficient for a
plaintiff who is in detention simply to plead that he or she is
being
held by the defendant. The onus of justifying the detention then
rests on the defendant. There can be no doubt that this
reasoning
applies with equal, if not greater, force under the Constitution. ’
[8]
In his plea the defendant alleges that the arrest was justified in
that the arresting officer acted under a valid and regular warrant
for the arrest of
‘Lindiwe Ndlovu’,
and
when arresting the plaintiff he reasonably believed that the person
mentioned in the writ was being arrested.
[9]
In that regard, the defendant placed reliance on the provisions of
section 46(1) of the Criminal Procedure Act 51 of 1977 (as amended)
[‘the CPA’],
which
provides as follows:
‘Any
person who is authorised to arrest another under a warrant of anest
or a communication under section 45 and who in the
reasonable belief
that he is arresting such person arrests another, shall be exempt
from liability in respect of such wrongful
arrest’.
[10]
It was submitted by Mr Kruger, who appeared on behalf of the
plaintiff, that section 46(1) of the CPA, whilst exempting the
arresting
officer from personal liability, does not justify the
arrest in that is does not render the arrest lawful. In support of
his submission
he relies on the case of:
Minister of Safety &
Security v Kruger,
(183/10)
[2011]
ZASCA 7
;
2011 (1) SACR 529
(SCA) (8 March 2011). This case related to
section 55(1) of the South African Police Services Act no 68 of 1995,
which contains
an indemnity provision similar to the one contained in
the above quoted section 46(1) of the CPA.
[11]
At paras [16] to
[19] Nugent JA comments as follows, relative to the reliance on the
exemption provision:
‘[16] The terms in which
the submission on behalf of the Minister was framed in the heads of
argument points immediately to
its fallacy. It is not disputed that
neither of the police officers was aware that the warrant was bad in
law and that they were
thus exempted from liability under that
section. Reminding us that vicarious liability is a secondary
liability counsel for the
Minister submitted that the effect of the
exemption was that the police officers
‘
committed
no delict’
and there is thus no
mom for vicarious liability.
[17]
That construction of the section is not
correct. A police officer - or anyone else for that matter - who
deprives a person of his
or her liberty without legal justification
commits a delict, and is ordinary liable for the damage that is
caused by the delictual
act. The section does not purport to render
the act lawful. In its terms it does no more than to relieve the
police officer of
the consequences of the delictual act. The act
remains unlawful and, in accordance with ordinary principles, the
employer is vicariously
liable for its consequences.
[18]
The same argument was advanced and
rejected in
Goldschagg v
Minister van Polisie.
In that case the
question arose under s 31(1) of the Police Act 7 of 1958, which is in
material respects the same as the provision
that is before us. Botha
J summarily rejected an argument that the effect of the section was
that a police officer who executes
a defective warrant does not
commit an unlawful act. The learned judge also found that while the
section exempted the police officer
from the consequences of the
unlawful act it did not similarly exempt the state. (The decision was
reversed on appeal but the issue
that is now before us was not
considered.)
[19]
Thirion J reached the same conclusion in
De Welzim v Regering van KwaZulu
in
relation to s 34(2) of the KwaZulu Police Act 14 of 1980. The learned
judge said the following:
‘By
‘n beskouing van art 34(2) is dit duidelik dat dit nie die
handeling van die lid van die Mag verontskuldig nie.
Dit verskaf nie
‘n skulduitsluitingsgrond nie en ook nie ‘n
regverdigingsgrond ten opsigte van die handeling nie. Dit
stel slegs
die lid vry van aanspreeklikheid sonder dat dit die kwaliteit of
onregmatigheid van die daad self raak. Gevolglik bei'nvloed
dit nie
die aanspreeklikheid van die KwaZulu Regering nie. ’
[12]
I have no doubt that the aforegoing principles should find
application in relation to the provisions of section 46(1) of the
CPA.
