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[2016] ZAGPPHC 900
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N v Minister of Police and Others (24776/2012) [2016] ZAGPPHC 900 (23 September 2016)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
23/9/2016
Case
Number: 24776/ 2012
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
DR
A. H.
N.
Plaintiff
and
MINISTER
OF
POLICE
1
st
Defendant
WARRANT
OFFICER
MASEMOLA
2
nd
Defendant
BRIGADIER
MANGANYE
3
rd
Defendant
CAPTAIN
BEN
TSOKU
4
th
Defendant
JUDGMENT
MNGQIBISA-THUSI
J
[1]
The plaintiff has instituted a claim against the defendants arising
from his alleged unlawful arrest and detention (claim 1);
and for
legal costs incurred as a result of the plaintiff's alleged unlawful
arrest and detention (claim 2). The plaintiff alleges
that the
alleged unlawful arrest and detention, and the consequent legal costs
incurred, was as a result of the actions the members
of the South
African Police Service ("SAPS") acting within the course
and scope of their employment.
[2]
In his particulars of claim the plaintiff is claiming damages in the
amount of R 700 000.00 (claim 1) and R 60 000.00 (claim
2).
[3]
It is the plaintiff's case that on 15 June 2011 he was unlawfully
arrested and detained until around 14h00 on 16 June 2011,
even after
the High Court had, on 15 June 2011 and at around 21h00, granted him
bail, which order was given to and ignored by officers
at Lyttleton
police station.
[4]
It is the defendants' contention that the plaintiff was lawfully
arrested and detained in terms section 40(1) of the Criminal
Procedure Act
[1]
("the CPA")
and detained on suspicion of having committed a schedule 1
offence
[2]
, namely, rape, after
a complaint was made against him.
[5]
The following facts are not in dispute:
5.1.
that on 15 June 2011 and at around 11h00 the
plaintiff was arrested by members of the SAPS;
5.2.
that the arrest was as a result of a charge of
rape laid against the plaintiff by a member of the public;
5.3.
that the plaintiff was held in custody at the
Lyttleton police station, Pretoria;
5.4.
that the plaintiff was granted bail by the High
Court on 15 June 2016; and
5.5.
that the plaintiff was released from custody on
16 June 2011 at around 14h00.
[6]
At the hearing of this matter, plaintiff's counsel conceded that
plaintiff's arrest was lawful in that a complaint of rape had
been
registered at the Lyttleton police station. Further, plaintiff's
counsel conceded that in the light of the lawfulness of the
plaintiff's arrest, his detention up to the stage when the police
received notice of the High Court's order releasing him on bail,
was
also lawful.
[7]
In the light of the concessions made on behalf of the plaintiff, the
issue of legal costs (claim 2) falls away since these were
incurred
in order to secure his release on bail.
[8]
The issue to be determined is whether the continued detention of the
plaintiff after he was granted bail was unlawful. If it
was, then the
next issue to be determined is the quantum of the loss suffered by
the plaintiff through his continued detention
after bail was granted.
[9]
The plaintiff, Dr N, testified as follows. He is a business
strategist advisor for large companies advising them on their
turnaround
strategy. On 15 June 2011 and between 10h00 and 10h30, he
was called by a police officer who wanted to come and see him at the
office. Two police officers came to his office and requested him to
accompany them to the police station as there was an allegation
of
rape against him. At the police station he was informed that he is
being charged of rape due to an allegation made by a family
member.
After being given an opportunity to make one phone call, he was
escorted to the cells and his valuables were taken. He
was put
in a 2 x 2m
2
dirty cell which reeked of urine. Later in
the afternoon, he was booked out and his fingerprints taken and given
a copy of his
constitutional rights. He was again taken back to the
cell and served lunch. In the meantime his wife was trying to get him
released
on bail. Later that same evening he was taken to a bigger
cell which was about 2 X 4m
2
. This cell was also
appalling and had a couple of yellow mattresses covered with urine
and blankets which felt wet.
