Minister of Safety and Security v Seymour (295/05) [2006] ZASCA 71; [2007] 1 All SA 558 (SCA); 2006 (6) SA 320 (SCA) (30 May 2006)

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[2006] ZASCA 71
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Minister of Safety and Security v Seymour (295/05) [2006] ZASCA 71; [2007] 1 All SA 558 (SCA); 2006 (6) SA 320 (SCA) (30 May 2006)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE NO
: 295/05
In the matter between :
THE MINISTER OF SAFETY AND
SECURITY
Appellant
and
SEYMOUR, DENNIS THOMAS
Respondent
__________________________________________________________________________
Before: NAVSA, NUGENT & HEHER JJA
Heard: 2 MAY 2006
Delivered:
30 MAY 2006
Summary: Unlawful arrest and
detention – amount of award.
Neutral citation: This judgment
may be referred to as The Minister of Safety and Security v Seymour,
D T [2006] SCA 67 (RSA)
__________________________________________________________________________
J U D G M E N T
__________________________________________________________________________
NUGENT JA
NUGENT JA
:
[1] The respondent, Mr Seymour, was unlawfully arrested and
imprisoned by the state for a period of five days. For that he was
awarded
general damages of R500 000 by the Johannesburg High Court.
This is an appeal against that award. It comes before us with the
leave
of that court.
[2] At the time Seymour was imprisoned he was 63 years old. He lived
on an agricultural small-holding in the Ennerdale district.
Seymour
was the chairman of an association of small-scale farmers from
previously-disadvantaged groups that he had been instrumental
in
forming. He had also taken the initiative to create a co-operative
to establish and operate a dairy. The members of the co-operative
were some of the members of the association, who were to contribute
grants they were entitled to from the government, and it was
otherwise to be funded with assistance from government agencies and
the Danish International Development Agency. Seymour was the
managing-director of the co-operative and received a salary of R23
000 per month.
[3] Some members of the association who had been excluded from the
co-operative believed that financial irregularities were taking
place
and reported their belief to the police. As a result, a certain
Superintendent Smith, of the commercial crime unit of the police,
obtained from Seymour copies of the accounts and other documents of
the co-operative. Some time later, on Friday 29 December 2000,
at
about 16h30, Smith arrived at Seymour’s premises. He asked Seymour
to accompany him to the Ennerdale police station to make
a statement.
Seymour was at first reluctant but eventually he agreed to do so.
He followed Smith to the police station in his own
vehicle. When
they arrived at the police station Smith instructed the duty officer
to arrest Seymour. Seymour was informed that
he was being arrested
on a charge of fraud and he was informed of his rights. Smith then
departed.
[4] The duty officer permitted Seymour to telephone his daughter, who
in turn telephoned other members of his family and informed
them what
had occurred. Seymour’s family arrived at the police station and
implored the police to release him but to no avail.
Later Seymour
was locked in a cell where he spent the night alone.
[5] Seymour suffered from high blood-pressure. The following morning
he felt ill and experienced pains in his chest. He informed
his son,
who had arrived at the police station to see him, and his doctor was
summoned. The doctor examined Seymour in an interview-room
and
diagnosed hypertension with angina. He told the police that Seymour
should be admitted to a medical high-care unit. Such a
unit existed
at the Rand Clinic and the doctor arranged for the resident physician
to take over Seymour’s further treatment when
he arrived.
[6] Notwithstanding those medical instructions Seymour remained at
the Ennerdale police station for the remainder of the day. Members
of his family were in constant attendance and were given free access
to Seymour. Later in the day the doctor was informed by a family
member that Seymour had not been taken to the clinic. The doctor
telephoned the police and repeated his instruction that Seymour
should be taken to the clinic. He was told that the police were
waiting for a vehicle to enable them to do so.
[7] At about 17h00 Seymour was taken in the rear of a police van to
the Johannesburg Central police station. On his arrival his
fingerprints were taken and he was placed in a cell. The police at
Johannesburg had not been informed that Seymour was to be taken
to
the clinic, nor did Seymour tell them. Meanwhile, Seymour’s doctor
had again been alerted. At about 18h00 he arrived at the
police
station and repeated that Seymour required medical attention.
