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[2015] ZAGPPHC 1053
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Peters v Minister of Safety and Security and Others (70139/2012) [2015] ZAGPPHC 1053 (15 May 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
DATE:
15/5/15
CASE
NO: 70139/2012
LEAAN
WHANITO
PETERS
PLAINTIFF
And
THE
MINISTER OF SAFETY AND
SECURITY
FIRST DEFENDA NT
THE
COMMISSIONER OF THE SAPS N.O.
SECOND DEFENDANT
SERGEANT
NAVING
SINGH
THIRD DEFENDANT
WARRANT
OFFICER VAN ZYL
FOURTH DEFENDANT
JUDGMENT
THOBANE
AJ,
[1]
The plaintiff issued summons against the defendant in which he
alleges firstly, that on the 31st August 2011, after being arrested
by the Metro Police, he was unlawfully incarcerated by the defendant,
in that there was no legitimate basis for such incarceration.
He
further alleges that he was so incarcerated from the 31st August
20122 to the 2nd September 201 1. Secondly, the plaintiff alleges
that he was assaulted by the third defendant, at various stages, as a
result of which assault he sustained serious injuries which
included
a broken jaw. That upon being released from custody he had do undergo
corrective medical procedure that included insertion
of a plate and
screws to his jaw.
[2]
On the papers, the defendants on their part, admit the arrest carried
out by Metro Police but deny that the plaintiff was unlawfully
incarcerated. The defendants admit however that the plaintiff was
moved to Silverton Police Station and that on the 2nd September
2011
he appeared in the Pretoria Magistrates Court on a charge of theft of
a motor vehicle. The assault is also denied.
[3]
At the commencement of proceedings the plaintiff moved an
application for condonation. Plaintiff asked the court to condone
its
failure, should the court find that there was such failure, to give
the notice of intention to sue, as contemplated in
section 3
of the
Institution of Legal Proceedings Against Certain Organs of State Act
40 of 2002
. Leave was granted to the plaintiff to proceed and no
order as to costs was made.
[4]
The defendants took a point that a party i.e. Metro Police, who in
their view should be before court, has not been joined by
the
plaintiff. The defendant in essence raised the question of
non-joinder.
[5]
The substantial test for non-joinder is stated and has come to be
accepted as follows:
"Whether
the
party
that
is alleged
to be a necessa1y party for
purposes of
the joinde1;
has a
legal
interest in the subject
matter
matter
of the litigation, which
may
be
affected prejudicially by the judgment
of
the court
in these
proceedings.
"
See
BOWING NO v VREDEDORP
PROPERTIES
CC &
ANOTHER
2007 (5)
SA
391
(SCA)
pg 398
para F-H
which quoted with approval
the principle in
AMALGAMATED
ENGINEERING
UNION v
MINISTER OF
LABOUR
1949
(4)
SA 637
(A) at
657.
[6]
The action instituted by the plaintiff is based on two causes of
action as stated in paragraph 1 above being unlawful
incarceration as well as assault. The allegation by the plaintiff is
that the first defendant up to the fourth defendant were the
perpetrators.
[7]
The contention by the defendants' legal representative was, and on
this the mis joinder was premised, that Metro Police,
as the
persons that carried out the arrest, was not a party to these
proceedings. I hasten to add that the court is not called
upon to
pronounce as to the legality or otherwise of the arrest. The arrest
that took place on the 31st August 2011 is admitted,
however, the
detention at Moot Police Station is denied whereas the transfer or
move to Silverton Police Station on the l st September
2011 is
admitted.
[8]
It could not be pointed out to me, nor could I discern, how on the
above facts, the order that is sought i.e. a finding that;
(a)
The plaintiff was unlawfully incarcerated and/or,
(b)
Was assaulted by the defendants,
will
likely prejudice the legal interests of a party that has not been
joined. That party being Metro Police.
[9]
The question of indemnity as advanced by the defendants legal
representative is in my view far fetched for two main reasons.
Firstly, the decision to incarcerate is the defendants and the
defendants alone. Secondly, there is no averment that the arrest
which is not the cause of action but which has been admitted by the
defendants, was carried out in a manner that calls for this
court's
intervention and/or pronouncement. Simply put, the defendants cannot
seek indemnity from Metro Police, for the alleged
unlawful detention
carried out by the defendant alone or indemnity from the alleged
assault which the defendants deny occurred.
