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2015
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[2015] ZAECELLC 8
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Okonkwo v Minister of Home Affairs and Another (EL 464/2012, ECD1164/2012) [2015] ZAECELLC 8 (30 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, EAST LONDON
Case no: EL 464/2012
ECD1164/2012
DATE: 30 JUNE 2015
In the matter between:
EMEKA CHRISTIAN
OKONKWO
..........................................................................................
Plaintiff
Vs
MINISTER OF HOME
AFFAIRS
.................................................................................
First
Defendant
THE DIRECTOR GENERAL FOR THE
DEPARTMENT
OF HOME
AFFAIRS
..................................................................................................
Second
Defendant
JUDGMENT
TSHIKI J:
[1] In this action, the plaintiff sued
the defendants for damages which he allegedly suffered as a
consequence of a wrongful and
unlawful arrest and detention which
occurred in East London on or about the 3rd August 2012. It is
common cause that he was lodged
and detained at Fort Glamogan Prison
in East London. He was detained in that prison by the employees of
the first defendant department
for a period of seventy five (75) days
without being taken to Court or dealt with in terms of the applicable
law. Having detained
without trial for such a period the plaintiff
was simply released from custody without appearing in Court.
[2] After his release from custody and
on the 15th May 2012 the plaintiff issued summons against the
defendants for damages aforesaid.
The defendants defended the claim
and the matter took the full duration until it was ripe for trial.
In view of the attitude
of the defendants in defending the matter,
the case had to be given several trial dates. Ultimately, on the
18th February 2015
the defendants conceded the merits of the claim
and consequently an order in the following terms was made:
“[2.1.1] That arrest and
detention of the plaintiff were unlawful;
[2.1.2] That the defendant is liable to
pay plaintiff for the damages proven or agreed upon as a result of
the unlawful arrest and
detention;
[2.1.3] That the defendant is to pay
costs of suit; and
[2.1.4] The issue of quantum is
postponed to the 18th June 2015.”
[3] On the 18th June 2015 the parties
could not settle the issue of quantum and this necessitated a trial
for the determination
of quantum. During that hearing only the
plaintiff was called and the defendants did not call evidence. In
his evidence, the
plaintiff testified that when he was arrested he
was in his shop when the officers of the first defendant’s
department arrested
him. The humiliation by the said officials took
place infront of other people including his wife and their
neighbours. He was
told to close his shop and the officials ordered
him to board the bakkie of the first defendant’s department.
He was eventually
taken to the holding cells awaiting for his fate
that would have to be determined by the officials of the first
defendant’s
department. In the holding cells he would be
threatened with assault by the other awaiting trial prisoners who
were with him.
Some of the awaiting trial prisoners made attempts to
have sex with him. The cells were smelling of urine. He had no bed
to
sleep on, something he would enjoy at his home. He was
dispossessed of the bed as the other awaiting trial prisoners had
occupied
all the available beds. The food he was given was not good
in that he would be given stamped mealies and a lot of bread. He was
not used to eat stamped mealies. The holding cells in which he was
sleeping were congested as there were a lot of other awaiting
trial
prisoners. There was a competition for the use of the toilet.
According to the plaintiff the first defendant’s employees
did
not even know the reason for his arrest and detention. During the
period of his incarceration, he was not able to take care
of his
family, his wife and child. According to the plaintiff, as a result
of the arrest, he is no longer in good terms with his
wife because
she left him and went to stay in Cape Town and that his child is
staying in King William’s Town. His wife left
him because he
was detained in prison. In his business he was selling cellphones
and also gold chain business and he had a licence
to run his
business.
[4] In his evidence plaintiff contended
that he was the only person who could run his shop effectively. He
could not rely solely
on his wife. In any event, she left the shop
after he was incarcerated.
[5] No other witness was called after
the plaintiff and on that note both parties closed their cases.
[6] Ms Da Silva who represented the
plaintiff argued that the defendants’ employees had no warrant
of arrest yet they gave
the plaintiff the impression that they were
in possession of one against him. He was subjected to a lot of
humiliation as he has
described to this Court. He had to line up for
food and at times he had to sleep on the floor. The bedding on which
he slept
was smelling of vomit and urine. The toilet he had to use
had no privacy and was contained in one place for seventy five days
and without a charge put to him.
[7] The defendant’s department
did not take the plaintiff to Court so as to have his case
adjudicated by a competent Court.
There was no justification for the
incarceration. Ms Da Silva referred this Court to decided cases
which she argued had similar
facts as the one in casu. In her view,
the plaintiff was entitled to a sum of R800 000.00 for contumelia
embarrassment, deprivation
of liberty and arrest and detention for
seventy five (75) days. This coupled with payment of costs.