Seymour was then taken to the Rand Clinic and admitted to the
intensive-care unit at about 20h05. He slept through the night. The
following day he was seen by a cardiologist and was transferred
to a
general ward.
[8] On Wednesday 3 January 2001 Seymour, in the company of his
attorney, was taken by Smith, apparently from the clinic, to the
magistrates’
court at Vereeniging. The chief prosecutor declined
to pursue the charge of fraud that had been levelled at Seymour and
he was discharged.
[9] There is no indication in the evidence that Seymour received any
medical treatment after he was discharged. But on 15 May 2003,
after
the present claim had been instituted, he consulted a psychiatrist to
assess his condition. The psychiatrist diagnosed moderate
to severe
symptoms of depression and symptoms of post-traumatic stress, and
expressed the view that the symptoms would respond to
treatment.
Seymour attributed those symptoms to his incarceration. No doubt
that may have played a role, but in my view the evidence
does not
exclude other factors. In particular, his co-operative project had
by then foundered, and that may also have played a role.
Seymour did
not submit himself to treatment for the symptoms that had been
diagnosed. Asked why he had not done so Seymour responded
that he
relied rather upon his Christian convictions to see him through and
expected that payment of compensation by the state would
enable him
to put the matter behind him.
[10] In its plea the state (nominally represented by the appellant)
admitted that Seymour was arrested and detained unlawfully. The
particulars of claim went rather broader, alleging that the conduct
of Smith was in other respects unlawful. In my view the conduct
of
Smith, described more fully in the evidence, is a matter to be taken
account of in assessing the degree of humiliation to which
Seymour
was subjected, but was not established by the evidence to constitute
a separate act of wrongful conduct. That is how the
matter was dealt
with by the court below and by counsel in argument before us. What
was in issue at the trial, and now before us,
is only what amount is
appropriate to compensate Seymour for the wrong that was done.
[11] In
Protea Assurance Co Ltd v Lamb,
1
Potgieter JA said the following in relation to general damages for
bodily injury (the principles apply equally to a case like the
present one) which was repeated more recently by this court in
Road
Accident Fund v Marunga
:
2
‘
It is settled law that the trial Judge has a large
discretion to award what he in the circumstances considers to be a
fair and adequate
compensation to the injured party for these
sequelae
of his injuries. Further, this Court will not
interfere unless there is a “substantial variation” or as it is
sometimes called
a “striking disparity” between what the trial
Court awards and what this Court considers ought to have been
awarded.’
[12] In assessing the appropriate award to make the court below
considered awards that had been made in numerous earlier cases. The
learned judge said that the case that he found to be most
illuminating was
May v Union Government
.
3
In that case an advocate of high standing was arrested on a charge
relating to dishonesty and tried six months later. At his trial
the
plaintiff was acquitted after the first witness had given evidence.
He sued the state for wrongful arrest and malicious prosecution.
Broome J found that the prosecution was not malicious but that the
plaintiff had been arrested unlawfully and then unlawfully detained
for some hours. For that he was awarded £1 000. In making
the award Broome J said the following:
4
‘
The plaintiff is, and was then, an advocate of
standing, and in actual practice. He was a professional man of good
reputation in the
community. He was the author of legal text books
and of other works in more than one branch of literature. His arrest
was unceremonious
and was given wide publicity in the press. On the
other hand, his period of actual detention amounted only to a few
hours, and during
that period he was shown some consideration. It was
said that the shock of arrest impaired his health, which was not good
at the
time as he had suffered a coronary thrombosis some years
before and lived under the constant threat of a further attack. But
in fact
no further attack occurred, and I do not think that his
damages were appreciably aggravated by any actual impairment of his
health.
In my opinion, in all the circumstances, he is entitled to a
substantial sum. Our law has always regarded the deprivation of
personal
liberty as a serious injury, and where the deprivation
carries with it the imputation of criminal conduct of which there was
no reasonable
suspicion the injury is very serious indeed. Taking
into account all the relevant circumstances, I find that the sum of
£1,000
would be an appropriate amount.’
