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[2016] ZAGPPHC 899
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J.H.W v Minister of Police and Another (60082/2012) [2016] ZAGPPHC 899 (23 September 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
NORTH
GAUTENG DIVISION, PRETORIA
23/9/2016
CASE
NO: 60082/2012
Reportable:
No
Of
interest to other judges: No
Revised.
J.
H.
W.
Plaintiff
and
MINISTER
OF
POLICE
1
st
Defendant
MINISTER
OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
2
nd
Defendant
JUDGMENT
MSIMEKI
J,
INTRODUCTION
[1]
The plaintiff, a 29 year old male, is claiming damages from the
Minister of Police and the Minister of Justice and Constitutional
Development which he suffered when he was unlawfully arrested and
detained on 21 August 2010 in Parys in the orange Free State.
[2]
Advocate J. P Nel (Mr Nel) and Advocate D Mtsweni (Mr Mtsweni)
appeared for the plaintiff and the defendants respectively when
the
matter was argued.
BRIEF
BACKGROUND FACTS
[3]
The plaintiff, on the day of his arrest and detention, had visited
his friends in Parys. The police allegedly stormed the house
they
were in and sprayed some form of gas and arrested them. The
plaintiff, to no avail, protested his innocence. He was initially
detained for about a month at a police station and later transferred
to a correctional facility where he was detained for approximately
7
months. It appears to be common cause that he, on the whole, was
detained for 226 days. The charges preferred against the plaintiff
were withdrawn against him on 4 April 2011.
[4]
On 7 March 2016 a pre-trial conference was held and a pre-trial
minute was produced.
[5]
The following can be gleaned from the pre-trial minute:
1. The issue of liability was conceded
100% in favour of the plaintiff.
2. The defendants would jointly and
severally pay the plaintiff 100% of his proven, alternatively agreed
damages.
3. The issue of quantum would be
argued on the medico-legal report of Professor J. G Scholtz.
4. The defendant has no expert report.
5. The plaintiff was unlawfully
arrested and detained for 226 days.
6. The costs of the pre-trial
conference would be costs in the cause.
7. Counsel's fees for attending the
pre-trial conference as well as the plaintiff's Counsel's time for
preparing the pre-trial minute
would be taxable.
[6]
Professor Jonathan Geoffrey Scholtz, a clinical psychologist,
assessed the plaintiff. His report reveals that he assessed
approximately
95 forensic cases and testified in 43 of them. Annexure
"A" to his report contains his qualifications which
include:
1. BA Social Sciences (1984)
(University of Johannesburg).
2. BA Hons (Psych)
( Cum Laude)
(1990) (University of Pretoria).
3. MA (Clin Psych)
(Cum Laude)
(1992) (University of Pretoria).
4. PHO (Psychology) (1999) (University
of Johannesburg).
[7]
Professor Scholtz is registered with the Health Professions Council
of South Africa as an independent practitioner with PS 34495.
[8]
He has twenty-four years' experience in Clinical Psychology. He has
published in peer review journals and presented papers at
various
conferences nationally and internationally. He has been appointed as
a reviewer for the South African Journal of Psychology.
He has
assessed 95 forensic cases and testified in 43 of them. He has more
than 18 000 hours of clinical contact with his patients.
[9]
He conducted interviews with the plaintiff, Mr Schalk Van Rensburg,
the plaintiff's maternal Uncle who lived with the plaintiff
once he
was released from prison. He also interviewed Mr S. W., the
plaintiff's older brother and conducted psychometric tests.
His
expertise is not challenged.
HIS
CLINICAL IMPRESSION OF THE PLAINTIFF
[10]
He found the plaintiff neatly groomed.
The
plaintiff-
1. appeared anxious;
2. had a mildly depression mood;
3. displayed restricted affect with
minimal flow and animation;
4. his speech was normal in rate and
with a soft tone;
5. his thought processes were normal;
6. displayed and reported signs of
depressive disorder, anxiety disorder and posttraumatic stress
disorder; and
7. had memory which was intact.
FAMILY
CONSTELLATION AND RELATIONSHIPS AND EMPLOYMENT
[11]
The plaintiff was the middle child of an older brother and younger
sister raised in Fochville. He passed grade ten. He was
sixteen when
his father committed suicide. He is the one who discovered the father
and this was very traumatic to him. He never
received counselling.
The plaintiff's mother too, after the husband's passing, died years
later from complications due to severe
alcohol abuse. This severely
distressed the plaintiff who informed the Professor that his mother
had "weighed only 40Kg's
before she died".
[12]
He was sixteen when he left school in order to make ends meet. He
worked at restaurants for seven years. He was arrested and
detained
when he was assisting his brother in a cash loan business. After his
arrest, the plaintiff lived with his maternal Uncle
who reported that
that could not work out due to the plaintiff s conduct. He left
Witbank for the Cape where he made cabinets and
sold wood and plants.
He was later admitted to the "disciple school" in
Vredenburg.
LEGAL
[13]
The plaintiff, in the past, was arrested mostly for minor alcohol
related incidents. He was, however, never detained.