[10]
In the absence of prejudice potential or real, on the party not
joined, i.e. Metro Police, the point raised, that of mis-joinder,
failed with costs.
[11]
Owing to the time constraints and the availability of the expert
witness it was ruled that the evidence of the plaintiff s
expert, Dr.
Pierre Brits be heard first. The defendant did not object to this
approach and the plaintiff was directed to be outside
court for the
duration of the testimony of Dr. Brits.
[12]
Dr. Brits testified that he was a psychologist who consulted with the
plaintiff and thereafter prepared a report which was
admitted into
evidence as exhibit "A" and ran form pages 1 through to 85.
After stating his qualifications he indicated
that he was initially
in the employ of the Department of Correctional Services but that he
later joined the Department of State
Security where his
responsibilities included,
inter alia,
helping employees who
had been exposed to trauma. He asserted that he was an expert in the
field. He explained what Post Traumatic
Stress Disorder was as well
as its origins. He sketched briefly details of the initial
consultation with the plaintiff. He recorded
the fact that he was at
first cagey but later became more open and was able to open up
and tell his story.
[13]
He testified that in his view the plaintiff suffered from depression
and that he was able to formulate that view having gathered
"raw
facts" from the plaintiff himself. He pointed to the facial
injuries that the plaintiff sustained and how these
would affect him
in his daily life. In his view the plaintiff would need to be
empowered
with coaching skills by way of psychiatrist treatment. He testified
that the plaintiff would benefit from future psychological
treatment
as he exhibited signs of losing interest in life. He stated as an
example the incident in 2013 when the plaintiff had
a bike accident
as a result of which both his legs were broken necessitating him to
be wheelchair bound. Whereas previously he
was a fearless young man
who had insatiable appetite in motor bikes, following the incident he
was hesitant and
indecisive.
In his view further consultation with experts in the future would
assist him regain his confidence and trust.
[14]
He testified that the plaintiff was well known in his township as a
talented motor cyclist who carried the nickname "Van
Damme",
and that his father was known to be a specialist mechanic who was
able to tweak motor bikes and make them more powerful.
The plan was
for the plaintiff to attend a course of sorts near Delmas for his
biking skills to be honed and for him to be trained.
Since the
accident his confidence has been affected and he lacks self
confidence to appear in public and to participate in biking
events.
In his view the plaintiff s future prospects as a biker have been
seriously
compromised.
[15]
The beating he received from Sgt. Singh, the third respondent, in
front of the members of the public which included the complainant
in
the motor vehicle theft case, as well as the suffocation to the point
where he wetted himself twice, was both humiliating and
violated his
human rights. As a result he experienced conflicting emotions and,
given that his mother is a police woman, seeing
her in police uniform
extracted from him mixed emotions, and so does the sound of police
sirens and the sight of police vehicles.
His self esteem has been
lowered and his self worth taken away. This will likely negatively
impact on his long term functioning
with the opposite sex, so he
testified.
[16]
Prior the incident the plaintiff was a fearless young man who
probably, given his talents, would have gone on to compete
internationally.
He now lacks spontaneity, was presumed guilty
till
he proved himself otherwise, was made to interact with hardened
criminals, lost trust in the police, suffered trauma and contemplated
suicide. At the time he had been busy with matric but as a result of
the incident he failed two subjects his explanation being
that he
could not concentrate because of the trauma and the effect of the
medication to treat same.
[17]
In future, it would be necessary for the plaintiff to receive therapy
from a psychologist and to be coached by a professional
to equip him
with coping skills, all of which require money. Such a process would
entail the training of his immediate family so
as to empower them to
support him in that endeavor. The anxiety from which he suffers can
be characterized as extreme. If must
be accepted, so he testified,
that anxiety will remain a part of his life. His quality of life has
been diminished. He has no dreams,
lacks self confidence and
contemplates moving to a new place. Given that he will not be able to
cycle again, suffered emotional
shock and given the trauma that he
had to endure, the plaintiff will benefit from an award that will
equip him to cope with all
the challenges brought about by the events
that were visited upon him. His evidence in chief ended on that
point.