The aforesaid section is worded and couched in terms very
similar to the wording and formulation of section 55(1) of the SAPS
Act
68 of 1995. The aforesaid section has as it’s main, if not
exclusive object the same purpose as that of section 46(1) of the
CPA, which is to exempt from liability the individual police officer
or person for the delict. The point therefore is that the
section
does not purport to render the act lawful. In its terms it does no
more than to relieve the police officer of the consequences
of the
delictual act. The act remains unlawful and, in accordance with
ordinary principles, the employer is vicariously liable
for its
consequences.
[13]
Accordingly, I am in agreement with the submissions on behalf of the
plaintiff that the unlawful arrest has not been justified
by the
provisions of section 46(1) of the CPA. I also agree with the
submission by Mr Kruger that, in any event, the defendant
did not
begin to discharge the onus on him to proof justification of the
arrest in the light of the evidence that the wrong person
was
arrested. For example, there was no evidence placed before me in
relation to a
‘mini investigation’
which
ought to have been conducted by the arresting officer once faced with
the plaintiffs claim that she is not the person mentioned
in the
warrant of arrest. The police officer ought reasonably to have made
at least one telephone call to the Khutsong Police Station,
which
probably would have revealed the true state of affairs and would have
exonerated the plaintiff. This is in fact what happened
one week
later when the plaintiff arrived in Khutsong and, without much ado,
was released without being charged.
[14]
In that regard, I was referred to the case of
Minister of
Safety & Security v Van derHeever,
1982(4)
SA 16 (CPD). At page 20 Odes AJ comments as follows:
‘Nieteenstaande
die verandering van die bewoording in art 46 van die huidige
Strafproseswet is ek van mening dat die bedoeling
van die Wetgewer
steeds dieselfde is, naamlik om iemand van die gevolge van 'n
onregmatige arrestasie te onthef mits hy op redelike
gronde geglo het
dat die persoon wat hy gearresteer het die persoon is wat gearresteer
moes word. Onder art 46 moet die persoon
'redelikerwys
meen'
dat hy die regte persoon in
hegtenis geneem het terwyl art 31 van die ou Wet vereis het dat hy
'op redelike en aanneemlike grande'
so
moes optree. Die verskil in
bewoording doen geen afbreuk aan die Wetgewer se oogmerk nie en die
toets wat deur VIEYRA WN R in die
Ingram- saak supra neergele is, bly
na my mening steeds van toepassing op die bepalings van art 46.
Die
appellant se advokaat het toegegee dat die bewyslas op die appellant
rus om te bewys dat die polisie redelikerwys opgetree het
en dat die
appellant derhalwe op die beskemning wat volgens art 46 aan hom
verieen word, geregtig is.
(Ingram
se saak supra te 227D - E; Mabaso v Felix
1981 (3) SA 865
(A) at 873
G - 874B; Brand v Minister of Justice and Another
1959 (4) SA 712
(A)
at 714E; Newman v Prinsloo and Another
1973 (1) SA 125
(W) te 126G -
127G.)
F
Die tanddros het basies op hierdie grondslag die feite van die saak
benader en het bevind dat die betrokke konstabels nie aan
die toets
wat deur VIEYRA WN R in die Ingram- saak supra voorgeskryf is,
voldoen het nie. Ek kan geen fout met die tanddros se
beredenering in
hierdie opsig vind nie. Konstabel Cleophas was bereid om bloot op 'n
vae beskrywing wat talle mense sou gepas het
die respondent in
hegtenis te neem. Hy het geweet dat die respondent en sy vrou albei
op verskeie geleenthede ontken het dat die
respondent die persoon is
wat in die lasbrief bedoel is. Hy moes agterdogtig geraak het toe
daar by die gegewe woonadres vasgestel
is dat 'John van der Heever"
lanklaas daar gewoon het. Hy het geweier om die respondent toe te
laat om sy identiteitsdokumente
by die huis te gaan haal. Nog hy nog
Williams het enige poging aangewend om die identiteitsnommer wat
verstrek is op die SAP69
vorm met die van die respondent te vergelyk.