EVALUATION
[14]
The Professor after evaluating the plaintiff concluded that:
1. The plaintiffs arrest and
consequent detention in August 2010 was a traumatic experience for
him. This "exacerbated his
pre existing psychological
problems which were confined mainly to a depressed mood and abuse of
substances resulting from
his father's death. The plaintiff,
according to the Professor, "does not meet the full criteria for
major depressive disorder"
but "has significant symptoms of
depression that affect his quality of life". The plaintiff,
according to the Professor,
was inconsistent prior to the incident
"but would retain employment and remain in one geographical
area". The Professor
reports that the plaintiffs functioning,
after the accident, "has deteriorated since the incident".
2. The Professor observed that:
1. the arrest was completely
unexpected;
2. the detention was strange; and
3. the arrest was violent.
The Professor lists the following
psychological disturbing aspects of the plaintiff's arrest and
detention which he had to contend
with:
2.3.1. threats from fellow detainees;
2.3.2. the plaintiff was most of the
time confined to his bed which he regarded as a safe place;
2.3.3. he was asked to intervene in a
case where a fellow detainee was threatened with rape but was scared;
2.3.4. he would hardly sleep in an
unsafe place;
2.3.5. racist attacks were directed
towards him;
2.3.6. he witnessed assaults;
2.3.7. conditions in jail were dirty
and unhygienic as there were fleas in his blanket and mattress as
well as grime in the showers
and bad odours;
2.3.8. fellow detainees robbed him of
his food;
2.3.9. he was kept with convicted men
he regarded dangerous;
2.3.10. he could not see his friends
and family members for a month; and
2.3.11. he concluded that Correctional
Services Officers were colluding with detainees.
3. The plaintiff, according to the
Professor, "was robbed of his freedom and his dignity
compromised". His self-esteem
has suffered and his sense of
direction and purpose has been affected. The Professor has observed
that the plaintiff suffers from
instructive symptoms of PTSD that
disrupt his life daily.
The
plaintiff, before the unlawful arrest and detention, could retain
employment and make a reasonable living and this, according
to the
Professor, he is now unable to do. The plaintiff's "pre-existing
problem with substance has been exacerbated by the
incident".
His reliance on alcohol and drugs to self-medicate and thereby
alleviate his depression and anxiety, "has
increased".
[15]
The Professor has implored the Court to consider that:
1. the plaintiff's clinical condition
will require Psychiatric (medication) and Psychological
(psychotherapy) treatment;
2. this will involve costs of
psycho-pharmacological treatment;
3. the plaintiff's "abuse of and
possible dependence on substances was a pre-existing problem"
which has merely been "exacerbated
by the incident";
4. should the "rehabilitation"
at the "disciple school" fail, the plaintiff will have to
be admitted to an accredited
institution for rehabilitation. The
programs, according to the Professor, can run from a few months to a
year at a cost of approximately
R93 000 00 per three months.
[16]
According to the Professor, it is not possible to quantify the
psychological impact and the humiliation and embarrassment the
incident had on the plaintiff. It is, according to the Professor,
also difficult to quantify the impact of the plaintiff "being
suddenly deprived of his liberty". These aspects, according to
him, have to be viewed separately
"as
they occurred in the first moments, hours and days in the chain of
events".
The actual circumstances of the
arrest, the trauma to family members who cannot comprehend what has
happened, personal embarrassment
and humiliation (treated like a
criminal), adverse publicity and the incarceration experience itself
are significant psychological
stressors according to Simon (Simon
1993) referred to by the Professor.
[17]
As already alluded to before, the parties agreed that the issue of
quantum be argued on the medico-legal report of Professor
J. G
Scholtz. The plaintiff would not testify in person.
[18]
The matter, according to Mr Nel, would only involve future medical
and related expenses and general damages. It was common
cause that
the arrest and detention of the plaintiff was unlawful.
[19]
Indeed, to be determined, is the amount of damages that, the
plaintiff should be awarded in respect of the future medical and
related expenses and the general damages.
[20]
I need to have regard to the medico-legal report, the expert report
that the Court has at its disposal. The defendant has no
report of
its own.
[21]
The Professor's report, in my view, is quite extensive. The professor
had enough time to interview and assess the plaintiff.
The report
appears objective and helpful. It discloses the plaintiffs condition
prior to and after the incident. It clearly is
informative and
instructive when it deals with the background of the plaintiff.
[22]
The plaintiff, at the time of the assessment, was 29 years old. He
had achieved grade 10. His home, at the time, was Vredenburg
which is
in the Cape Province. He was not married but had two minor children,
at the time, aged 13 and 1 who were born out of two
separate
relationships. He had no occupation at the time of assessment. Apart
from the interviews with the relevant people, psychometric
tests were
conducted.
[23]
The report reveals that the plaintiff had a rough history and
experience. His father committed suicide while his mother's health
deteriorated remarkably mentally and physically after his father's
passing resulting in her death years later from complications
which
had been caused by severe alcohol abuse. The mother, at the time of
her death, weighed only 40kg's. All these experiences
left the
plaintiff severely distressed. The plaintiff was forced to leave
school at a very early age of 16 in order to fend for
himself. This
indeed was traumatic.