[18]
Before cross examination could take place the the parties indicated
that the defendant was not going to proceed therewith and
that the
defendants have made the following concessions, which were duly
noted;
1.
The merits are conceded in full;
2.
The defendants are liable for costs incurred on the merits on a
scale as between attorney and client.
[19]
The Plaintiff, Leaan Whanito Peters testified that on the 31st August
2011 he was driving his father's vehicle a red Honda
Ballade on the
way to MacDonald. He was stopped by Metro Police who included one
Rudi who is well known at Eersterus. He was then
handcuffed. He asked
what crime he had committed but was not at that stage answered. He
was taken to Dykor Street in Silverton.
On arrival he was told
that
the person he had been with earlier stole a motor vehicle. The person
referred to was one Clinton Smith whom he had given a
lift at a
traffic light and had driven with for about 5km. During the
interrogation and while in handcuffs, he was being assaulted
in full
view of members of the public.
[20]
He had been handed over to the SAPS flying squad by the Metro
Police. The members of the flying squad were the third
and the fourth
defendant. He was driven and made to sit at the backseat of the motor
vehicle which was driven by the fourth defendant.
The third defendant
sat with the plaintiff at the back seat and continued to assault him.
He lost count of how many times he was
assaulted but he was being hit
with clenched fists and open hands. During this time he experienced
excruciating pam.
[21]
At some point a firearm was drawn by the third defendant and
pressed hard against his private parts as he sat in the
car. At which
point he wet himself. An experience which was both horrifying,
humiliating and deeply embarrassing. As he had been
crying and
reeling in pain, he was told
"to
stop c1ying
like a bitch".
The vehicle he was driven in was taken to an
isolated railway track near Silverton where he was made to alight the
vehicle and thrown
on the ground. The third defendant removed a
plastic bag from the boot of the car which he placed over his head,
tightened it around
the neck and suffocated him with till he suffered
a black out. It is also during this suffocation that he again wet
himself. He
indicated that he was in terrible pain and was crying
throughout, repeatedly begging the police to stop. He could feel that
his
tooth was loose and that there was something not right with his
jaw. The plaintiff was being assaulted throughout.
[22]
The vehicle was driven to K9 where the third defendant is based and
his girlfriend was collected. Throughout all this he was
in
handcuffs. He was driven to Silverton Police Station and on arrival
it was found that the cells were full. It is also at Silverton
where
he saw his father. He avoided eye contact with his father but could
see that he was a broken man and was in tears. On realizing
that the
cells were full they drove him to Moot Police Station. On the way
there they went via Kilnerton where they dropped off
the third
defendant's girlfriend. They also stopped at a shop where they bought
cigarettes. At Moot Police Station his mother asked
to see him and
noticed that he had a swollen face on the left hand side, a loose
tooth and bruises in the neck area. All the injuries
had been caused
by the assault, including the loose tooth, he suffered at the hands
of the third defendant. He testified that seeing
his mother at Moot
Police Station was heart breaking. She was also in tears and appeared
devastated. She asked if the plaintiff
could be taken to hospital in
light of the injuries to which request they agreed. As the plaintiff
was on a medical scheme she
wanted to take him to a private hospital,
however this was refused. The plaintiff was taken to Tshwane Hospital
where he was examined
by a medical practitioner. He was in handcuffs
which were taken off momentarily when he was examined but were
thereafter put back
on him. He told the attending Doctor that his jaw
was broken but was told that if it was broken he would not have been
in a position
to talk. This explanation he accepted. He was
prescribed pain medication which was given to the third defendant.
[23]
He was thereafter taken to Moot Police Station where he was read his
rights and certain fon11s were completed. He was then
booked into the
cells. His last meal had been around lunch time and since then he had
not eaten anything. The first night he was
alone in a cell and slept
on a mattress. He felt humiliated and thought he was like a nobody.
More like a dog in a cage. It was
cold, he was in pain throughout the
night and could hardly sleep. The following morning he was placed in
a populated cell with
four other detainees and spent the entire day
there. There was an open toilet with no privacy at all. They were
given food however
owing to the pain he was experiencing in his jaw,
he couldn't eat as he couldn't chew. At about 12:00 he was
transferred to Silverton
Police Station where he spent the night. The
sleeping conditions were just as bad. He didn't know who to trust and
could not sleep
fearing something might happen while he slept. The
smell was equally unpleasant. The following morning he and others
about thirty
to forty in total, were transported by truck court. but
did not appear in court. He was told while in the cells that charges
had
been withdrawn and that he could go home.