[13] In the present case the learned judge in the court below said
that the equivalent of that award in present-day terms was ‘in
the
order of R350 000 to R400 000’. Observing that that case
was decided ‘40 years before we had constitutionally
enshrined
rights to freedom and dignity and much else besides’ and that ‘the
courts must move, however glacially, to reflect
in their awards for
damages in cases of this nature, the change in values which have
occurred not only in society as a whole but
which we as judges are
expected to apply’ he concluded as follows:
‘
I wish to emphasise that my conclusion is this: a
shift, even though it is not a so-called “sea change”, must be
manifested in
the value which the courts attach to freedom and,
correspondingly, the value to be applied to a person’s deprivation
thereof.’
[14] I do not think that the courts in earlier cases placed less
value on personal liberty than ought to be placed on it today.
Indeed, what was said in
May
shows the contrary. Nor do I
think there is any basis for concluding that awards that were made at
that time reflect a more tolerant
judicial view of incursions upon
personal liberty. It was precisely because personal liberty has
always been judicially valued that
the incursions that were made upon
it by the legislature and the executive at that time were so odious.
The real import of the Constitution
has not been to enhance the
inherent value of liberty, which has been constant, albeit that it
was systematically undermined, but
rather to ensure that those
incursions upon it will not recur. To the extent that the learned
judge placed a jurisprudential premium
on personal liberty that was
absent before now,
5
in my view it was misdirected.
[15] The learned judge also seems to have misdirected himself in
relation to the starting point for his assessment. The manner in
which he arrived at the present-day estimate of the award in
May
was not expressed, but it is difficult to see how he arrived at his
estimate of R350 000 to R400 000. Calculated according
to
the consumer price index referred to in Robert J Koch: The Quantum
Year Book 2006, the present-day value of that award is approximately
R116 000.
6
But that apart, in my view the amount that was awarded in the
present case reflects a misdirection that seems to go rather deeper.
[16] As pointed out by Botha AJA in
AA Onderlinge Assuransie
Assosiasie Bpk v Sodoms
7
,
it is generally undesirable to adhere slavishly to a consumer price
index in adjusting earlier awards. But provided that stricture
is
borne in mind it is useful as a general guide to the devaluation of
money. In the cases that follow I have added, in brackets,
the value
of the relevant award adjusted according to the indices in Koch.
8
[17] The assessment of awards of general damages with reference to
awards made in previous cases is fraught with difficulty. The
facts
of a particular case need to be looked at as a whole and few cases
are directly comparable. They are a useful guide to what
other
courts have considered to be appropriate but they have no higher
value than that. As pointed out by Potgieter JA in
Protea
Assurance
, after citing earlier decisions of this court:
9
‘
The above quoted passages from decisions of this
Court indicate that, to the limited extent and subject to the
qualifications therein
set forth, the trial Court or the Court of
Appeal, as the case may be, may pay regard to comparable cases. It
should be emphasised,
however, that this process of comparison does
not take the form of a meticulous examination of awards made in other
cases in order
to fix the amount of compensation; nor should the
process be allowed so to dominate the enquiry as to become a fetter
upon the Court’s
general discretion in such matters. Comparable
cases, when available, should rather be used to afford some guidance,
in a general
way, towards assisting the Court in arriving at an award
which is not substantially out of general accord with previous awards
in
broadly similar cases, regard being had to all the factors which
are considered to be relevant in the assessment of general damages.
At the same time it may be permissible, in an appropriate case, to
test any assessment arrived at upon this basis by reference to
the
general pattern of previous awards in cases where the injuries and
their sequelae may have been either more serious or less than
those
in the case under consideration.’
[18] The dangers of relying excessively on earlier awards are well
illustrated by comparing the award in
May
to the award that
was made in
Maphalala v Minister of Law and Order
.
10
In
Maphala
the plaintiff was arrested on 23 June 1992 and
released in consequence of an order of court on 16 September 1992. He
was immediately
arrested again and released only on 19 November 1992.