[24]
The plaintiff, according to the report, had pre-existing
psychological problems which were confined "mainly to a
depressed
mood and abuse of substances. The arrest and detention,
according to the report, "exacerbated the pre-existing
psychological
problems". The report clearly reveals that the
arrest and detention left the plaintiff with "significant
clinical symptoms"
which I have referred to earlier in my
judgment, which were not there before.
[25]
According to the report, the arrest and detention were completely
unexpected; were strange; violent and had several psychologically
disturbing aspects which I have also referred to above. The plaintiff
was held in custody under appalling conditions. The incident,
according to the report, indeed exacerbated the plaintiff's
pre-existing problem with substances.
[26]
The report further reveals that a lot needs to be done to assist the
plaintiff and that that will be expensive financially.
The report
gives estimate amounts which will be needed for the work. I should
not, however, lose sight of the fact that the incident
found the
pre-existing condition of the plaintiff existing. It merely
exacerbated it. The amount of the reward should clearly reflect
this
aspect. This implies that blame should not entirely be placed on the
defendant's shoulders. Blame has to be apportioned. The
value of the
award must also reflect this.
[27]
In determining the damages, care has been taken that the incident had
psychological impact and was accompanied by humiliation
and
embarrassment. The plaintiff was deprived of his liberty and this in
itself is degrading enough to be deserving of compensation.
[28]
Mr Mtsweni for the defendant, submitted that the plaintiff had a pre
existing condition. This is what the report reveals.
Mr Mtsweni
disagreed that the incident caused the plaintiff's condition as,
according to him, there is no link between the condition
and the
incident. The report clearly reveals that there, indeed, was a
pre-existing condition. To say that the incident had no
impact on the
plaintiff will be taking the issue too far as no one can deny that
the incident, indeed, affected the plaintiff.
You do not get arrested
and detained and come out of there being the same person. However,
what has to be borne in mind is that
there was indeed a pre-existing
condition.
[29]
Mr Mtsweni's submission that the plaintiff had already had problems
with the law does not help us because the plaintiff had
never been
incarcerated before. He only had alcohol related incidents without
being detained. The report, it must be borne in mind,
states that the
arrest and detention worsened the condition. This, in my view, cannot
be denied.
[30]
Mr Nel provided the Court with case law which deals with cases where
Courts faced and had to deal with similar problems. Different
amounts
were awarded as damages suffered by different claimants. Some were
detained for hours, days, months and even for periods
longer than
that. It is important to note that the awards were made according to
years. Obviously, older cases of yester-years
will reflect lesser
amounts while cases in later years will reveal higher awards. While
Courts may work on daily, weekly, monthly
or annual rates the element
of arbitrariness has to be avoided as cases are not the same and need
to be treated on their own merits.
Extreme caution should be a
requirement in the determination of awards to be made.
[31]
While past cases are a useful guide in the determination of the
awards I have, indeed, had regard to the facts of this case
assisted
by the only expert report I had at my disposal.
[32]
I have duly considered the facts of the case, factors relevant
thereto and the case law I have been referred to and provided
with,
and have come to the conclusion that an appropriate award for damages
suffered by the plaintiff is an amount of R2 800 000
00 (two million
eight hundred thousand rands).
ORDER
[33]
I, as a result, make the following order:
1.
Judgment is
granted in favour of the plaintiff against the defendants jointly and
severally, the one paying the other to be absolved
for payment of the
amount of R2 800 000 00 (two million eight hundred thousand rands).
2.
The said amount of
R2 800 000 00 (two million eight hundred thousand rands) which is
comprised as follows:
2.1.
Future medical
expenses:
R 100 000 00
2.2.
General
damages:
R2 700 000 00
Shall be paid to the plaintiff's
attorneys, in settlement of his claim for damages, by direct transfer
into the plaintiff's attorneys
Trust Account within thirty (30) days
of this order, the details of which are as follows:
D
P DU PREEZ ATTORNEYS
NEDBANK-DIE
HEUWEL (146 805)
NEDBANK
TRUST ACCOUNT
ACCOUNT
NUMBER: [...]
3.
The defendants,
jointly and severally, the one paying the other to be absolved, are
ordered to pay the plaintiff's taxed or agreed
party and party costs
on the High Court scale.
4.
The costs shall
include, but not limited to the reasonable taxable accommodation and
consultation costs, including toll and e-toll
charges, incurred by or
on behalf of the plaintiff in attending medico-legal consultations
with the plaintiff's expert(s), consultations
with the legal
representatives of the plaintiff and the court proceedings. The
quantum is subject to the discretion of the Taxing
Master.
5.
The aforementioned
costs shall be determined as follows:
5.1.
The plaintiff
shall serve a notice of taxation on the defendant's attorney of
record;
5.2.
The plaintiff
shall allow the defendant's thirty (30) court days to make payment of
the taxed costs from date of settlement or taxation
thereof;
5.3.
Should payment
not be effected timeously, plaintiff will be entitled to recover
interest at the applicable rate on the taxed and/or
agreed costs from
date of the allocator to date of final payment.
__________________
M.
W. MSIMEKI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION OF THE HIGH COURT,
PRETORIA