[24]
He was met on being released by his father who offered him food, he
asked his father to take him to a dentist as he was in
pain and his
tooth was loose as he thought it could be pulled out. He was
transported to the dentist who after taking x-rays and
examining him
informed him that his jaw was fractured and that there needed to be a
medical procedure performed immediately. He
was then referred to
another specialist and an operation was perfonned where a plate was
inserted into his jaw and screws were
also inserted. Following this
procedure, for months he could not take any solids
surviving
on only liquids. To this day, so he testified, he still experienced
pain on cold days and he avoids certain solid foods
that are hard to
chew. These problems did not exist before the assault incident.
[25]
He was a keen motor cyclist who was well known in his township. He
participated in drag racing and attended cycling shows.
He had
considered making cycling a profession. After the incident he became
cagey and was fearful of being pulled over by the police
whom he
believed were supposed to protect the citizenry but who in his case
did the opposite. As a result he didn't want to drive
anymore. He is
no longer an outgoing person and since he was held in high esteem by
the kids in his community he felt that he had
lost the self worth
although he consulted Dr Brits who assisted him immensely, he no
longer views the police in the same light.
As a result of the arrest
he could hardly concentrate and he consequently failed two subjects.
He had to repeat them in order to
pass matric and lost a year as a
result.
People
no longer view him in the same light. He was injured, has been
scarred emotionally, suffered shock and he now believes he
should be
adequately compensated therefore.
[26]
During cross examination he confirmed that the drag races that he
participated in was structured and various clubs organized
them.
Although he did not belong to any club he participated as an
independent competitor. He confirmed that he was once incarcerated
on
an assault charge but that in that matter charges were withdrawn.
[27]
Dawn Antoinette Bowers testified that she is the plaintiff s mother.
She confirmed that when she saw the plaintiff at Silverton
Police
Station he was down, appeared to be in pain, was in tears and did not
want to keep eye contact. She tried to be strong and
not to cry in
front of him. She tried speaking to the fourth defendant but was told
nothing. Next she saw the plaintiff at Moot
Police Station after she
specifically asked to see him. She observed that his face was swollen
and he had blue eyes. She offered
him food which the plaintiff could
not eat. She asked what had happened to him and the response he
received was that adrenaline
was high. She insisted that he be taken
to hospital to which they agreed. However, they refused that he
should use her medical
scheme and also refused that she should
accompany him to hospital.
[28]
After charges were withdrawn the plaintiff was collected from court
and he said that he should be taken to the dentist as his
tooth was
loose. He was informed by the dentist that the tooth could not be
removed as his jaw was broken. He was operated on to
correct the
broken jaw.
[29]
She confirmed that the plaintiff was a kind hearted child who loved
motorbikes prior the incidences that gave rise to this
action. He was
held in high regard by members of the public at Eersterus and was
considered to be a role model. He was very competitive
in the races
he participated in to the extent that he almost always was
first. This led to an approach by sponsors who wanted
to sponsor him
however her attitude was that he should finish matric before such
sponsorship could be considered. Following the
events of the 31st
August 2011 to the 2nd September 2011 the plaintiff is no longer the
same person, so she testified. He was now
more reserved and has a
diminished self esteem. He is no longer out going, preferring instead
to stay at home and not socialize.
While he enjoyed participating in
charity events before the incidents, that is no longer the case. He
wants to move out of Eersterus
to a place where he is not known as he
struggles to face the people in his township. His attitude towards
the police has changed.
Such attitude extends to her since she is in
the employ of the SAPS.
[30]
In argument it was submitted on behalf of the plaintiff that the fact
that the defendant conceded merits and tendered costs
on a scale as
between attorney and client, was indicative of the fact that there
was acknowledgement of wrongdoing. It was argued
further, that the
testimony of the expert was well reasoned and laid the basis for
future consultations and debriefing therapy.
