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[2015] ZAECMHC 89
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Qulu v Minister of Safety and Security (244/2012) [2015] ZAECMHC 89 (22 October 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION :
MTHATHA
CASE
NO. 244/2012
In
the matter between:
SANGO
QULU
Plaintiff
and
MINISTER
OF SAFETY AND
SECURITY
Defendant
JUDGMENT
NHLANGULELA,
ADJP
[1]
The plaintiff claims that he is entitled to payment of damages,
estimated at approximately R500 000-00, arising out of
an
alleged unlawful arrest and detention on 04 Novembeer 2011 in
Mthatha. The legal basis for the claim is stated to be that Ms
Verster, the Colonel in the South African Police Service, had no
reasonable belief that the plaintiff had sought bribery from a
suspect who had committed a road traffic offence.
[2]
A police officer, Mr Deacon, other than Ms Verster who took the
decision that the plaintiff be arrested, testified. On Mr Deacon’s
own showing in the witness-box, the arrest and detention of the
plaintiff was not justified in law. As much was conceded by counsel
who appeared on behalf of the defendant. The merits of the case being
resolved I proceed to deal with the issue of quantum of damages
to
which the plaintiff is entitled.
[3]
The plaintiff ‘s claim is based on the following heads of
damages, namely:
(1)
Unlawful
arrest
= R250 000-00
(2)
Unlawful
detention = R150 000-00
(3)
Unlawful
body search = R100 000-00
[4]
The evidence led shows that on 04 November 2011 the plaintiff, a
municipal road traffic officer, was arrested whilst preparing
to tow
a suspect’s motor vehicle from York Road to the municipal
pound. Ms Verster told him that he was under arrest and
searched his
body for unknown exhibits which were not recovered and ordered the
colleagues of the plaintiff to deliver him to her
office. The
plaintiff was transported in a private vehicle. Ms Verster received
the plaintiff and caused him to be locked up in
a prison cell without
any charge having been preferred against him. He was locked up at 1pm
and released on the third day at 1pm.
The arrest and search took
place in full view of the members of the public. Plaintiff’s
children were traumatised by the
incident, and in particular that
their father was associated with criminals. In prison, the plaintiff
was caused to sleep on the
cement floor and using dirty blankets. He
was assaulted by the inmates for no apparent reason. This evidence is
common cause.
[5]
As already stated the arrest and detention are unlawful. But it is
not quite clear from the evidence if the body search was
consensual
or not. Nevertheless I accept that the body search was consequent
upon arrest without a warrant so do resulting, as
it were, in an
unjustified conduct on the part of Ms Verster. The circumstances
under which unlawful acts were perpetrated has
not been shown to be
malicious. Verster responded to a call by the suspect that
bribery was being committed. The actions
taken by her did not exceed
what an ordinary policeman would do in the circumstances. The
inconvenience during incarceration and
the alleged traumatic
experience of the plaintiff and his children did not result in a
detectable psychological injury capable
of quantification by any
legal standard. What seem to amount to a violation of plaintiff’s
personality is the arrest and
detention. In my view, the unlawful
searching of the plaintiff’s body was pursuant upon arrest on a
suspicion that a crime
had been committed for which there must have
been detention for the purposes of bringing the plaintiff to book.
The search is not
separable from arrest and it cannot ground a
separate
injuria
.
The plaintiff was ill advised to cite bodily search as an independent
head of damage suffered. At most such an item qualifies
for
assessment under
contumelia
,
itself not being inextricable from arrest and detention. For these
reasons R250 000-00 asked for in respect of search and
detention
has no legal basis.
[6]
Damages for arrest, detention and
contumelia
inherent in the heads of damages as aforesaid require a proper
assessment based on precedent. Counsel for the plaintiff made
reference
to recognised authorities:
J
J Van Rensburg v The Minister of Safety and Security: C/N 2344/2009
(ECG) dated 17/03/2011
,
in which the case of
Minister
of Safety and Security v Tyulu 2009(5) SA 85 (SCA)
was
used. These cases, if properly applied to this case, support an
amount of damages far less than R500 000-00. In
J.J.
Van Rensburg
the court awarded damages in the sum of R120 000-00 for unlawful
arrest and detention including
contumelia
where the plaintiff had been detained for two hours. The police were
found to have acted maliciously in the manner in which they
arrested
the plaintiff, and they had caused plaintiff Post Traumatic Disorder.
In this case the circumstances are not severe. In
Tyulu
the circumstances under which the plaintiff, being a magistrate, was
arrested and detained for 15 minutes were heinous to say the
least.
However an award of R50 000-00 made by the magistrate was
reduced to R15 000-00 on appeal; the appeal court warning
that
the courts may not enrich the aggrieved party but to offer him/her
some much needed
solatium
.
In this case the plaintiff was not a highly placed individual in the
municipal law enforcement organisation, he was not psychologically
injured and the effects of publication of his name as a victim did
not go beyond the day of arrest to warrant a response by a high
measure of damages.
[7]
In
Van
der Merwe v Minister of Safety and Security 2011(6k6) QOD 32 (ECD)
the
plaintiff was awarded R120 000-00 damages for arrest and
detention over 3 days. In
Mbotya
v Minister of Police (1122/10)(2012) Z AECPEHC 43 (10 July 2012)
the
plaintiff was awarded R55 000-00 damages for arrest and
detention over two days. The case of
Mbotya
compares
favourably to this case because the plaintiff was kept in custody for
two days effectively. In the case of
Minister
of Safety and Security v Seymour 2006(6) SA 320 (SCA)
the
court awarded the respondent a sum of R90 000-00 for arrest and
detention committed under heinous circumstances upon a
managing
director of a well known farming co-operative for 24 hours. In this
case counsel for the defendant submitted that a sum
of R90 000-00
is an appropriate amount of damages to be awarded. I am persuaded by
this submission due to the facts of this
case.
[8]
The present case is very simple if evaluated on the facts and
law. If the magistrate could have made an award in the region
of R90
000-00, which is still far below the jurisdictional amount of
R300 000-00, the plaintiff should have been advised to
present
the matter in the magistrate’s court. In that event costs at
the scale of the High Court is exhobitant. For that
reason the Court
considers the scale of costs at the magistrate’s level to be
appropriate.
[9]
In the event the following order shall issue:
1.
The
defendant be and is hereby held liable to compensate the plaintiff
for unlawful arrest and detention, including contumelia in
the sum of
R90 000-00.
2.
The
defendant to pay costs at the magistrate’s court scale.
Z.
M. NHLANGULELA
ACTING
DEPUTY JUDGE PRESIDENT OF THE HIGH COURT
COUNSEL
FOR PLAINTIFF
:
Mr Nabela
INSTRUCTED
BY
COUNSEL
FOR DEFENDANT
: Mr Vaphi
INSTRUCTED
BY
: State Attorney
:
MTHATHA
HEARD
ON
: 14 OCTOBER 2015
DELIVERED
ON
: 22 OCTOBER
2015