About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2015
>>
[2015] ZAECMHC 70
|
|
Mgele v Minister of Police and Others (1257/2011) [2015] ZAECMHC 70 (6 October 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, MTHATHA
Case No: 1257/2011
DATE: 06 OCTOBER 2015
In the matter between:
VUYISA
MGELE
.........................................................................................................................
Plaintiff
And
THE MINISTER OF
POLICE
......................................................................................
First
Defendant
POLICE OFFICER
GETYEZA
................................................................................
Second
Defendant
POLICE OFFICER
MALANGENI
............................................................................
Third
Defendant
JUDGMENT
STRETCH J:
[1] On 2 June 2011 the plaintiff issued
summons against the defendants claiming R600 000 (six hundred
thousand rand) in damages
quantified as follows:
a. Wrongful arrest R150 000
b. Wrongful detention R150 000
c. Torture, humiliation, degradation
and contumelia R150 000
d. Pain and suffering R150 000
[2] The defendants delivered a notice
of intention to defend but failed to plead to the claim despite
having been given notice in
terms of rule 26 of the uniform rules of
this Court. In the result, they became ipso facto barred from
pleading.
[3] The plaintiff accordingly set the
action down (supported by a damages affidavit) for default judgment
in compliance with the
provisions of subrules 2(a) and 4 of rule 31.
Indeed, this action has been enrolled for default judgment on no less
than three
occasions:
a. On the first occasion, being 13
December 2012, this Court issued an order granting the
defendant/defendants (who were duly represented
by counsel on that
day) the opportunity to bring a substantive application for the
upliftment of the bar and to deliver draft pleas.
This indulgence
appears to have fallen on deaf ears.
b. On the second occasion, being 7 May
2014 (18 months later), the defendants were again represented, this
time by an attorney.
On that occasion this Court ordered that the
matter be removed from the roll with the “defendant” to
pay costs on
a party and party scale.
c. On the third occasion, being 18 June
2015, the matter came before me. In the interests of justice and
finality, I refused to
grant any further indulgences or to
countenance any further delays and heard the plaintiff’s
evidence as provided for in
rule 31(2)(a). It goes without saying
that the defendants are at liberty to invoke the provisions of rule
31(2)(b) should they
be dissatisfied with the order I am about to
make.
The claim
[4] According to the particulars of the
plaintiff’s claim the police arrested and assaulted him at his
home in the area of
Ntsundwane on 18 November 2010. They were not in
possession of a warrant of arrest. In particular, the third
defendant attempted
to suffocate him with a refuse bag. The police
also confiscated R4 000, 00 in cash as well as a number of cartons of
milk. Thereafter
he was detained for four days. He sustained
various injuries all over his body. According to a medical report,
he presented with
multiple bruises and whip marks on his forearms,
his right shoulder and his penile shaft.
The affidavits
[5] In his affidavits in support of
default judgment, the plaintiff states that the second and third
defendants were amongst the
police who assaulted him. He lists the
injuries which he sustained (which are confirmed by hospital records)
which resulted in
him suffering from backache, pain in the area of
his waist, a haematoma, genital pain, multiple bruises, weal marks
across his
right shoulder and a laceration and bruising of the shaft
of his penis, resulting in erectile dysfunction.
[6] He was detained for a period of
four days without a court appearance.
The evidence
[7] The plaintiff (who was 23 years old
with a grade nine education at the time of the assault) elaborated
further when he testified.
He described how at least ten uniformed
policemen in about seven marked police vehicles arrived at his home
at about 22h00 on
18 November 2010. They demanded firearms which the
plaintiff did not have and which they did not find despite a diligent
search.
[8] They produced neither a search
warrant nor a warrant of arrest. They handcuffed him and removed and
confiscated R4 000, 00
from under his pillow. This was money which
his father who lived in Gauteng had sent to him and his five
unemployed siblings.