An application was
brought to amend the figure in respect of the 60 consultations from R
l 400-00 per consultation to R 1600-00
per consultation, thus
bringing the total to R96 000-00 as well as the figure in respect of
continued future debriefing from R200
000-00 to R220 000-00. The
proposed amendment was not objected to and was allowed.
[31]
With regards to general damages it was submitted on behalf of the
plaintiff, in detail, that the various heads of damage be
compensated
accordingly. It was argued that varying amounts be allocated for
emotional trauma, shock,
contumelia,
pain and suffering as
well as loss of amenities of life. I was referred to the judgment of
Rowan
v Minister of Safety and Security NO 2011 (3)
ALL 443 (GSJ),
with regard to the unlawful
detention.
[32]
On behalf of the defendants it was conceded that a case for the 60
consultation as well as the debriefing therapy has been
made out and
that there was no qualms with an award for these heads of damage. The
objection was noted with a claim for therapy
to be offered to the
immediate family. It was further submitted that the various heads of
damage should be looked at in a globular
manner and not be
compartmentalized. With regard to the unlawful detention it was
argued that having regard to the fact that merits
have been conceded,
an award of R40 000-00 per day of unlawful detention would adequately
compensate the plaintiff. In this regard
I was referred to the
judgements of
Minister of Safety v Scott
[2014] ZASCA 84
,
M
asisi v
Minister
of Safety and Security 2011 (2)
SACR
262 (GNP).
[33]
It was further submitted that an award for the injury to the jaw of
the plaintiff should be compensated accordingly and in
this regard I
was pointed to the judgment of
Phillemon Kgoroshi Matladi v
Road Accident Fund
,
that involved injuries to the jaw.
It was submitted in conclusion that an award of R6 l 6 000-00
comprising the special damages
as testified to by Dr Brits in the sum
of R3 l 6 000-00 plus R300
000-00
being a globular amount for general damages would be a fair and
reasonable award.
[34]
The determination of an appropriate amount to award for damages is by
and large a matter of discretion. The deten11ination
requires the
evaluation of the personal circumstances of the plaintiff, the
circumstances surrounding his detention as well as
the assault. A
further consideration is to seek guidance from comparable awards made
previously. Keeping in mind that the comparison
is not a meticulous
examination but rather a guide. The discretion remains in tact and is
in no way diminished by that exercise.
See
Ngcobo v Minister of
Pi/ice
1978 (4)
SA 930
(D)
,
Protea Assurance Co Ltd
v Lamb
1971 (1) SA 530
(A), Masisi
v Minister
of Safety
and Security
2011
(2)
S
A
CR
262 (GNP).
[35]
Bearing in mind the purpose of awarding general damages as
articulated in
Minister
of Safety
and Security
v
Tyulu
2009
(5) SA 85
(SCA)
being the primary purpose is
"not
to enrich [the claimant] but to offer
him or her some much-needed
solarium
for
his or her injure
d
feelings
".
In the context of this matter he has to be compensated for unlawful
detention, the fact that his freedom was taken away
from him as well
as its duration, the fact that he was assaulted severely and that as
a direct result of the assault he will require
future professional
intervention.
[36]
The plaintiff was at the time 19 years of age and was attending
school. Up until the incident, there is no indication
that he could
not realise his full potential as a person. There were no impediments
to him reaching his dreams. He enjoyed sports
and was a keen motor
biker. He regularly participated in biking events sometimes
competitively and he got diplomas, so he put it,
prize money as well
as other awards. It is clear that he saw a future for himself in
professional biking. This is supported by
the fact that his talents
were spotted by sponsors who wanted to be involved in his biking.
This is indicative of the fact that
but for the incident he would
have gone further to achieve a lot in biking. The community in which
he lived, that of Eersterus,
looked up to him, young as he was, as a
role model. He came from a stable family structure and it is not
disputed that he gave
his time to charitable causes. He was therefore
a well rounded young man, rooted in his community.
[37]
An act of kindness, that of giving a lift to someone he knew,
precipitated a chain of events that has left the plaintiff a
shadow
of his former self. He is now a broken young man turned into an
introvert, lacking in trust, belief and self confidence,
afflicted by
pain and with a future that lies in ruins. Following his arrest by
Metro Police, he was handed over to the third and
fourth defendants.