[10]
Dr N further testified that two years prior to his arrest and
detention, he had undergone a major operation to remove half
of his
colon. He was as a result on chronic medication. As he did not have
his medication his stomach was bloated. He asked one
of the officers
in attendance to get him his medication and that officer refused. It
was only around 02h00 the following morning
that his wife was allowed
to bring him his medication. Furthermore, Dr N testified that
although a High Court order granting him
bail was granted at 21h20 on
15 June 2011, the officers at the station refused to listen to her
wife's and attorney's pleas to
be released. The officers informed
them that they were waiting for the investigating officer who would
arrive the next morning
as he was the only one who had the authority
to release him. The next morning at around 10h00 the investigating
officer completed
some documents, cuffed him, took him outside and he
was taken to the Steve Biko hospital. At the hospital the handcuffs
were removed
and several tests were done before the plaintiff was
returned to the police station where he was released.
[11]
During cross-examination Dr N indicated that prior to his arrest he
had not experienced any traumatic incident. He conceded
that once a
complaint of rape was made, the police had a duty to arrest him and
investigate the complaint. He further conceded
that the trauma of
attending court was not caused by the police. Furthermore, he
admitted that after his father died in 2010 he
was severely depressed
and had to attend hospital. He further admitted that as a result of
his depression prior to his arrest he
had in 2009 consulted with a
psychiatrist. However, he testified that the death of his father was
not such a traumatic experience
that it affected his business. Dr N
further admitted that he had not informed Mr Moorcroft, Dr Peche and
Dr Peta that he had seen
a psychiatrist. Finally Dr N testified that
he was traumatized and humiliated from being treated as a criminal
and being escorted
through hospital with handcuffs.
[12]
The next witness called by the plaintiff was the plaintiff's wife,
Mrs Annette N. She testified that after being informed that
her
husband has been arrested she managed to get a lawyer, a Mr Joubert,
to assist in securing bail for her husband. Bail in the
amount of R5
000 was granted by Judge Murphy at around 21h30 in the evening. She
took the order granting bail to the plaintiff
to the officers at the
Lyttleton police station. She arrived at the police station around
23h00. However warrant officer Masemola
queried why bail was set at
R5 000 instead of R 10 000. She decided to call judge Murphy but
warrant officer Masemola slammed the
phone down and refused to speak
to the Judge. Mr Joubert tried to reason with warrant officer
Masemola. Furthermore, warrant officer
Masemola phoned Brigadier
Manganye who told him not to release Dr N. She further testified she
continued trying to talk to the
second and fourth respondents to let
her take medication to the plaintiff. At around 02h00 the next
morning (16 June 2011) warrant
officer Masemola finally took the
medication to Dr N. Or N's bail was paid at 10h20 the next morning.
Mrs N confirmed that they
paid their lawyer an amount of R62 804.16
as legal fees.
[13]
The next witness called by the plaintiff is Mr Harold Sean Moorcroft,
a clinical psychologist. In his report he sets out the
plaintiff's
biographical facts which were read into the record. Mr Moorcroft
testified that he got the plaintiff's biographical
facts from the
plaintiff. In brief, his evidence was that after consulting with the
plaintiff, he found that the plaintiff suffered
from acute stress
disorder. In describing what he considered to be trauma, he opined
that the plaintiff would have suffered trauma
if he had seen his
father die but that if it was only the passing on of his father that
could be described as grief. He further
testified that his first
consultation with the plaintiff was on 23 June 2011 and that he
subsequently consulted with the plaintiff
on 30 June 2011. In his
opinion the plaintiff has recovered well from his ordeal. Mr
Moorcroft further testified that during June
2013 he again consulted
with the plaintiff and that the plaintiff was suffering from
flashbacks of the 2011 incident. He testified
that the plaintiff felt
a sense of despair and of isolation. Mr Moorcroft testified that he
diagnosed the plaintiff as being under
extreme trauma based on the
way he described his situation. In his opinion the plaintiff's
incarceration was the most traumatic
aspect of the incident in that
he felt humiliated and under threat of bodily harm. He opined that
being accused of rape would have
contributed to the plaintiff's
stress anxiety which could constitute trauma.
[14]
The next witness called by the plaintiff was Dr Annemie Peche, a
neuro psychologist. Her report was also read into the
record.
She consulted with the plaintiff on 10 September 2015. It was her
opinion that the plaintiff appeared to have a sterling
background.
