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[2014] ZAFSHC 73
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Strydom v Minister of Safety and Security and Another (31353/2007) [2014] ZAFSHC 73 (28 May 2014)
REPUBLIC
OP SOUTH AFRICA
IN THE HIGH COURT
OF S
OUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 3135
3/2007
DATE:
28 MAY 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the Matter between:-
BEN
STRY
DOM
..................................................................................................................
PLAINTIFF
and
MINISTER
OF SAFETY AND
SECURITY
......................................................
FIRST
DEFENDANT
MINISTER
OF JUSTICE
…..........................................................................
SECOND
DEFENDANT
JUDGMENT
KUBUSHI,
J
[1] The plaintiff
instituted action against the defendants for damages for unlawful
arrest and detention and a claim of malicious
prosecution. However,
before me only the first claim of unlawful arrest and detention is
being pursued.
[2] The parties had
agreed to put the following stated case before court on the first
claim. The stated facts were as follows:
“
1)
Plaintiff was arrested pursuant to the warrant of arrest attached
hereto as annexure “A".
2)
He was held in detention at SAPS
Pretoria Central for 4 hours.
3)
Parties agree that if the said warrant
was valid in terms of
section 43
of the
Criminal Procedure Act of
1977
,
then the arrest and detention was
lawful. If the said warrant was however, invalid, then it is
axiomatic that the arrest and detention
were unlawful.
4)
Parties will, after dealing with the
stated case by way of this document and argument, proceed with
quantum, if applicable.’’
However, on the date
of the trial the defendants’ counsel received instructions to
concede the merits on the basis that the
plaintiff was arrested
wrongfully in terms of an invalid warrant. What then remained to be
determined was quantum.
[3]
The plaintiff was the only person who gave evidence at the
trial on quantum. The defendants closed their case without calling
any
witnesses.
[4] The factual
background of the case is that on the 2 March 2006 the plaintiff was
summoned by a member of the South African Police
Service to attend to
the offices of his (the plaintiff) attorney where he was arrested for
murder. The plaintiff was arrested in
terms of an invalid warrant of
arrest issued by the magistrate. He was taken to the Pretoria Central
police station where he was
kept in the cells from l0h00 until 10h38.
After the completion of the paper work he was removed from the police
cells and taken
to the Pretoria magistrate’s court where he was
further detained in the cells from 11H00 until at about 16h00 when he
appeared
before the magistrate. The plaintiff’s estimation is
that he was detained for four hours from the time he was arrested at
his attorney’s offices.
[5] When he finally
appeared before the magistrate it transpired that the docket in
respect of his case had not been sent to the
Director of Public
Prosecution for his/her decision to prosecute the matter. The
magistrate postponed the case for two months with
instructions that
the docket be send to the Director of Public Prosecution for his/her
decision. The Director of Public Prosecution
declined to prosecute
and ordered the institution of an inquest. The plaintiff was also
charged departmentally but was found not
guilty.
[6] The parties are
agreed that the plaintiff should be paid the damages for the unlawful
arrest and detention, what is in dispute
is the amount that must be
pai. The plaintiff is claiming an amount of
R151
000 being R150 000 for the unlawful arrest and detention and Rl 000
for legal fees however the defendants’ counsel submits
that an
amount of R10 000 will be sufficient compensation because the
plaintiff was kept in etention for a very short time.
[7]
In respect of quantum the plaintiff tendered the following
evidence: he was 37 years old at the time of arrest; the arrest and
subsequent
detention affected him emotionally; at work people
regarded him as a criminal; there were rumours and stories of his
perceived
criminality doing the rounds; nothing like this has ever
occurred to him before. The incident had a mood changing effect on
him
and was as a result aggressive towards members of his family -
his wife and child of 5 years they were as a result emotionally
affected. He went for psychological treatment for about three months.
The visits were covered by medical aid. He was not provided
with a
report because he stopped attending the sessions on his own. He
incurred legal fees. He paid his attorney Rl OOO for his
first and
second appearance in court but did not keep the receipts. The fees
charged were low because he knew the attorney personally;
he (the
attorney) was an ex- policeman. He previously worked with the
attorney’s younger brother.