He was assaulted in full view of members of his community while in
handcuffs. While being transported and with
his hands handcuffed
behind him, he was continuously
assaulted.
He did not testify about the point at which he felt his jaw break or
his tooth coming loose. The first time he referred
specifically to
the tooth and the painful jaw was when he was lying on the ground
after being suffocated. This, in my view, points
to the fact that the
assault was not relenting. There was no opportunity for him gather
his thoughts and to feel so as to be able
to point to the moment at
which his jaw was broken. A firearm was pointed at and pressed hard
against his private parts obviously
in a threatening manner. One can
not begin to imagine the fear that engulfed him to a point where he
wet himself. The humiliation
and loss of dignity that he suffered
thus far was just reprehensible. That he was taken to an isolated
place where effectively
he was tortured by suffocation to a point
where he passed out and again wet himself is criminal conduct of the
worst kind.
[38]
The code of ethics of the SAPS rests on the following five pillars,
1.
Integrity,
2.
Respect for Dignity,
3.
Obedience
of
the Law,
4.
Service Excellence and
5.
Public Approval.
The
fourth and fifth defendants violated each and every one of the five
pillars. The actions of particularly the third defendant
were clearly
intentional. It could not have been lost to him that he ought to
conduct himself with utmost integrity. That he was
dealing with a
fellow human being, a youngster, deserving of his trust, honesty and
respect. Instead of respecting the plaintiff
s dignity, he violated
it. He did not obey the law but he simply set out on a course to
deliberately violate it. He became a perpetrator
of violence on
someone that was vulnerable. His actions were deplorable and would
not find approval with members of the public.
The strongest
disapproval and condemnation of the conduct of the third defendant is
well deserved. See
V
an
Rensberg
v City of Johannesburg
2009
(1)
SACR
34
(W).
[39]
The Constitution accords everyone the right to freedom and security
of the person, which includes the right -
(a)
not be deprived of freedom arbitrarily or without just cause.
Section 35 of the Constitution provides detailed
rights to arrested,
detained and accused persons, including the right to be released if
the interests of justice permit and
upon reasonable conditions,
and to humane conditions of detention. That the human rights of the
plaintiff were violated was conceded.
Although the concession is
commendable it is however damning and a serious indictment on the
state of policing.
[40]
The plaintiff was on the 31st August 2011 at about l 5h00 after being
arrested by Metro Police, placed in custody of the defendants
before.
From that time he was driven around in a police vehicle. At some
point the police vehicle stopped at a shop so the defendants
could
buy cigarettes. A passenger was also given a lift and later dropped
off at her place while the plaintiff was in the vehicle.
These are
serious violations. He was released on the 2nd February 2011 at about
11h00. He was therefore in detention for a full
day and 20 hours. He
slept in police cells twice, admittedly he could not sleep. Given
that he was in pain for the duration of
his incarceration and that
the conditions he was exposed to were very foreign to him as a result
he found it difficult to cope.
Therefore it must have been a very
difficult period of two days for him.
[41]
I have looked at case law and have compared the awards granted to
what I propose here under. I have where
necessary adjusted what was
awarded then, as a guide, in line with inflation. I have taken into
account the fact that the defendants
conceded the merits of this
matter and that no witnesses were called on behalf of the defendants.
Also, there was no mounting of
a substantial challenge to the
evidence of the expert witnesses. I am of the view that an award for
therapy of immediate family
should not be allowed. A fair and
reasonable amount for future medical expenses should exclude family
therapy. For purposes of
this judgment general damages will be
considered in a globular manner.
[42]
The parties are
ad idem
that costs should follow the event on
a scale as between attorney and client.
[43]
I therefore make the following order;
43.1
. The defendants are directed to pay the plaintiff the sum of R816
000-00 (Eight Hundred and Sixteen Thousand Rand),
43.2.
Interest on the above amount at the prevailing rate from the 9th May
2012 to the date of final payment,
43.3.
Costs of the action on the scale as between attorney and client.
_____________________________
SA
THOBANE
ACTING
JUDGE
OF THE HIGH COURT
Date
Heard: 12th and 13th May 2015
Date
of Judgment: 15th May 2015
Counsel
for Plaintiff: Adv. Coetzee
Counsel
for Defendant: Adv. Mfazi