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2014
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[2014] ZAGPPHC 261
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Mororo v Minister of Police (25041/2011) [2014] ZAGPPHC 261 (19 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO:
25041/2011
DATE: 19 MAY 2014
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
PERPETUA
KELEBOGILE
MORORO
..........................................................................
Plaintiff
and
MINISTER
OF
POLICE
................................................................................................
Defendant
JUDGMENT
Tuchten
J
:
1 The plaintiff was
arrested on 9 March 2011 on a charge of housebreaking and theft. She
was detained overnight in a cell in Kuruman
and released the next
day. The charge was withdrawn. The parties agree that the arrest was
unlawful The issue before me is the
quantum of her damages.
2
The background to this is that the plaintiff was at the time
suffering great matrimonial difficulties. But she and her former
husband still shared a house. The division of their joint estate was
contentious.
1
It seems that she took away some household goods, upon which the
plaintiff’s former husband laid the charge. On both the
legal
and the factual level, the charge was entirely baseless.
3 The plaintiff is a
teacher at the Mathibestad Primary School, in the village of
Mathibestad, some 30km from Kuruman. The school
had some 465 pupils
and 13 teachers. There are disputes around the precise details of the
plaintiff’s arrest and ultimate
detention in the cell in
Kuruman. With one exception, I think that these disputes must be
decided on onus, because the defendant’s
version on these
issues cannot be rejected. So what I proceed to recount is
essentially the defendant’s version.
4 The plaintiff was
called from her classroom to the office of the principal. There she
was arrested on the charge I have described.
The plaintiff says that
there were a considerable number of police officers present while the
defendant’s version is that
there were only three officers. In
support of her version, plaintiff’s counsel relied on an entry
in the school’s attendance
register. No evidence was led on
this document by the plaintiff but it was the subject of a notice in
terms of rule 35(9). The
defendant was called upon to admit or deny
its veracity but did not respond. The document therefore became
admissible as being
what it purported to be.
5
The attendance register reflects that on 10 March 2011 (which is the
day
after
the
plaintiff was arrested) a police officer established in evidence to
be W/O KS Moalahi entered the school premises “to
arrest Mrs
Mororo”) I am satisfied that the date was wrong and that the
entry was made on the date of the arrest. This is
because there would
have been no purpose in trying to arrest the plaintiff on 10 March
2011 because she had already been arrested.
W/O Moalahi was proved to
be available but was not called by the defendant.
6 W/O Moalahi was
not one of the three officers who on the defendant’s version
came to arrest the plaintiff. I am therefore
satisfied on
probabilities that the police arrived at the school in considerable
numbers and with three vehicles, as testified
to by the plaintiff. I
do not however think this takes the matter much further because it
was common cause that the plaintiff was
allowed to drive her own
vehicle to Mathibestad police station.
7 After the
paperwork was completed there, the plaintiff was transported to
Kuruman and, as I have said, detained overnight in a
cell in the
police station in Kuruman.
8 The cell was not
up to the standard to which the plaintiff is accustomed. She struck
me as a refined lady who suffered greatly
as a consequence of her
ordeal. She had to share the cell’s probably rather basic
ablution facilities. I must accept that
those facilities included a
flush toilet which was working. The plaintiff had to sleep on a thin
length of sponge which functioned
as a mattress and had some police
issue blankets, all of which were far below the standard by which the
plaintiff lived.
9 On 17 March 2011,
the plaintiff sawa clinical psychologist, Ms Katlego Fandie, in
Kimberley. Ms Fandie diagnosed her as suffering
from depression,
recording that the symptoms had been present for three weeks.
Strictly arithmetically, these “three weeks”
would take
the onset of the depression symptoms to before the arrest. But Ms
Fandie did not give evidence and I do not think it
would be right to
approach the evidence on so narrow a basis. The plaintiff testified
that her matrimonial difficulties caused
her to feel depressed and
that the arrest, which she realised had been engineered by the father
of her children, had aggravated
her feeling of depression. I accept
this evidence as probable.
10 There have been a
number of reported cases dealing with the damages to be awarded for a
relatively short period of unlawful detention.
This kind of case is
regrettably very prevalent in this Division. Such cases can only
serve as guidelines because each case must
be decided on its own
facts.
11 Counsel for the
defendant rightly pointed to the absence of any proof of a malicious
motive on the part of the police and that
the police treated the
plaintiff, on the evidence, in a manner that did not further diminish
the sense of self worth that any arrest
and detention must diminish
in the subject. Against that, I bear in mind that any unlawful arrest
and detention is a serious invasion
of the rights of a person to
privacy and dignity.
12 The plaintiff
testified that she is a well known person in her community and that
when she returned to her duties as an educator,
she found that she
was treated as a criminal by members of her community. Her evidence
established that there is a low incidence
of crime in that area. I
believe the plaintiff on these issues.
13 Taking all the
circumstances into account, I hold that the plaintiff is entitled to
the sum of R75 000 as damages.
14 In her summons,
the plaintiff claimed R100 000 as damages. The plaintiff ought to
have brought her claim in the magistrate’s
court. As between
party and party, she must therefore get costs on the appropriate
magistrate’s court scale. I hold that
the employment of counsel
was a necessary expense which should be allowed by the taxing master
in accordance with the tariff applicable
in the magistrate’s
courts. The costs of a postponement on 16 August 2013 were reserved.
The postponement came about because
no pre-trial conference had been
held. I think that these costs should follow the result.
15 The plaintiff
employed two sets of attorneys of attorneys, in Kuruman and in
Pretoria. Consistent with the principle that she
ought to have
brought her case in the magistrate’s court having jurisdiction,
in this case the court in Kuruman, I hold that
as between party and
party the costs of only one set of attorneys should be allowed.
16 I think that the
plaintiffs liability towards her own lawyers should also be limited.
Counsel for the plaintiff forthrightly
told me that the decision to
litigate in the High Court was the lawyers’ decision, not the
plaintiffs. I shall make an appropriate
order in that regard.
17 I make the
following order:
1 The defendant is
ordered to pay the plaintiff damages in the sum of R75 000;
2 The defendant must
pay the plaintiffs costs of suit, taxed on the appropriate
magistrate’s court scale, including the costs
of counsel but on
the basis that the costs of one set of attorneys only will be allowed
and including the costs which were reserved
on 16 August 2013;
3 The plaintiffs
attorneys will only be entitled to recover from the plaintiff as
between attorney and client those fees and disbursements
which the
plaintiff would reasonably have incurred had the case been conducted
in the Kuruman magistrate’s court.
NB Tuchten
Judge of the High
Court
19 May 2014
1
Much
later, the joint estate was divided: the plaintiff got the house and
its contents and her former husband got the business and
a fleet of
taxis.