However after his arrest and detention and since he had never been
exposed to such circumstances, he felt he was not
in control of his
life. In her opinion this was traumatic.
[15]
In cross examination, Dr Peche testified that the plaintiff told her
that he was not given his medication at all even though
it is common
cause that he was given medication in the morning following his
arrest. She testified further that the plaintiff told
her that whilst
in the cells, he felt nauseous and that the cell he was kept in was
dirty and cold. Further that the plaintiff
felt humiliated in that he
did not expect to be arrested and was fearful. She further testified
that the plaintiff did not mention
that he had consulted with a
psychiatrist for stress, and if he had he would have investigated
that. In her opinion plaintiff's
loss of business was related to the
stress he suffered as a result of the accusation of rape and the
subsequent arrest and detention.
She opined that a false accusation
of rape would have a very negative impact on a person. In her opinion
the plaintiff had high
tension levels and depression. About the
trauma Dr N experienced due to the arrest and detention, he after his
release he battled
to cope and ended up resigning as managing
director of the company he worked for. The accusation of rape
embarrassed him and did
not want to be around people. He even
attempted committing suicide.
[16]
The defendants did not call any witnesses.
[17]
Section 12(1) of the Constitution provides that:
"(1) everyone has
the right to freedom and security of the person which includes the
right-
(a)
not to be deprived of freedom arbitrarily or
without just cause;
(b)
not to be detained without trial."
[18]
In
Arse
v Minister of Home Affairs
[3]
,
the
court held that once it is established that a person has been
detained, the burden of justifying their detention rests on the
detaining authority. Furthermore, in
Minister
of Safety and Security v Sekhoto
[4]
the court stated
that:
"It could hardly be
suggested that an arrest under the circumstances set out in s
40(1)(b) could amount to a deprivation of
freedom which is arbitrary
or without just cause in conflict with the Bill of Rights. A lawful
arrest cannot be arbitrary. And
an unlawful arrest will not
necessarily give rise to an arbitrary detention. The deprivation
must, according to Canadian jurisprudence,
at least be capricious,
despotic or unjustified."
[19]
In argument Counsel for the plaintiff claimed damages for the injuria
caused by detention of the plaintiff; and secondly, legal
costs
relating to costs after bail was granted. Counsel argued that it was
not disputed as to what happened at the police station.
Counsel
further submitted that the police officers who attended to the
plaintiff demonstrated a contempt for the institution of
the court.
Counsel argued that the plaintiff was released after Van Tonder
intervened. It is Counsel's submission that the detention
of the
plaintiff was intentional and malicious. Counsel urged this Court to
take into consideration the conditions under which
the plaintiff was
kept, which according to counsel was not fit for human residence.
Counsel further argued that a punitive award
should be granted in
order to send a message to the police.
[20]
On behalf of the defendants the unlawfulness of the detention of the
plaintiff after the police became aware of the order granting
him
bail, was conceded. Counsel for the defendants estimated that the
unlawful detention of the plaintiff was approximately 16
hours.
Counsel further submitted that the legal fees incurred by the
plaintiff could not go beyond the time the plaintiff was released
on
16 June 2011. With regard to quantum of damages to be awarded,
counsel submitted that even though the defendants' witnesses
did not
testify, the plaintiff's experts were not helpful. Counsel submitted
that the plaintiff's experts could have conceded that
the trauma
suffered by the plaintiff could not have emanated solely from the
period after bail was granted. According to counsel',
the plaintiff's
trauma could have been caused by optimum fear of being in a cell.
[21]
Counsel for the defendants further submitted that the court should be
cautious in accepting the opinions of the plaintiff's
experts in that
they themselves conceded that their conclusions were based on
information given by the plaintiff which was not
totally correct.
Counsel suggested that an appropriate award would be R90 000.
[22]
The defendants have conceded that the plaintiff's continued detention
after the police became aware that the plaintiff had
been granted
bail, was not justified. What needs to be determined is the quantum
of damages to be awarded for the injuria suffered
by the plaintiff
for his unlawful detention. The defendants 'counsel's suggestion that
the period of detention was approximately
16 hours, was not disputed
by the plaintiff. In determining the quantum of damages to be awarded
to the plaintiff, cognisance must
be taken that the defendants has
acted in contempt of a court order. The fact that the investigating
officer was not present when
they became aware of the order releasing
Dr N, is of no moment. There was a court order and there was an
obligation on their part
to comply with it.