During the period that he was detained the plaintiff was held in
solitary confinement,
mostly incommunicado, for 150 days. While in
detention he was also tortured. In a comprehensive and closely
reasoned judgment, and
after referring to the decisions in
Ramakulukusha v Commander, Venda National Force,
11
and
Minister of Justice v Hofmeyr
12
(both of which the court considered to be less serious) Coetzee J
awarded the plaintiff R145 000 (R300 000)
13
for his unlawful arrest and detention. (He was awarded an additional
R35 000 for assault.) Needless to say, the circumstances
in that
case were gross compared to those in
May
. Whether the award
in May was excessive, or the award in
Maphala
was niggardly,
is beside the point. I use them only to illustrate that the gross
disparity of the facts in each case is not reflected
in the
respective awards and neither is in those circumstances a safe guide
to what is appropriate.
[19] The following awards also provide some indication of how other
courts have viewed incursions upon personal liberty (they are
by no
means exhaustive of the cases that have confronted the issue). In
Solomon v Visser,
14
a 48 year old businessman who was detained for seven days, first in a
police cell and then in a prison, was awarded R4 000 (R136 000).
In
Areff v Minister of Polisie,
15
this court awarded a 41 year old businessman who was arrested and
detained for about two hours R 1000 (R24 000). In
Liu Quin Ping v
Akani Egoli (Pty) Ltd,
16
a businessman who was unlawfully detained for about three hours was
awarded R`12 000 (R16 978). In
Manase v Minister of Safety and
Security,
17
in which a 65 year old businessman was unlawfully detained for 49
days, incarcerated at times with criminals, the sum of R90 000
(R102 000) was awarded. In
Seria v Minister of Safety and
Security,
18
a professional man who was arrested and detained in a police cell for
about 24 hours, for a time with a drug addict, was awarded
R50 000
(R52 000).
[20] Money can never be more than a crude solatium for the
deprivation of what in truth can never be restored and there is no
empirical
measure for the loss. The awards I have referred to
reflect no discernable pattern other than that our courts are not
extravagant
in compensating the loss. It needs also to be kept in
mind when making such awards that there are many legitimate calls
upon the
public purse to ensure that other rights that are no less
important also receive protection.
[21] In the present case Seymour was deprived of his liberty for five
days. Throughout his detention at the police station he had
free
access to his family and medical adviser. He suffered no degradation
beyond that that is inherent in being arrested and detained.
After
the first period of about 24 hours the remainder of the detention was
in a hospital bed at the Rand Clinic. There can be
no doubt that the
experience was throughout traumatic and caused him great distress.
But yet there were no consequences that were
of sufficient concern to
warrant medical attention after Seymour was released. As to the
continuing depression and anxiety I am
not sure that that can be
attributed solely to the arrest and detention. Indeed, in his own
words, the making of an award will enable
him to finally put the
matter behind him. Bearing all the circumstances in mind in my view
an appropriate award is the sum of R90
000. That is so startlingly
disparate from the award made by the court below as to warrant
interference with the award on those grounds
alone.
[22] Accordingly the appeal is upheld with costs. Paragraph (a) of
the order of the court below is set aside and the following paragraph
is substituted:
‘(a) The sum of R90 000.’
_________________
R W NUGENT
JUDGE OF
APPEAL
NAVSA JA ) Concur
HEHER JA )
1
1971 (1) SA 530
(A) 534H-535A:
2
2003 (5) SA 164
(SCA).
3
1954 (3) SA 120
(N).
4
At 130C-F.
5
Cf
Fose v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC) esp para 67.
6
The index for 1954 was 66,5.
7
1980 (3) SA 134
(A) 141G-H.
8
The index for 2006 is 3 847.
9
535H-536B.
10
Unreported decision of the Witwatersrand Local Divison under Case
no. 29537/93, given on 10 February 1995.
11
1989 (2) SA 813
(VSC).
12
[1993] ZASCA 40
;
1993 (3) SA 131
(A).
13
The index for 1995 is 1 863.
14
1972 (2) SA 327
(C). The 1972 index is 113.
15
1977 (2) SA 900
(A). Esp 914H-915A. The 1977 index is 194.
16
2000 (4) SA 68
(W). The 2000 index is 2 719.
17
2003 (1) SA 567
(Ck). The 2003 index is 3 392.
18
2005 (5) SA 130
(C). The 2005 index is 3 681.