[8] Mr Sibeko who appeared for the
defendants, contended that the amount suggested by Ms Da Silva cannot
be justified. In his view,
the facts of the cases relied upon by
counsel for the plaintiff were distinguishable from those of the case
in issue. He submitted
further that when dealing with the issue at
hand this Court has to take into account that we are dealing with the
public funds.
Therefore, evidence has to be placed before Court so
as to arrive at a fair and just award. He submitted further that the
plaintiff’s
standing in society has also to be considered when
the Court has regard to make an award in this case. He contended
further that
the plaintiff’s predicament should be
distinguished from a situation where a female is put with males. In
a nutshell in
his view, there is no justification for the award of
R800 000.00. He then submitted that an amount of between R380 000.00
and
R450 000.00 would be appropriate in the circumstances.
[9] The right of an individual to
personal freedom is a right which has always been jealously guarded
by our Courts and our law
has always regarded deprivation of personal
liberty as a serious injury. (Ochse v King William’s Town
Municipality
1990 (2) SA 855
(E) at 860F-G). This right has been
protected by, inter alia, section 21 of the Bill of Rights of the
Constitution.
[10] In the case in issue the plaintiff
was taken from his place of business, taken to custody and without
any justification. He
was taken to custody by the officials of the
defendants’ department without access to Court or any form of
freedom. He remained
in custody for seventy five (75) days without
trial. Those who took him to custody did not, in my view, have any
intention to
take him to Court so as to answer to whatever offence he
might have committed. No charges were ever formulated against him
nor
was he taken to Court with a view to have such charges formulated
by the State prosecutors. If what was done to the plaintiff herein
cannot amount to malicious arrest and detention nothing else could be
referred to as malicious arrest.
[11] Plaintiff in this case was never
taken to Court and had it not been for the intervention of the prison
warder who became interested
in what offence was committed by the
plaintiff, he would still be languishing in the police cells. The
plaintiff is a foreign
national from Nigeria who was in the country
lawfully. There was no reason for him to deserve the treatment he
received from the
defendants’ officials. Section 12 of our
Constitution gives everyone 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.”
[12] On the other hand, section 14
confers on everyone the right to privacy. Plaintiff’s dignity
was disregarded by the defendants’
employees and without
justification. Mr Sibeko has argued that the plaintiff’s
status in the community is not known and
therefore, he has to be
awarded damages that are deserved by people of his status. He
submitted that for the reason that the plaintiff
has no special
status in the community therefore the Court should award a lesser
amount of damages to the plaintiff. I do not
agree. The nature of
the treatment which the plaintiff received from the defendants’
employees makes his circumstances more
serious than others in the
ordinary. Staying in custody for no reason and be subjected to cruel
treatment by the awaiting trial
prisoners, without having to be taken
to Court for trial is the worst treatment I have ever seen in cases I
have ever dealt with
during our democracy. No one of the defendants’
employees was prepared to release the plaintiff from custody nor were
there
any intentions to take him to Court to answer to his sins, if
any. In my view, this is one of the worst treatments that had been
endured by a human in our country since the dawn of our democracy.
[13] I must also mention that the cruel
treatment against the plaintiff by the defendants continued even when
he had sued the defendants.
They knew very well that they had no
defence to the plaintiff’s claim but did not consider settling
the claim. It took
the full distance and even when the merits were
conceded on the date of trial they refused to settle the quantum.
The case had
to take the long distance in circumstances when, in my
view, it should have taken the shorter route. This, in my view, is a
reprehensible
treatment in the extreme.
[14] It seems to me that the facts of
all the decided cases I have been referred to although they are of
assistance, are not exactly
the same as those of the present case.
For that reason, I have no reason to refer to them. Each case has to
be treated according
to its own circumstances.
[15] I am of the view that in the
circumstances of this case, an award of R750 000.00 will be just.
[16] In the result, I make the
following order:
[16.1] The first defendant is ordered
to pay the plaintiff a sum of R750 000.00 together with legal
interest on the aforesaid sum
from the date of judgment to date of
final payment.
P.W. TSHIKI
JUDGE OF THE HIGH COURT
Counsel for the plaintiff : Adv Da
Silva
Instructed by : Makaula Zilwa &
Co c/o Msesiwe Vapi Inc
EAST LONDON
Ref: MV/M25/10
Counsel for the defendant : Adv
Sibeko SC with him Adv Mqobi
Instructed by : State Attorney
EAST LONDON
Ref: 482/12-p10 Mrs Yako