Hierdie eenvoudige stap sou in die omstandighede deurslaggewend
gewees het want Rudolf
van der Heever het sy korrekte
identiteitsnommer aan die landdros verstrek. Dit klop inderdaad met
die nommer wat op sy SAP69 verskyn.
Hierdie inligting
was
in die besit van die polisie vir amper
'n maand voor die arrestasie. Die houding en optrede van konstabel
Cleophas was onverskillig;
in sy eie woorde
'ek
het net belanggestel in die man wat genoem was in die lasbrief.
Williams kon die hele probleem opgelos
het met 'n eenvoudige verwysing na die identiteitsnommer.
Mnr
Van Staden het aan die hand gedoen dat dit nie van die polisie verwag
kan word om elke keer 'n mini-ondersoek te hou nie. Hierdie
betoog
gaan ook nie op nie. Soos EKSTEEN R dit gestel het in die saak
Thompson and Another v Minister of
Police and Another,
1971 (1) SA 371
(OK)
te 374H:
The arrest itself is prima facie such an odious interference with the
liberty of the citizen that animus injuriandi is thereby
presumed in
our law...'
Daar
was meer as genoeg in die omringende omstandighede om die agterdog
van die polisie te wek dat hulle besig was om moontlik die
verkeerde
persoon te arresteer. Hulle moes, myns insiens, uiters versigtig te
werk gegaan het en dit het hulle nie gedoen nie.
Hulle het nie
redelikerwys opgetree nie.
[15]
Applying these principles to the case
in casu,
I
am of the view that the arresting officer acted unreasonably, which
means that the arrest and detention was unlawful.
IS THE DEFENDANT LIABLE FOR THE DETENTION AFTER THE COURT
APPEARANCE?
[16]
Mr Mphahlele, Counsel for the Minister, argued that once the
plaintiff was brought to Court, the defendant’s control over
the process ended and therefore any possible delictual liability
seizes.
[17]
This submission however loses sight of the fact that the arrest
triggered the subsequent events and resulted in the chain of events
of which her unlawful detention for an additional 7 (seven) days was
an integral part.
[18]
Also, in the SCA matter of
Minister of Safety and Security v
Van der Walt,
(1037/13)
[2014]
ZASCA 174
(19 November 2014), deals with this issue at par [14] and
[15] as follows:-
Unlawful Detention
[14]
There was no conceivable reason for the
refusal by the magistrate to release the respondents on bail. They
remained in custody because
of the groundless charge of armed robbery
inserted in Annexure A’ and the collective negligence of
Phoshoko, Zinn and the
magistrate. It follows that their detention
for the whole period
was
unlawful.
The claim against the Minister of
Safety and Security
[15]
Phoshoko did not deny that he was
present in court during the respondents’ first court
appearance. As an investigating officer
it can be infened that he
knew the contents of the docket. It can also be inferred that, as he
was
present
in court during that appearance, he heard the magistrate informing
the respondents that there was an additional charge of
armed robbery.
He failed to ensure that the correct information was placed before
the magistrate that there was no basis for this
charge and thus
failed to do what was expected of a reasonable investigating officer
in his position. He could have done so through
Zinn who was present
in court. The fact that the magistrate ignored the respondents when
they tried to reason with her did not
relieve Phoshoko of his duty as
an investigating officer to do so. After the adjournment on 26 May
2004 he again adopted a supine
attitude. A reasonable police officer
would have followed up immediately after the first appearance and
thereafter done whatever
was reasonably necessary to rectify the
situation, including clarifying the position with Zinn, or the head
prosecutor, or the
magistrate. Had he made an effort after the first
appearance to keep abreast of developments in the matter, he probably
would have
been aware that the respondents were scheduled to appear
in court for a bail application on 27 and 28 May, and ensured that he
was present to rectify the error. For all those reasons Phoshoko was
negligent and his negligence caused the prolonged detention
of the
respondents after their first appearance on the 26 May to 1 June
2004. It follows that the high court’s finding of
liability
against the Minister of Safety and Security must stand.