They never saw this money again. His
assailants helped themselves to 16 cartons of long life milk which
they consumed then and
there. They assaulted him throughout the
night with sticks, sprayed pepper spray in his eyes and attempted to
suffocate him with
a plastic bag. This took place in the presence of
his younger brother, who was also assaulted and detained by the
police. By
the time they were taken away in one of the police
vehicles it was already daylight. Many people witnessed their forced
removal.
[9] He was detained in police cells for
four days. He described the cells as cold with cement floors, smelly
latrines and infested
with lice. He was bitten by the lice.
[10] The assault to his genitalia
resulted in him experiencing difficulty urinating which was not
relieved by medical intervention.
He still (five years later)
suffers from back pain and pain in the area of his waist,
particularly when the weather is inclement.
At the time that he
deposed to his affidavits in 2012 he was suffering from erectile
dysfunction. In the plaintiff’s words,
his “manhood is
not as strong as before.” He was not given any reasons for his
arrest and detention. When he was
released he was simply instructed
to go home as he had been “found not guilty”. He did not
enquire after the money
which the police had taken for fear of being
beaten up again.
[11] At the time he had been doing odd
jobs as a plasterer earning minimal wages.
Damages
[12] The matter was adjourned for the
appellant’s counsel to submit heads of argument on the question
of an appropriate damages
award, which heads were submitted on 8 July
2015, but for some inexplicable reason only made their way into the
court file some
six weeks later.
[13] Having heard the plaintiff’s
story and his description of the savage and unacceptable conduct of
people who are meant
to protect civilians, it is incumbent upon me to
decide whether the claim for damages in the sum of R600 000, 00 is
justified.
[14] Whilst each case should be
considered on its own merits it is a useful tool to have regard to
comparable matters in assessing
damages. I mention a few:
a. Ndlovu v Minister of Safety and
Security (Eastern Cape High Court, Grahamstown: case no. 1203/2010)
Corbett and Honey vol VII
K6-38 (original service, 2014)
Date of judgment: 12 August 2011:
In this matter the plaintiff, a
Zimbabwean citizen, was unlawfully arrested at his residence on
suspicion of the possession of stolen
property which had been found
in his house. He was incarcerated for two days in police cells under
difficult circumstances despite
having a fixed address. After his
first appearance he was remanded for a further seven days for a
formal bail application on the
basis of unsubstantiated, incorrect
and insufficient information. The charges against him were
subsequently withdrawn. Mageza
AJ awarded R230 000,00 in damages
(R55 000,00 for unlawful arrest and detention in police cells and
R175 000,00 for unlawful detention
in prison for seven days). This
award, upgraded to today’s value, amounts to R285 890, 00.
b. Van der Laarse v Minister of Police
and Another
(North Gauteng High Court, Pretoria:
case no: 31378/2012)
Corbett and Honey vol VII K6-107
(service 1, 2015)
Date of judgment: 18 October 2013:
The plaintiff was arrested without a
warrant at Beit Bridge border post whereafter he was detained for
four days in a hopelessly
overcrowded container under filthy
conditions. He was arrested by the second defendant who acted as if
he was power drunk and
in a disgraceful display to all those who
witnessed these events. After four days he was released on bail.
All charges against
him were later withdrawn. Ebersohn AJ awarded
general damages of R280 000,00 (which upgraded comes to R313 880,00)
with mora interest
calculated from the date of the issue of summons
to date of payment. The learned judge also directed the registrar to
forward
the pleadings and all judgments in the matter to the
Independent Police Investigative Directorate for their attention and
urgent
action against the second defendant (one Captain Sekelele)
with the request that they report back to the court within 12 months
with respect to what steps had been taken against him.
c. Bantu v The Minister of Police and
Another
(South Gauteng High Court,
Johannesburg: case no: 13609/2013)
Corbett and Honey vol VII K6-120
(service 1, 2015)
Date of judgment: 21 November 2014:
The plaintiff, a 30 year old male
security officer, was ordered off a train after an enquiry as to why
the train had been delayed.