[23]
In
Minister
of Safety and Security v Seymour
[5]
the Supreme Court
of Appeal held that:
"[20] Money can
never be more than accrued
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."
Further,
in
Minister
of Safety and Security v Tyulu
[6]
the court stated
that:
"[26] In their
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.
(Minister
of Safety and Security v Seymour
2006 (6) SA 320
(SCA) at para
17;
Rudolph
&
Others v Minister of Safety and Security
2009 (5) SA 94
(SCA)."
[24]
At the time of his unlawful detention, the plaintiff was 42 years
old, holding a doctorate in Business Management. At the time
he was
the managing director of his company and also held the position of
strategic advisor to various companies. It is common
cause that due
to emotional and other factors, the plaintiff could not continue with
his business and had to close it. It is also
common cause that prior
to the incident in question the plaintiff had some emotional
challenges which led to him consulting with
a psychiatrist and
suffered depression after the death of his father. Whether or not it
was his arrest and detention which led
to him attempting to commit
suicide in 2013 or it was due to his previous emotional challenges
did not come out clearly during
the trial. Further, it is common
cause that Dr N's detention after the police became aware of the
order releasing him on bail was
for approximately 16 hours. What
became apparent during the trial is that the various experts the
plaintiff had consulted
and had called as witnesses, attributed his
deteriorating mental state to his alleged unlawful arrest and his
detention, ignorant
of the fact that prior to his arrest and
detention the plaintiff had been under the care of a psychiatrist and
that he was not
unlawfully arrested and was not detained for a whole
day.
[25]
Mindful of what was said in
Sandler
v Wholesale Suppliers
Ltd
[7]
,in
determining the appropriate quantum for damages suffered, I have
taken into account the plaintiff's age, marital status, his
position
in society and the conduct of the police officials and the conditions
he was kept under while in custody. I have also
considered the
authorities I was referred to. I am of the view that an appropriate
award of damages for the plaintiff's unlawful
detention is an amount
of R350 000.00. Furthermore, I am of the view that the plaintiff is
entitled to legal costs incurred in
securing his release after he was
granted bail up to the stage of his release.
[26]
Although the plaintiff has asked for a punitive cost order against
the defendant in the event of his claims being successful,
I am of
the view that it would not, under the circumstances, be in the
interests of justice to grant such an order.
[27]
Accordingly the following order is made:
1.
The defendants are ordered, jointly and
severally, the one paying to be absolved, to pay the sum of R350
000.00 to the plaintiff
as damages.
2.
Interest payable at 15.5% per annum from date of
this order.
3.
The defendants are ordered, jointly and
severally, the one paying the other to be absolved, to pay the costs
incurred for the release
of the plaintiff after they became aware of
Judge Murphy's order up to the time of the plaintiff's release.
4.
The defendants to pay the costs of this action.
________________
NP
MNGQIBISA-THUSI
Judge
of the High Court
Appearances:
For
the Plaintiff: Adv Botha SC
Instructed
by: GP Venter Attorneys
For
the Defendants: Adv Mphahlele
Instructed
by: State Attorney
[1]
Section 40(1) of the Criminal Procedure Act51 of 1977 ("the
Act") reads as follows: "(1) A peace officer may without
a
warrant arrest any person -... (b) whom he reasonably suspects of
having committed an offence referred to in Schedule 1 of
the Act."
[2]
Schedule 1 of the Act provides that "Any offence, except the
offence of escaping from lawful custody ... the punishment
wherefor
may be a period of imprisonment exceeding six months without the
option of a fine."
[3]
2012 (4) SA 544
(SCA) at page 265.
[4]
2011 (1), SA (SCA) at para [25].
[5]
2006 (6) SA 320 (SCA)
[6]
2009(5) SA 85 (SCA)
[7]
1941 AD 194
where the court stated at 199 that: "the amount to
be awarded as compensation can only be determined by the broadest
general
considerations and the figure arrived at must necessarily be
uncertain, depending on the Judge's view of what is fair in all the
circumstances of the case."