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[2013] ZAECMHC 21
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Matu v Minister of Safety and Security and Another (2408/10) [2013] ZAECMHC 21 (31 May 2013)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE HIGH COURT: MTHATHA
CASE NO: 2408/10
Heard on: 27/05/13
Delivered on: 31/05/13
NOT REPORTABLE
In the matter between:
SANDISO THIRDMAN MATU
.................................................................
Plaintiff
and
MINISTER OF SAFETY & SECURITY
.........................................
First
Defendant
SERGEANT NYEZI
....................................................................
Second
Defendant
_____________________________________________________________
JUDGMENT
____________________________________________________________
NHLANGULELA J:
[1] The Court has been asked to determine the
appropriate amount of damages to be awarded to the plaintiff.
[2] In the summons the plaintiff alleged that he is
entitled to payment of R300 000,00 damages under the heads of
general damages
and
contumelia.
In Court it was submitted on
his behalf that the cases of
Peterson v Minister Of Safety And
Security
C/N 1173/2008 (ECG),
Corbett and Honey Vol VI
pp
K6 1–9;
Fubesi v Minister of Safety And Security
C/N
680/2009 (ECG):
Corbett and Honey Vol VI
pp K6 28-33; and
Chaune Engelbrecht v The Minister of Police & 3 Others
C/N
1235/2009 (ECM) are comparable to the present matter and, thus, it
would be proper if a sum of R180 000,000 is awarded
in his
favour.
[3] On the other hand a sum of R90 000,00 was
submitted on behalf of the defendant as being the adequate amount of
damages
that may be fixed by the Court. In support of this submission
the following cases were referred to the attention of the Court:
Minister of Safety And Security v Tyulu
2009 (5) SA 85
(SCA);
and
Mvu v Minister of Safety & Security
2009 (6) SA 82
(GSJ).
[4] A brief summary of the cases referred to the Court
by the parties is the following:
Peterson
: A 33 years old male seasonal fruit
picker sued for
unlawful arrest and detention for 8 hours and the Court
granted him R60 000,00 in general damages.
Fubesi
: An 18 years old male student sued for
unlawful
arrest and detention for 3 days and 18 hours. The Court
granted him R80 000,00 in general damages.
Engelbrecht
: A housewife of 30 years of age was
unlawfully
arrested and detained for 4 hours the Court awarded her
R90 000,00 in damages.
Tyulu
: A magistrate unlawfully arrested and
detained for
15 minutes was awarded a sum of R15 000,00 in
general damages.
Mvu
: A police Inspector wrongfully detained
overnight was awarded R30 000,00 in general
damages.
[5] In the case of
Tyulu, supra,
the Supreme
Court of Appeal stated that the correct approach in cases of the
present kind is to have regard to all the facts of
the case and to
determine the
quantum
of damages on such facts. Previously
decided cases may only serve as a guide as no one case is similar on
the facts with any other.
The Court has to make an estimate of
damages
ex aequo et bono
with an attempt being made to ensure
that damages awarded are commensurate with the injury inflicted:
[6] In estimating damages in this case I have to
exercise discretion taking into account the factors such as the
circumstances of
the delict, the status of the plaintiff, duration
and nature of deprivation of freedom, the high value which our
Constitution places
on the right to physical liberty, the motive
behind the arrest and detention; the awards in previous comparable
cases and the rate
of inflation – See:
J.J. Van Rensburg v
The Minister of Safety And Security
C/N 2344/2009 (ECG), 17 March
2011.
[7] The plaintiff is the Warrant Officer in the South
African Defence Force. He was born in Mqanduli, but he is now
resident in
Pretoria together with his wife and three minor children.
He is a respected man at his place of employment. On Friday 30
January
2009 and at 13h00 he was wrongfully arrested and detained by
the second defendant on a suspicion that he was stealing two of his
own children whom he had removed from Mqanduli to take them back to
school in Pretoria. The arrest took place whilst he was in
a bus
together with the children. The arrest and detention caused him
humiliation and embarrassment in front of the passengers
in the bus
and his local Chief who got to know that he was in detention on a
charge of child stealing. He was caused to sleep on
a cement floor of
the police cell for three nights until he was released on Monday 02
February 2009.
[8] In assessing damages in this case I have to take
into account the fact that the arrest and detention of the plaintiff
did not
really have ramifications beyond deprivation of his liberty.
The second defendant did not act in malice and high handedness in
arresting and detaining the plaintiff. Humiliation suffered by the
plaintiff in the bus, where he was completely unknown to passengers,
and at Mqanduli Police Station, where only the local Chief saw him,
would not amount to
injuria
of great proportions. The incident
did not impact on his honour and dignity at his workplace and
Pretoria residence. The incident
was a manifestation of domestic
problems between him and his wife which was not new to the children.
[9] The decided cases referred to the Court, with the
exception of
Fubesi
and
Mvu
, are not close comparatives
to the present one because they involved a far more serious intrusion
on the personality interests
of the claimants such as honour and good
name. In some of those cases the claimants were assaulted. The
intrusion created by the
unjustifiable arrest and detention upon the
physical freedom of the plaintiff and the inconvenient experience in
sleeping on the
cement floor are the factors that the court must take
into account. Consequently, I am persuaded that a sum of R130 000,00
would be an appropriate award of damages to be made in this case.
[10] In the result the order is hereby made against the
defendant to pay plaintiff a sum of R130 000,00, legal interest
on
the aforesaid sum from the date of judgment to date of final
payment and costs of suit at the High Court scale.
___________________________________
Z.M. NHLANGULELA
JUDGE OF THE HIGH COURT
Counsel for the plaintiff : Adv L. Sambudla
Instructed by : c/o Mvuzo Notyesi Inc
MTHATHA
Counsel for the defendant : Adv K.D. Qitsi
Instructed by : The State Attorney
MTHATHA