[8]
The parties’ counsel made an issue about the time spent
in detention. The issue being whether the period should be divided
into two periods, namely, the time spent in the police cells and the
time spent in the magistrate court cells. According to the
defendants’ counsel the period of detention attributable to the
first defendant is the time of 38 minutes which the plaintiff
spent
in the police cells. I do not agree. In my opinion the whole period
which the plaintiff is claiming should be attributed
to the first
defendant under whose responsibility the plaintiff was all that time.
[9]
Once
an arrest has been effected, the peace officer must bring the
arrestee before a court as soon as reasonably possible; and at
least
within 48 hours, depending on court hours. Once that has been done,
the authority to detain, that is inherent in the power
to arrest, is
exhausted. The authority to detain further is then within the
discretion of the court.
See
Minister of Safety and Security v Sekhoto
[1]
.
[10]
It is common cause in this instance that the plaintiff was
arrested and initially detained in the police cells at Pretoria
Central
Police Station for 38 minutes. It is also not in dispute that
the plaintiff was further detained in the Pretoria magistrate’s
court cells until 16hOO when he appeared before the magistrate. In my
opinion, the submission by the defendants’ counsel
that no one
is responsible for the plaintiffs detention from the time he was put
in the magistrate’s court cells until he
appeared before the
magistrate has no merit. As it has been stated in paragraph [9] of
this judgment, the authority to detain that
is inherent in the power
to arrest is exhausted only when the accused is brought before a
court. In my view the authority to detain
is continuous: it starts
from the time of arrest and ends only when the accused is before
court. Similarly in this instance the
authority to detain by the
first defendant would have started when the police arrested the
plaintiff and ended at 16hOO when the
plaintiff appeared before the
magistrate. To suggest that by taking the accused to court and place
her/him in the cells is tantamount
to bringing her or him before a
court is untenable.
[11]
Having concluded that the first defendant is liable to pay the
damages claimed by the plaintiff I did not find it necessary to
consider
an issue raised by the defendants’ counsel as to
whether the second defendant has been correctly cited or not.
[12]
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. 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 quantum of damages on
such facts.
See
Minister
of Safety and Security v Tyulu
[2]
.
[13]
The parties’ counsel referred me to a number of
judgments which I shall for purposes of this judgment only consider
as a guide.
I also considered the fact that the time spend in
detention should not be the only factor to consider when awarding
damages of
this nature, all the circumstances must be considered. In
this instance, although the plaintiff spent a relatively short time
in
detention I however found it important to take into account that
he was a police officer and was arrested by his own colleagues.
He
was humiliated by the rumours that were doing the rounds that he was
a criminal and that his relationship with his family was
strained by
his mood swings. My view is that an amount of R10 OOO as suggested by
the defendants’ counsel would not 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 am
thus of the view that a fair and appropriate award of damages in the
circumstances of this case should
be R80 000 for unlawful arrest and
detention and Rl 000 for legal fees.
[14]
It is therefore ordered that the first defendant is to pay the
plaintiff:
1. an amount of R80
000 in respect of damages in respect of claim 1 for his unlawful
arrest and detention.
2. an amount of R1
000 in respect of damages in respect of claim 1 for his legal fees.
3. interest a
tempore morae at the rate of 15.5% from the date of service of the
summons to date of payment.
4. Costs of suit
KUBUSHI J
JUDGE OF THE HIGH
COURT
APPEARANCES
HEARD ON THE: 09 MAY
2014
DATE OF JUDGMENT: 28
MAY 2014
PLAINTIFF’S
COUNSEL: ADV J R BAUWER
PLAINTIFF'S
ATTORNEY: PIET BREEDT ATTORNEYS
DEFENDANT’S
COUNSEL: ADV B MINNAAR
DEFENDANT’S
ATTORNEY: STATE ATTORNEY PRETORIA
[1]
2011 (1) SACR 315
para [42] at 331c
[2]
2009 (5) SA 85
para [26] at 93D - F