He was accused of having been forward
and clever. He refused to leave the train as he was in possession of
a valid ticket. He
was grabbed by the collar and hit in the face with
a fist and open hands. He was pushed down and his testicles were
squeezed in
full view of his wife and other passengers. Thereafter
he was forcibly removed from the train and detained in a holding cell
for
90 minutes. He was later handcuffed and bundled into a police
van which drove at high speed, caused him to be tossed around in
the
bin of the vehicle. At the police station he was detained in a small
cell with several other people in filthy conditions for
48 hours
whereafter he was taken to court. A concocted charge of interfering
with the duties of police officials, was withdrawn
by the
prosecution. Makume J awarded compensation of R260 000,00 (which
upgraded comes to R275 860,00) made up of R180 000,00
for unlawful
arrest and detention, and R80 000,00 for assault.
[15] 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 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 on such facts’.
[16] 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.’
[17] In my view the facts of the matter
before me cry out for a high amount of damages, particularly in view
of the following aggravating
features:
a. The police stole money and food from
the plaintiff and his unemployed siblings. They consumed the milk
which they stole from
him in his presence.
b. They assaulted him savagely and
severely in the presence of his brother from 22h00 until dawn of the
following day.
c. The assaults have resulted in the
plaintiff still suffering from bodily pain today. He suffered from
erectile dysfunction for
some time after the assault and still feels
stripped of his manhood.
d. He was handcuffed and bundled into a
police van in the presence of his sibling and in full view of the
members of his community,
by at least ten uniformed policemen who
left his home in a cavalcade of at least seven marked police
vehicles.
e. In the circumstances he was treated
as if he was an extremely dangerous criminal.
f. He was detained at length under
appalling conditions.
g. The police blatantly ignored the
plaintiff’s non-derogable rights set forth in section 35 of
this country’s Constitution.
h. Their conduct was malicious.
[18] Before making a final award with
respect to compensation, it is necessary for me to deal with the
position of the second and
the third defendants. As I have said, the
plaintiff’s version is that his home was invaded by many
policemen, and that he
was also assaulted by many. The only reason
he was able to single out the second and the third defendants was
because he was able
to read their name tags, and because it was the
third defendant who had tried to suffocate him. It is trite law that
the first
defendant is liable for wrongful and unlawful acts
committed by members of the police during the course and scope of
their duties.
There is nothing before me to suggest that this case
is any different. It also seems to be the view which was ultimately
adopted
by the plaintiff’s legal representatives and by the
judges who made previous orders in this matter.
[19] Having regard to the aforegoing I
am of the view that an award of damages in the sum of R400 000,00 is
appropriate, made up
as follows:
a. Unlawful arrest: R100 000,00
b. Unlawful detention: R150 000,00
c. Assault, contumelia and pain and
suffering: R150 000,00
[20] I accordingly make the following
order:
a. The first defendant is directed to
pay to the plaintiff the sum of R400 000, 00 (four hundred thousand
rand) together with interest
thereon determined according to the
current mora interest rate calculated from the date of judgment to
the date of payment.
b. The first defendant is directed to
pay the plaintiff’s costs of suit.
c. The registrar of this court is
directed to forward a copy of this judgment to the National Director
of Public Prosecutions and
to the Independent Police Investigative
Directorate for their attention, together with a request that they
report back to this
Court within 12 months regarding any action taken
or contemplated in connection with this matter.
I.T. STRETCH 6 October 2015
JUDGE OF THE HIGH COURT
For the plaintiff: Mr Z. Nabela
Instructed by R.M. Sodo Inc
Tel: 047 5323017
Fax: 047 5323019
Cell: 083 2292 912
Email: sodo@telkomsa.net
For the defendants: The State
Attorney Mthatha
Ref. 681/11/A6(MR BEMBE)