[19]
Accordingly, I am of
the view that the defendant is liable to the plaintiff for the whole
of the period during which she was in
custody.
[20]
The plaintiff testified that when she was held at the Police Cells in
Musina from Monday, the 22
nd
October 2012, to Friday, the 26
th
October 2012, conditions were tolerable. She was traumatised and
understandably so because it was her evidence that up to that
point
in her life she had never been in trouble with the law and by
implication had never set foot in a prison let alone be locked
up in
one. The cells were however clean, although the blankets they were
given to sleep on were dirty. Because of the
‘stress’
of being locked up, she hardly ate.
Except for occasionally eating a slice of bread and drinking water
daily, she did not consume
anything during her stay in the police
holding cells.
[21]
Her detention in the Khutsong Police cells from Saturday, the 27
th
October 2012, to the Monday, the 29
th
October 2012, when she appeared in court, was much more unpleasant.
The cells were filthy and the ablution facilities were not
working.
Of particular concern to her was the fact the toilet was blocked,
which would probably have been unbearable.
[22]
In
Minister of Safety and Security v Seymour,
2006
(0) SA 320
(SCA) at paragraph [20] it was stated that:
‘[20] Money 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. The
awards I have referred to reflect no discernible pattern other than
that our courts are
not extravagant in compensating the loss. It
needs also to be kept in mind when making such awards that there are
many legitimate
calls upon the public purse to ensure that other
rights that are no less important also receive protection. ’
[23]
In
Minister of Safety and Security v M Tyulu,
2009
(5) SA 85
(SCA) 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 detemiine 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 on such facts".
[24]
In
Masisi v Minister of Security and Another,
2011
(2) SACR 262
(GNP) at 267 paragraph [18] Makgoka J held as follows:
‘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. 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."
[25]
With regard to deprivation of freedom the following was said in
Takawira v Minister of Police,
(A3039/2011)
[2013] ZAGPJHC 138 (11 June 2013):
‘[29]. A delictual claim
for damages may also be brought in terms of Section 12(1) (a) of the
Constitution. By definition
such a claim is based on the unreasonable
and unjustifiable infringement of an individual’s right not to
be arbitrarily deprived
of freedom or to be so deprived without just
cause. See
Zeeland v Minister
of Justice and Constitutional Development & Another,
[2008]
ZACC 3
;
2008 (4) SA 458
(CC), at paras 24, 25 and 3S....42. It is
trite that an enquiry into unlawful detention (as with arrest) seeks
to determine the
extent to which the various affected rights of
personality were impaired and their duration. The enquiry involves
both a subjective
element based on the emotional effect of the wrong
committed to the plaintiff (such as the humiliation or anguish of
suffering
the injustice, the loss of self-esteem and self- respect)
and an objective impairment based on the external effects of the
wrong
(such as loss of reputation in the eyes of others).’
[26]
When making an award
in respect of damages for unlawful arrest and detention, the
following comments in
Minister of Safety and Security v
Seymour, supra,
should be kept in
mind:
‘[17]. The assessment of
awards of general damages with reference to awards made in previous
cases is fraught with difficulty.
The facts of a particular case need
to be looked at as a whole and few cases are directly comparable.
They are a useful guide to
what other courts have considered to be
appropriate but they have no higher value than that. ’
[27]
Counsel on behalf of plaintiff
referred me to the matter of
Buthelezi v Minister of Police,
2015 JDR 0269 (GJ). In this matter
the court awarded R400.000.00 as damages for unlawful arrest and
detention. In awarding damages
in that case the court took into
consideration that plaintiff was detained from 7 December 2011 to 19
December 2011 and from 27
January 2012 to 5 April 2012. In all the
circumstances, the court concluded that the plaintiff had been
detained for a lengthy
period.
