About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 225
|
|
Dolamo v Minister of Safety and Security (5657/2011) [2015] ZAGPPHC 225 (24 April 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 5657/2011
DATE:
24 APRIL 2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter
between:
ALFRED
DOLAMO
..............................................................................................................................
Plaintiff
and
MINISTER OF
SAFETY &
SECURITY
.........................................................................................
Defendant
JUDGMENT
MAKGOKA, J:
[1] This judgment
concerns only the assessment of damages flowing from the wrongful
arrest and the subsequent detention of the plaintiff.
The defendant
(the Minister) has admitted vicarious liability for the wrongful
arrest of the plaintiff by a police officer. In
the docket, it was
recorded that the plaintiff was arrested for ‘trespassing with
intent.’(sic). The plaintiff was
subsequently detained for 4
days, after which he was released without any charges being preferred
against him.
[2] No evidence was
led in the matter. Instead, the parties agreed to place certain
common cause facts before the Court as factual
background to the
arrest and the detention. Those facts appear from three statements-of
the plaintiff, of the instigator of the
arrest and of the arresting
officer. I set out briefly the contents of each of those statements
below.
[3] The plaintiffs
version of the events leading to his arrest is set out in his warning
statement taken down a day after his arrest.
He stated that on 19
August 2010 at approximately 16h00 he was walking from his place of
employment in Silverton, near Pretoria.
He had to wait for a lady
friend who also worked nearby. It was in a residential area. While
waiting, a white male person approached
him and asked him where he
came from and what he was doing there. He explained to the man that
he was from his place of employment,
and he was waiting for someone.
The man told him he was lying, and called the police. The police
officers arrived and arrested
him, after which he was detained at the
Silverton Police Station. He later appeared in the Pretoria
Magistrate Court on 23 August
2010, where the prosecutor declined to
prosecute him.
[4] The apparent
instigator of the arrest, a Mr Van Coppenhagen, made the following
statement:
“
That on 19
August 2010 at approximately 16h00 Insp Pienaar contacted me and told
me that my daughter Jacqueline contacted (the police)
over the
community radio for help. Jacqueline told me that an unknown black
male with white clothing was in front of the second
gate of our yard
and she didn’t know why he was there. No one had permission to
enter without our permission and without
pressing the call button in
front of the first gate. That is all I have to declare.”
[5] In his
statement, the arresting officer, Warrant Officer Hendrick Johannes
Muller stated:
‘
On
19 August 2010 at approximately at 16h00 I was on duty and in
uniform. I was with the Silver community. We got a distressed call
on
the community radio of a young girl Jacqueline that an unknown black
male is standing in front of the back gate and looking
inside the
yard. I immediately, also with the community, drove to Joseph Bosman
Street 550, Silverton. Johan Botha got there first
and saw the
suspect coming out of the residence and spoke to him. I spoke to him
at comer Fountain and Joseph Bosman Street where
I started to ask the
suspect what he was doing in front of the gate. He answered
sarcastically: ‘Why, was there a crime committed.’
I
asked him again and told me there was no crime committed and he wants
to go. I tried a few times for him to give me a proper
answer but
didn’t want to cooperate. I immediately arrested him for
trespassing with the intent and read him his rights.
That is all I
have to declare.’
[6]
This is the information on which the plaintiffs
quantum
to
be paid by the defendant has to be determined. The proper approach to
assessment of damages in matters such as the present includes
the
evaluation of the personal circumstances of the plaintiff (which
includes his standing in the community and level of education),
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) at 935B-F.
[7]
With regard to the personal circumstances of the plaintiff, there is
not much before me as the plaintiff did not testify. All
I know of
him is that he was 36 years old, and that he was employed as a
domestic worker. Similarly, there is no information as
to the
conditions under which the plaintiff was detained. Although these are
relevant considerations in arriving at a fair and
just amount of
damages, the paucity of information under these headings is no bar to
making an award. As stated by Stratford J
in
Hersman
v
Shapiro & Co
1926
TPD 367
at 379:
‘
Monetary
damage having been suffered, it is necessary for the Court to assess
the amount and make the best use it can of the evidence
before it.
There are cases where the assessment by the Court is little more than
an estimate; but even so, if it is certain that
pecuniary damages has
been suffered, the Court is bound to award damages.”
See
also
Southern Association
v
Bailey
1984(1) SA 98
(A) at 114A;
Anthony and Another
v
Cape Town Municipality
1967
(4) SA 445
(A) at 451B-C.
[8]
It is against this backdrop that I turn now to consider an
appropriate amount of compensation for the plaintiff on the
information
available. Although this is largely a matter of
discretion, some guidance can be obtained by having regard to
previous awards made
in comparable cases, which afford a useful guide
in this regard. The process of comparison is not a meticulous
examination of awards,
and should not interfere upon the court’s
general discretion:
Protea Assurance v Lamb
1971
(1) SA 530
(A) at 535B-536A and
Minister of Safety and
Security
v
Seymour
2006 (6) SA 320
(SCA) paras 17 and
18. The purpose is to compensate a claimant for deprivation of
personal liberty and freedom and the attendant
mental anguish and
distress:
Minister of Safety and Security
v
Tyulu
2009 (5) SA 85
(SCA) para 26 where it was emphasised that the primary purpose was
‘not to enrich the claimant but to offer him or her some
much-needed
solatium
for
his or her injured feelings.’