[28]
In
Minister of
Safety and Security v Tyulu,
2009
(5) SA 85
(SCA), the Supreme Court of Appeal awarded R15,000.00 to a
magistrate who was arrested and detained for 15 minutes. Bosielo JA
at para [26] of his judgment had this to say:
"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 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."
[29]
Bosielo JA in
Minister of Safety and Security; Jonathan Daniel
v Johannes Francois Swart,
(194/11)
(2012) ZASCA 16
(22 March 2012) considered that an amount of
R50,000,00 was appropriate award for a respondent who was unlawfully
arrested and
detained for four and a half hours.
[30]
In
Nicolaas George van der Westhuizen v Minister of Safety and
Security and Another,
Case No
14013/2010 SGHC (9 October 2012) the plaintiff was arrested around
07h30 on 29 November 2009 and was only released late
in the afternoon
of 30 November 2009, making the total period he was unlawfully
deprived of his liberty and freedom 32 hours. Kgomo
J awarded
plaintiff damages in the sum of R400 000,00.
[31]
In
Woji v The
Minister of Police,
(92/2012)
[2014] ZASCA 108
(11 September 2014) the plaintiff was arrested as a
result of mistaken identity and imprisoned for a period of thirteen
months.
He was placed in an overcrowded prison and was subjected to a
gang that sodomised other prisoners. He was raped twice and as a
result experienced difficulty in having sexual relations with his
girlfriend. He also witnessed another prisoner being stabbed which
made him fear for his life. He was allocated a single cell after
eight months and as a result was isolated and lonely. He was awarded
damages in the amount of R500,000.00.
[32]
In
Minister of Safety and Security v Never Ndlovu,
(788/11)
2012 ZASCA 189
delivered on 30 November 2012, Never Ndlovu, a
Zimbabwean who repairs and installs programmes in software was
detained from 24
October 2008 to 31 October 2008 and the court
awarded him damages of R175,000.00 against the Minister of Safety and
Security and
the Minister of Justice and Constitutional Development
and a further R55 000,00 against the Minister of Safety and Security.
[33]
The arrest and
detention of the plaintiff was undoubtedly a traumatic experience for
her. At the time of the incident she was a
43 year old female,
returning from Zimbabwe, and the last thing she would have expected
was to get incarcerated for something that
she did not do. Thankfully
she was not subjected to any assault or any further inhumane
treatment, other than the fact that she
had to endure rather
unpleasant conditions whilst in custody. I do not for a moment intend
detracting from the unquestionable trauma
that the plaintiff would
have been subjected to.
FINDINGS
[34]
In all the circumstances I have come to the conclusion that, having
regard to the length of period for which the plaintiff had
been
detained and the prevailing conditions under which she was
incarcerated, it would be appropriate to award the plaintiff the
sum
of R240,000,00 as damages for unlawful arrest and detention.
ORDER
[35]
In the result, I make
the following order:
1.
The defendant is
ordered to make payment to the plaintiff in an amount of R240.000.00.
2.
The defendant is
ordered to pay interest on the amount in (1) of the order at the rate
of 10.25 per cent per annum from the date
of service of the summons
to the date of payment.
3.
The defendant is
ordered to pay the plaintiffs costs of suit. Such costs are to
include the costs of two counsel where employed.
L ADAMS
Acting
Judge of the High Court Gauteng Division, Pretoria
HEARD ON: 6
th
September 2016
JUDGMENT DATE: 9
th
September 2016
FOR THE PLAINTIFF: Adv T P Kruger SC, together with Adv L Badenhorst
INSTRUCTED BY: Bares & Basson Attorneys
FOR THE DEFENDANT: Adv M H Mpahlele
INSTRUCTED BY: The State Attorney, Pretoria