[9] The plaintiff
was detained for 4 days - from 19 until 23 August 2010. As to the
circumstances of the plaintiffs arrest, the
nature of the information
used to arrest displays total disregard for his personal liberty. On
the information before him, there
was simply no basis for Muller to
suspect that the plaintiff had committed any offence whatsoever, let
alone one referred to in
s 40(1 )(b) of the
Criminal Procedure Act 51
of 1977
- which would have entitled him to arrest the plaintiff
without a warrant. The plaintiff was arrested on the flimsiest of
excuses
- for standing in the street next to a house. It is
instructive that the plea filed on behalf of the Minister, contained
a bare
denial of the unlawfulness of the arrest, without reliance
being placed on
s 40(1
)(b), as is normally the case in matters such
as this. The Minister, commendably in my view, did not persist with
his defence on
the liability, because there was certainly no basis
for doing so.
[10]
Mr
Zietsman
, counsel
for the plaintiff, referred to the following cases:
Minister
of Safety and Security
v
Seymour
2006 (6) SA 320
(SCA);
Khanyile
v
Minister of Police
(33478/2011) [2013] ZAGPJHC 234 (5
August 2013);
Murrell and another
v
Minister of Safety and Security
(24152/2008)
[2010] ZAGPPHC 16 (22 February 2010);
Braam Beukes
v
The Minister of Safety and Security
(unreported
case number A676/2011 (North Gauteng High Court, Pretoria, 13
December 2013);
Lamula & 3 others
v
The Minister of Police
(unreported
case number 310/2012, South Gauteng High Court, Johannesburg, 16
April 2013). On the other hand, Mr Modukanele, attorney
for the
Minister, also referred to
Seymour
(above);
Tyulu
(above);
Mvu
v
Minister of Safety and
Security and another
2009 (6) SA
82
(GSJ);
Hoco v Mtekwana
2011
(6K6) QOD 18 (ECP).
[11]
I have also considered the case of
Gellman
v
Minister of Safety and Security
2008
(1) SACR 466
(W), which is comparable to the present case with regard
to the duration of the detention. Mr Gellman, an attorney and a
businessman,
was unlawfully arrested and paraded in handcuffs in
front of his employees. He was later detained for over 48 hours,
during which
he was held in a police cell, where he was seen by a
number of his fellow attorneys, and was also deprived of access to
his heart
medication. He was awarded R80 000 in damages.
[12]
In
Seymour
,
a 63 year old small scale farmer who suffered from high-blood
pressure was unlawfully arrested and detained for five days. He
fell
ill the morning following the detention, experiencing chest pains.
On appeal, the
Supreme Court of Appeal (SCA) reduced the amount of R500 000 awarded
by the High Court, to R90 000. In arriving at
the amount of damages,
the SCA restated the general principles applicable in assessment of
general damages and considered past
awards as well as the devaluation
of currency.
[13]
Of the cases mentioned, I find the facts in
Gellman
to
be, in broadest terms, closely similar to the present case. Having
said that, there are important distinguishing factors between
the two
cases. First, Gellman was a practising attorney and businessman. It
is trite that one’s social standing is a factor
to be
considered as part of the personal circumstances in assessing damages
in matters of this nature. The plaintiff in the present
matter was a
domestic worker. Second, and flowing from the first, Gellman was
arrested in the presence of his employees, whereas
the plaintiff was
alone when arrested. Third, Gellman was seen by some of his fellow
attorneys while held in a police cell, whereas
there is no evidence
that beyond his arrest, the plaintiff was seen by anyone known to
him.
[14]
In the present case, however, it must be borne in mind that I have
found that the police officer had acted maliciously, with
an ulterior
motive, and without any intention of bringing the plaintiff to
justice. In
Masisi
v Minister of Safety and Security
2011
(2) SACR 262
(GNP), it was found that the arresting police officers
had acted maliciously. This court made the following observations at
paral
8:
‘
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’.
[15] Having regard
to the circumstances of the arrest, and in particular that malice has
been established; the duration of the detention;
the very limited
personal circumstances of the plaintiff; the lack of information as
to the conditions under which the plaintiff
was detained and the
effect of the detention on him; the awards made in previous
comparable cases; the gradual devaluation of the
currency, I deem
R100 000 to be a just and fair amount of damages for the plaintiff.
[16]
There remains the issue of costs. Pursuant to the findings in paras
[10] and [15] above - that the plaintiff was clearly arrested
for a
purpose ulterior to a legitimate one of bringing him to justice - I
do not intend to order the Minister to pay the costs,
at least at
this stage. The arrest of any person with an ulterior motive is
malicious, and amounts to blatant abuse of power. There
is a
discemable increase in such instances before this court. Where that
is established to be the case, I see no reason why the
arresting
officer should not be ordered to pay the costs from their own pocket.
In the present case, I take a
prima facie
view
that Warrant Officer Muller should be ordered to pay the costs of the
action. However, it is only fair that before such order
is made, the
officer concerned should be given an opportunity to state the reasons
why such an order should not be made.
[17] In the result
the following order is made:
1. The defendant is
ordered to pay the plaintiff an amount of R100 000;
2.
Interest on the amount at 15.5%
per
annum
from
date of judgment to date of final payment;
3.
The issue of costs is postponed
sine
die;
4. The State
Attorney is ordered to immediately cause a copy of this judgment to
be served by the Sherriff on Warrant Officer Johannes
Hendrick
Muller;
5. Warrant Officer
Johannes Hendrick Muller is given 20 days from the date of service
upon him of this judgment, in writing, to
furnish reasons why he
should not be held personally liable for the costs of the action;
TM Makgoka
Judge of the High
Court
APPEARANCES
For the plaintiff:
Adv. Z. Zietsman
Instructed by:
Loubser Van Der Walt, Pretoria
For the defendant:
Mr S.A Modukanele
Instructed by: State
Attorney, Pretoria